LEGAL ETHICS
INTRODUCTION
A. Definition of Terms
a. Legal Ethics is the embodiment of all principles of
morality and refinement that should govern the conduct
of every member of the bar.
-broadly defined as the living of the spirit of the
profession, which limits yet uplifts it as a livelihood.
(Agpalo 2009)
-branch of moral science which treats of the duties
which an attorney owes to the court, to his client, to his
colleagues in the profession and to the public.
b. Terms use to describe a member of the legal profession
a. Lawyer, Attorney, Attorney-at-law-one skilled in
law
b. Practicing Lawyer
c. Trial Lawyer
d. Advocate- a person learned in the law and duly
admitted to practice, who advises a client and
pleads for him in court
e. Barrister-a person entitled to practice as an
advocate or counsel in superior courts in England
f. Counsel or Counselor-an advocate or leader, a
member of the legal profession.
g. Proctor, Solicitor-a person prosecuting or
defending suits in courts of chancery (7 CJS 702-
703)
h. Spanish: Abogado
i. Filipino: Manananggol
The term refers to that class of persons who by license are officers of the
court empowered to appear, prosecute, and defend. A person who is a
member of the Philippine Bar who, by warrant of another, practices law,
or acts professionally in legal formalities.
Those who passed the Sharia Bar not entitled to be called Attorneys
unless admitted to the Philippine Bar.
c. Counsel de parte: An attorney retained by a party
litigant, usually for a fee, to prosecute or defend his
cause in court.
Implies freedom of choice either on the attorney or the
litigant.
d. Counsel de oficio: Attorney appointed by the court.
B.
To defend an indigent defendant in a criminal action.
To represent a destitute party.
e. Attorney of record: Attorney whose name, together with
his address, is entered in the record of the case as the
designated counsel of the party litigant.
To whom judicial notices are sent.
f. A lawyer of counsel is an experienced lawyer, who
is usually a retired member of judiciary employed by law
firms as consultant.
g. Amicus Curiae is: An experienced and impartial
attorney invited by the court to appear and help in the
disposition of issues submitted to it.
It implies friendly intervention of counsel to call the
C.
attention of the court to some matters of law or facts
which might otherwise escape its notice and in regard
to which it might go wrong.
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Appears in court not to represent any particular party
but only to assist the court.
h. Amicus Curiae par excellence bar associations who
appear in court as amici curiae or friends of the court.
Acts merely as a consultant to guide the court in a
doubtful question or issue pending before it.
i. Bar refers to the legal profession.
j. Bench refers to the judiciary.
k. Lawyer this is the general term for a person trained in
the law and authorized to advice and represent others
in legal matters
l. Attorneys-At-Lawthat class of persons who are
licensed officers of the courts empowered to appear,
prosecute and defend, and upon whom peculiar duties,
responsibilities and liabilities are developed by law as a
consequence.
m. Attorney in fact- simply an agent whose authority is
strictly limited by the instrument appointing him. His
authority is provided in a special power of attorney or
general power of attorney or letter of attorney. He is not
necessarily a lawyer.
n. Bar Associationan association of members of the legal
profession like the IBP where membership is integrated
or compulsory.
o. House Counselone who acts as attorney for business
though carried as an employee of that business and not
as an independent lawyer.
p. Lead Counsel the counsel on either side of a litigated
action who is charged with the principal management
and direction of a partys case, as distinguished from
his juniors or subordinates.
q. Practicing Lawyerone engaged in the practice of law
who by license are officers of the court and who
are empowered to appear, prosecute and defend a
clients cause.
r. Pro se: is a Latin phrase meaning "for oneself" or "on
one's own behalf". This status is sometimes known as
propria persona (abbreviated to "proper"). In England
and Wales the comparable status is that of "litigant in
person".
Power to regulate practice of law
Art VIII, Sec 5(5) 1987 Constitution: Promulgate rules
concerning the protection and enforcement of constitutional
rights, pleading, practice, and procedure in all courts, the
admission to the practice of law, the integrated bar, and legal
assistance to the underprivileged. Such rules shall provide a
simplified and inexpensive procedure for the speedy
disposition of cases, shall be uniform for all courts of the same
grade, and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-judicial
bodies shall remain effective unless disapproved by the
Supreme Court.
Duties of Attorneys: Rule 138, Sec 20 : It is the duty of
an attorney:
(a) To maintain allegiance to the Republic of the Philippines
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and to support the Constitution and obey the laws of the
Philippines.
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LEGAL ETHICS
(b) To observe and maintain the respect due to the courts of
justice and judicial officers;
(c) To counsel or maintain such actions or proceedings only
as appear to him to be just, and such defenses only as he
believes to be honestly debatable under the law.
(d) To employ, for the purpose of maintaining the causes
confided to him, such means only as are consistent with truth
and honor, and never seek to mislead the judge or any judicial
officer by an artifice or false statement of fact or law;
(e) To maintain inviolate the confidence, and at every peril to
himself, to preserve the secrets of his client, and to accept no
compensation in connection with his client's business except
from him or with his knowledge and approval;
(f) To abstain from all offensive personality and to advance
no fact prejudicial to the honor or reputation of a party or
witness, unless required by the justice of the cause with which
he is charged;
(g) Not to encourage either the commencement or the
continuance of an action or proceeding, or delay any man's
cause, from any corrupt motive or interest;
(h) Never to reject, for any consideration personal to himself,
the cause of the defenseless or oppressed;
(i) In the defense of a person accused of crime, by all fair and
honorable means, regardless of his personal opinion as to the
guilt of the accused, to present every defense that the law
permits, to the end that no person may be deprived of life or
liberty, but by due process of law.
D. Four Fold Duties of a Lawyer
i. Duty to the society: A lawyer should not violate his
responsibility to society, exemplar for righteousness, ready to
render to legal aid, foster social reforms, guardian of due
process, aware of special role in the solution of special
problems and be always ready to lend assistance to the study
and solution of social problems.
ii. Duty to the legal profession: A lawyer must show candor,
fairness, courtesy and truthfulness, avoid encroachment in
the business of other lawyers and uphold the honor of legal
profession
iii. Duty to the courts: A lawyer must defend against criticism,
uphold authority and dignity, obey order and processes, and
assist in the administration of justice.
iv. Duty to the client: A lawyer must give his entire devotion to
his clients interest.
E. Practice of Law is a Profession and not a Business: A
profession as a group of men and women pursuing a learned
art as a common calling in the spirit of public service.
i. 3 ELEMENTS
- Organization
- Learning
- Spirit of public service
ii. Purpose: public service not economic or not profit
LEGAL PROFESSION
A. State Regulation
a. Supreme Court: Art VIII, Sec 5(5) 1987
Constitution: Promulgate rules concerning the
protection and enforcement of constitutional
rights, pleading, practice, and procedure in all
courts, the admission to the practice of law, the
integrated bar, and legal assistance to the
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underprivileged. Such rules shall provide a
simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for
all courts of the same grade, and shall not
diminish, increase, or modify substantive rights.
Rules of procedure of special courts and quasi-
judicial bodies shall remain effective unless
disapproved by the Supreme Court.
b. Congress: Art XII Sec 14 (2) 1987 Constitution:
The practice of all professions in the Philippines
shall be limited to Filipino citizens, save in cases
prescribed by law.
Art XIII Sec 10 1987 Constitution: All courts
existing at the time of the ratification of this
Constitution shall continue to exercise their
jurisdiction, until otherwise provided by law. The
provisions of the existing Rules of Court, judiciary
acts, and procedural laws not inconsistent with
this Constitution shall remain operative unless
amended or repealed by the Supreme Court or the
Congress.
JUDICIAL CONTROL
a. Admission to practice is a judicial function-inherent
power of the SC provided by the Constitution
The power to admit applicants to the practice of law is judicial in
nature and involves the exercise of judicial discretion.
Traditionally exercised by the Supreme Court as an inherent part
of its judicial power.
Rationale comes from the nature of a judicial function and the role
played by attorneys in the administration of justice.
The admission to the practice of law requires:
1. Previously established Rules and Principles. (By
Constitutional mandate, a primary responsibility of the
Supreme Court)
2. Concrete Facts, past or present, affecting determinate
individuals. (Brought about by the applicant for admission to
the bar)
3. A Decision as to whether the facts are governed by rules
and principles. (Involves judicial adjudication which
essentially a function of the court)
To enable the court to properly discharge its responsibility for the
efficient and impartial administration and to elevate and maintain
the standard of the legal profession requires that it must have the
primary duty to decide:
A. Who may be admitted to the bar as one of its officers
B. What are the causes for disciplinary action against him
C. Whether he should be disciplined, suspended,
disbarred, or reinstated
Any legislative or executive judgment substituting that of the
Supreme Court in the admission to the practice of law or
suspension, debarment, reinstatement infringes upon and
constitutes as an invalid exercise of the legislative or executive
power.
b. Legislative power to repeal, alter or supplement
The 1935 and 1973 Constitutions provide that the Supreme Court
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shall have the power to promulgate rules concerning the admission
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LEGAL ETHICS
to the practice of law but may be repealed, altered, or
supplemented by the Batasang Pambansa.
The 1987 Constitution deleted such provision.
The legislature may, however, enact laws with respect to the first
requisite for the admission to the bar (Previously established Rules
and Principles) that applicants should observe.
A. The legislature may pass a law for additional
qualifications for candidates for admission to the
practice or filling up deficiencies in the requirements for
admission to the bar.
B. Such law may not, however, be given retroactive effect
so as to entitle a person, not otherwise qualified, to be
admitted.
C. Such law will not preclude the Supreme Court from
fixing other qualifications and requirements.
Reason: Legislature has no power to grant a layman the privilege
to practice law nor control the Supreme Court in its responsibility
to decide who may be admitted.
The Legislature, in the exercise of its POLICE POWER may,
however, enact laws regulating the practice of law to protect the
public and promote the public welfare.
A. A law declaring illegal and punishable the
unauthorized practice of law.
B. Require further examination for any attorney desiring to
practice before any quasi-judicial or administrative
agency.
Whatever law may be passes is merely in aid of the judicial power
to regulate.
But the legislature MAY NOT pass a law that will control the
Supreme Court in the performance of its function to decide who
may enjoy the privilege of practicing law and any law of that kind is
unconstitutional as an invalid exercise of legislative power.
RA 972 (the Bar Flunkers Act) aims to admit to the Bar, those
candidates who suffered from insufficiency of reading materials
and inadequate preparation. By its declared objective, the law
is contrary to public interest because it qualifies 1,094 law
graduates who confessedly had inadequate preparation for the
practice of the profession, as was exactly found by this Tribunal
in the aforesaid examinations. An adequate legal preparation is
one of the vital requisites for the practice of law that should be
developed constantly and maintained firmly.
c. Executive power in relation to practice
The Chief Executive cannot, by executive order, admit a person to
the practice of law nor can he, by treaty with another country,
modify the rules on the admission to the bar.
A treaty, cannot be so interpreted as to entitle a holder of a law
degree obtained in another country to practice law in this country
without complying with the requirements of existing law.
Accordingly, a Filipino citizen who obtained a law degree in
another country is not entitled to be admitted to the Philippine
Bar without complying with the requirements.
Prescribing standards for law schools
CHED acts as an agency or in aid of the Supreme Court in the
exercise of its primary authority to determine who may be admitted
to practice since such authority is by Constitutional mandate and
rests and remains exclusively with the high tribunal.
CHED merely:
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1. Exercises regulatory power over law schools or certifies as
to the satisfactory completion of the prescribed courses of
law study by an applicant for admission to the bar
examination.
2. Assumes some responsibility for the quality of instruction
and training required of an applicant for membership in the
bar.
d. Supreme court incidental powers (Incidental to its
primary authority to decide who may be admitted to the
bar):
1. Fixing minimum standards of instruction for all law schools
to observe.
2. Setting up of the necessary administrative
machinery to determine compliance therewith.
3. By way of sanction, refusal to admit to the bar exams law
graduates from schools failing to meet those standards. May
be implemented through accreditation
B. What Constitute Practice of Law
G.R. No. 100113 September 3, 1991
RENATO CAYETANO, petitioner,
vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION
ON APPOINTMENT, and HON. GUILLERMO CARAGUE, in his
capacity as Secretary of Budget and Management, respondents.
Renato L. Cayetano for and in his own behalf.
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for
petitioner.
PARAS, J.:p
We are faced here with a controversy of far-reaching proportions. While
ostensibly only legal issues are involved, the Court's decision in this case
would indubitably have a profound effect on the political aspect of our
national existence.
The 1987 Constitution provides in Section 1 (1), Article IX-C:
There shall be a Commission on Elections composed of a Chairman and
six Commissioners who shall be natural-born citizens of the Philippines
and, at the time of their appointment, at least thirty-five years of age,
holders of a college degree, and must not have been candidates for any
elective position in the immediately preceding -elections. However, a
majority thereof, including the Chairman, shall be members of the
Philippine Bar who have been engaged in the practice of law for at least
ten years. (Emphasis supplied)
The aforequoted provision is patterned after Section l(l), Article XII-C of
the 1973 Constitution which similarly provides:
There shall be an independent Commission on Elections composed of a
Chairman and eight Commissioners who shall be natural-born citizens
of the Philippines and, at the time of their appointment, at least thirty-five
years of age and holders of a college degree. However, a majority
thereof, including the Chairman, shall be members of the Philippine Bar
who have been engaged in the practice of law for at least ten years.'
(Emphasis supplied)
Regrettably, however, there seems to be no jurisprudence as to what
constitutes practice of law as a legal qualification to an appointive office.
Black defines "practice of law" as:
The rendition of services requiring the knowledge and the application of
legal principles and technique to serve the interest of another with his
consent. It is not limited to appearing in court, or advising and assisting
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in the conduct of litigation, but embraces the preparation of pleadings,
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LEGAL ETHICS
and other papers incident to actions and special proceedings,
conveyancing, the preparation of legal instruments of all kinds, and the
giving of all legal advice to clients. It embraces all advice to clients and
all actions taken for them in matters connected with the law. An attorney
engages in the practice of law by maintaining an office where he is held
out to be-an attorney, using a letterhead describing himself as an
attorney, counseling clients in legal matters, negotiating with opposing
counsel about pending litigation, and fixing and collecting fees for
services rendered by his associate. (Black's Law Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of cases in court. (Land
Title Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650)
A person is also considered to be in the practice of law when he:
... for valuable consideration engages in the business of advising person,
firms, associations or corporations as to their rights under the law, or
appears in a representative capacity as an advocate in proceedings
pending or prospective, before any court, commissioner, referee, board,
body, committee, or commission constituted by law or authorized to
settle controversies and there, in such representative capacity performs
any act or acts for the purpose of obtaining or defending the rights of
their clients under the law. Otherwise stated, one who, in a
representative capacity, engages in the business of advising clients as
to their rights under the law, or while so engaged performs any act or
acts either in court or outside of court for that purpose, is engaged in the
practice of law. (State ex. rel. Mckittrick v..C.S. Dudley and Co., 102 S.W.
2d 895, 340 Mo. 852)
This Court in the case of Philippine Lawyers Association v.Agrava, (105
Phil. 173,176-177) stated:
The practice of law is not limited to the conduct of cases or litigation in
court; it embraces the preparation of pleadings and other papers incident
to actions and special proceedings, the management of such actions and
proceedings on behalf of clients before judges and courts, and in
addition, conveying. In general, all advice to clients, and all action taken
for them in matters connected with the law incorporation services,
assessment and condemnation services contemplating an appearance
before a judicial body, the foreclosure of a mortgage, enforcement of a
creditor's claim in bankruptcy and insolvency proceedings, and
conducting proceedings in attachment, and in matters of estate and
guardianship have been held to constitute law practice, as do the
preparation and drafting of legal instruments, where the work done
involves the determination by the trained legal mind of the legal effect of
facts and conditions. (5 Am. Jr. p. 262, 263). (Emphasis supplied)
Practice of law under modem conditions consists in no small part of work
performed outside of any court and having no immediate relation to
proceedings in court. It embraces conveyancing, the giving of legal
advice on a large variety of subjects, and the preparation and execution
of legal instruments covering an extensive field of business and trust
relations and other affairs. Although these transactions may have no
direct connection with court proceedings, they are always subject to
become involved in litigation. They require in many aspects a high
degree of legal skill, a wide experience with men and affairs, and great
capacity for adaptation to difficult and complex situations. These
customary functions of an attorney or counselor at law bear an intimate
relation to the administration of justice by the courts. No valid distinction,
so far as concerns the question set forth in the order, can be drawn
between that part of the work of the lawyer which involves appearance
in court and that part which involves advice and drafting of instruments
in his office. It is of importance to the welfare of the public that these
manifold customary functions be performed by persons possessed of
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adequate learning and skill, of sound moral character, and acting at all
times under the heavy trust obligations to clients which rests upon all
attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] ,
p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313,
quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179
A. 139,144). (Emphasis ours)
The University of the Philippines Law Center in conducting orientation
briefing for new lawyers (1974-1975) listed the dimensions of the
practice of law in even broader terms as advocacy, counselling and
public service.
One may be a practicing attorney in following any line of employment in
the profession. If what he does exacts knowledge of the law and is of a
kind usual for attorneys engaging in the active practice of their
profession, and he follows some one or more lines of employment such
as this he is a practicing attorney at law within the meaning of the statute.
(Barr v. Cardell, 155 NW 312)
Practice of law means any activity, in or out of court, which requires the
application of law, legal procedure, knowledge, training and experience.
"To engage in the practice of law is to perform those acts which are
characteristics of the profession. Generally, to practice law is to give
notice or render any kind of service, which device or service requires the
use in any degree of legal knowledge or skill." (111 ALR 23)
The following records of the 1986 Constitutional Commission show that
it has adopted a liberal interpretation of the term "practice of law."
MR. FOZ. Before we suspend the session, may I make a manifestation
which I forgot to do during our review of the provisions on the
Commission on Audit. May I be allowed to make a very brief statement?
THE PRESIDING OFFICER (Mr. Jamir).
The Commissioner will please proceed.
MR. FOZ. This has to do with the qualifications of the members of the
Commission on Audit. Among others, the qualifications provided for by
Section I is that "They must be Members of the Philippine Bar" I am
quoting from the provision "who have been engaged in the practice
of law for at least ten years".
To avoid any misunderstanding which would result in excluding
members of the Bar who are now employed in the COA or Commission
on Audit, we would like to make the clarification that this provision on
qualifications regarding members of the Bar does not necessarily refer
or involve actual practice of law outside the COA We have to interpret
this to mean that as long as the lawyers who are employed in the COA
are using their legal knowledge or legal talent in their respective work
within COA, then they are qualified to be considered for appointment as
members or commissioners, even chairman, of the Commission on
Audit.
This has been discussed by the Committee on Constitutional
Commissions and Agencies and we deem it important to take it up on
the floor so that this interpretation may be made available whenever this
provision on the qualifications as regards members of the Philippine Bar
engaging in the practice of law for at least ten years is taken up.
MR. OPLE. Will Commissioner Foz yield to just one question.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is
equivalent to the requirement of a law practice that is set forth in the
Article on the Commission on Audit?
MR. FOZ. We must consider the fact that the work of COA, although it is
auditing, will necessarily involve legal work; it will involve legal work. And,
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therefore, lawyers who are employed in COA now would have the
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LEGAL ETHICS
necessary qualifications in accordance with the Provision on
qualifications under our provisions on the Commission on Audit. And,
therefore, the answer is yes.
MR. OPLE. Yes. So that the construction given to this is that this is
equivalent to the practice of law.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Thank you.
... ( Emphasis supplied)
Section 1(1), Article IX-D of the 1987 Constitution, provides, among
others, that the Chairman and two Commissioners of the Commission on
Audit (COA) should either be certified public accountants with not less
than ten years of auditing practice, or members of the Philippine Bar who
have been engaged in the practice of law for at least ten years.
(emphasis supplied)
Corollary to this is the term "private practitioner" and which is in many
ways synonymous with the word "lawyer." Today, although many
lawyers do not engage in private practice, it is still a fact that the majority
of lawyers are private practitioners. (Gary Munneke, Opportunities in
Law Careers [VGM Career Horizons: Illinois], [1986], p. 15).
At this point, it might be helpful to define private practice. The term, as
commonly understood, means "an individual or organization engaged in
the business of delivering legal services." (Ibid.). Lawyers who practice
alone are often called "sole practitioners." Groups of lawyers are called
"firms." The firm is usually a partnership and members of the firm are the
partners. Some firms may be organized as professional corporations and
the members called shareholders. In either case, the members of the
firm are the experienced attorneys. In most firms, there are younger or
more inexperienced salaried attorneys called "associates." (Ibid.).
The test that defines law practice by looking to traditional areas of law
practice is essentially tautologous, unhelpful in defining the practice of
law as that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics
[West Publishing Co.: Minnesota, 1986], p. 593). The practice of law is
defined as the performance of any acts . . . in or out of court, commonly
understood to be the practice of law. (State Bar Ass'n v. Connecticut
Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting
Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]).
Because lawyers perform almost every function known in the commercial
and governmental realm, such a definition would obviously be too global
to be workable.(Wolfram, op. cit.).
The appearance of a lawyer in litigation in behalf of a client is at once the
most publicly familiar role for lawyers as well as an uncommon role for
the average lawyer. Most lawyers spend little time in courtrooms, and a
large percentage spend their entire practice without litigating a case.
(Ibid., p. 593). Nonetheless, many lawyers do continue to litigate and the
litigating lawyer's role colors much of both the public image and the self
perception of the legal profession. (Ibid.).
In this regard thus, the dominance of litigation in the public mind reflects
history, not reality. (Ibid.). Why is this so? Recall that the late Alexander
SyCip, a corporate lawyer, once articulated on the importance of a lawyer
as a business counselor in this wise: "Even today, there are still
uninformed laymen whose concept of an attorney is one who principally
tries cases before the courts. The members of the bench and bar and
the informed laymen such as businessmen, know that in most developed
societies today, substantially more legal work is transacted in law offices
than in the courtrooms. General practitioners of law who do both litigation
and non-litigation work also know that in most cases they find themselves
spending more time doing what [is] loosely desccribe[d] as business
counseling than in trying cases. The business lawyer has been described
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as the planner, the diagnostician and the trial lawyer, the surgeon. I[t]
need not [be] stress[ed] that in law, as in medicine, surgery should be
avoided where internal medicine can be effective." (Business Star,
"Corporate Finance Law," Jan. 11, 1989, p. 4).
In the course of a working day the average general practitioner will
engage in a number of legal tasks, each involving different legal
doctrines, legal skills, legal processes, legal institutions, clients, and
other interested parties. Even the increasing numbers of lawyers in
specialized practice will usually perform at least some legal services
outside their specialty. And even within a narrow specialty such as tax
practice, a lawyer will shift from one legal task or role such as advice-
giving to an importantly different one such as representing a client before
an administrative agency. (Wolfram, supra, p. 687).
By no means will most of this work involve litigation, unless the lawyer is
one of the relatively rare types a litigator who specializes in this work to
the exclusion of much else. Instead, the work will require the lawyer to
have mastered the full range of traditional lawyer skills of client
counselling, advice-giving, document drafting, and negotiation. And
increasingly lawyers find that the new skills of evaluation and mediation
are both effective for many clients and a source of employment. (Ibid.).
Most lawyers will engage in non-litigation legal work or in litigation work
that is constrained in very important ways, at least theoretically, so as to
remove from it some of the salient features of adversarial litigation. Of
these special roles, the most prominent is that of prosecutor. In some
lawyers' work the constraints are imposed both by the nature of the client
and by the way in which the lawyer is organized into a social unit to
perform that work. The most common of these roles are those of
corporate practice and government legal service. (Ibid.).
In several issues of the Business Star, a business daily, herein below
quoted are emerging trends in corporate law practice, a departure from
the traditional concept of practice of law.
We are experiencing today what truly may be called a revolutionary
transformation in corporate law practice. Lawyers and other professional
groups, in particular those members participating in various legal-policy
decisional contexts, are finding that understanding the major emerging
trends in corporation law is indispensable to intelligent decision-making.
Constructive adjustment to major corporate problems of today requires
an accurate understanding of the nature and implications of the
corporate law research function accompanied by an accelerating rate of
information accumulation. The recognition of the need for such improved
corporate legal policy formulation, particularly "model-making" and
"contingency planning," has impressed upon us the inadequacy of
traditional procedures in many decisional contexts.
In a complex legal problem the mass of information to be processed, the
sorting and weighing of significant conditional factors, the appraisal of
major trends, the necessity of estimating the consequences of given
courses of action, and the need for fast decision and response in
situations of acute danger have prompted the use of sophisticated
concepts of information flow theory, operational analysis, automatic data
processing, and electronic computing equipment. Understandably, an
improved decisional structure must stress the predictive component of
the policy-making process, wherein a "model", of the decisional context
or a segment thereof is developed to test projected alternative courses
of action in terms of futuristic effects flowing therefrom.
Although members of the legal profession are regularly engaged in
predicting and projecting the trends of the law, the subject of corporate
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finance law has received relatively little organized and formalized
attention in the philosophy of advancing corporate legal education.
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LEGAL ETHICS
Nonetheless, a cross-disciplinary approach to legal research has
become a vital necessity.
Certainly, the general orientation for productive contributions by those
trained primarily in the law can be improved through an early introduction
to multi-variable decisional context and the various approaches for
handling such problems. Lawyers, particularly with either a master's or
doctorate degree in business administration or management, functioning
at the legal policy level of decision-making now have some appreciation
for the concepts and analytical techniques of other professions which are
currently engaged in similar types of complex decision-making.
Truth to tell, many situations involving corporate finance problems would
require the services of an astute attorney because of the complex legal
implications that arise from each and every necessary step in securing
and maintaining the business issue raised. (Business Star, "Corporate
Finance Law," Jan. 11, 1989, p. 4).
In our litigation-prone country, a corporate lawyer is assiduously referred
to as the "abogado de campanilla." He is the "big-time" lawyer, earning
big money and with a clientele composed of the tycoons and magnates
of business and industry.
Despite the growing number of corporate lawyers, many people could
not explain what it is that a corporate lawyer does. For one, the number
of attorneys employed by a single corporation will vary with the size and
type of the corporation. Many smaller and some large corporations farm
out all their legal problems to private law firms. Many others have in-
house counsel only for certain matters. Other corporation have a staff
large enough to handle most legal problems in-house.
A corporate lawyer, for all intents and purposes, is a lawyer who handles
the legal affairs of a corporation. His areas of concern or jurisdiction may
include, inter alia: corporate legal research, tax laws research, acting out
as corporate secretary (in board meetings), appearances in both courts
and other adjudicatory agencies (including the Securities and Exchange
Commission), and in other capacities which require an ability to deal with
the law.
At any rate, a corporate lawyer may assume responsibilities other than
the legal affairs of the business of the corporation he is representing.
These include such matters as determining policy and becoming
involved in management. ( Emphasis supplied.)
In a big company, for example, one may have a feeling of being isolated
from the action, or not understanding how one's work actually fits into the
work of the orgarnization. This can be frustrating to someone who needs
to see the results of his work first hand. In short, a corporate lawyer is
sometimes offered this fortune to be more closely involved in the running
of the business.
Moreover, a corporate lawyer's services may sometimes be engaged by
a multinational corporation (MNC). Some large MNCs provide one of the
few opportunities available to corporate lawyers to enter the international
law field. After all, international law is practiced in a relatively small
number of companies and law firms. Because working in a foreign
country is perceived by many as glamorous, tills is an area coveted by
corporate lawyers. In most cases, however, the overseas jobs go to
experienced attorneys while the younger attorneys do their "international
practice" in law libraries. (Business Star, "Corporate Law Practice," May
25,1990, p. 4).
This brings us to the inevitable, i.e., the role of the lawyer in the realm of
finance. To borrow the lines of Harvard-educated lawyer Bruce
Wassertein, to wit: "A bad lawyer is one who fails to spot problems, a
good lawyer is one who perceives the difficulties, and the excellent
PINEDAPCGRNMAN
lawyer is one who surmounts them." (Business Star, "Corporate Finance
Law," Jan. 11, 1989, p. 4).
Today, the study of corporate law practice direly needs a "shot in the
arm," so to speak. No longer are we talking of the traditional law teaching
method of confining the subject study to the Corporation Code and the
Securities Code but an incursion as well into the intertwining modern
management issues.
Such corporate legal management issues deal primarily with three (3)
types of learning: (1) acquisition of insights into current advances which
are of particular significance to the corporate counsel; (2) an introduction
to usable disciplinary skins applicable to a corporate counsel's
management responsibilities; and (3) a devotion to the organization and
management of the legal function itself.
These three subject areas may be thought of as intersecting circles, with
a shared area linking them. Otherwise known as "intersecting managerial
jurisprudence," it forms a unifying theme for the corporate counsel's total
learning.
Some current advances in behavior and policy sciences affect the
counsel's role. For that matter, the corporate lawyer reviews the
globalization process, including the resulting strategic repositioning that
the firms he provides counsel for are required to make, and the need to
think about a corporation's; strategy at multiple levels. The salience of
the nation-state is being reduced as firms deal both with global
multinational entities and simultaneously with sub-national governmental
units. Firms increasingly collaborate not only with public entities but with
each other often with those who are competitors in other arenas.
Also, the nature of the lawyer's participation in decision-making within
the corporation is rapidly changing. The modem corporate lawyer has
gained a new role as a stakeholder in some cases participating in the
organization and operations of governance through participation on
boards and other decision-making roles. Often these new patterns
develop alongside existing legal institutions and laws are perceived as
barriers. These trends are complicated as corporations organize for
global operations. ( Emphasis supplied)
The practising lawyer of today is familiar as well with governmental
policies toward the promotion and management of technology. New
collaborative arrangements for promoting specific technologies or
competitiveness more generally require approaches from industry that
differ from older, more adversarial relationships and traditional forms of
seeking to influence governmental policies. And there are lessons to be
learned from other countries. In Europe, Esprit, Eureka and Race are
examples of collaborative efforts between governmental and business
Japan's MITI is world famous. (Emphasis supplied)
Following the concept of boundary spanning, the office of the Corporate
Counsel comprises a distinct group within the managerial structure of all
kinds of organizations. Effectiveness of both long-term and temporary
groups within organizations has been found to be related to indentifiable
factors in the group-context interaction such as the groups actively
revising their knowledge of the environment coordinating work with
outsiders, promoting team achievements within the organization. In
general, such external activities are better predictors of team
performance than internal group processes.
In a crisis situation, the legal managerial capabilities of the corporate
lawyer vis-a-vis the managerial mettle of corporations are challenged.
Current research is seeking ways both to anticipate effective managerial
procedures and to understand relationships of financial liability and
Page 6
insurance considerations. (Emphasis supplied)
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Regarding the skills to apply by the corporate counsel, three factors are
apropos:
First System Dynamics. The field of systems dynamics has been found
an effective tool for new managerial thinking regarding both planning and
pressing immediate problems. An understanding of the role of feedback
loops, inventory levels, and rates of flow, enable users to simulate all
sorts of systematic problems physical, economic, managerial, social,
and psychological. New programming techniques now make the system
dynamics principles more accessible to managers including corporate
counsels. (Emphasis supplied)
Second Decision Analysis. This enables users to make better decisions
involving complexity and uncertainty. In the context of a law department,
it can be used to appraise the settlement value of litigation, aid in
negotiation settlement, and minimize the cost and risk involved in
managing a portfolio of cases. (Emphasis supplied)
Third Modeling for Negotiation Management. Computer-based models
can be used directly by parties and mediators in all lands of negotiations.
All integrated set of such tools provide coherent and effective negotiation
support, including hands-on on instruction in these techniques. A
simulation case of an international joint venture may be used to illustrate
the point.
[Be this as it may,] the organization and management of the legal
function, concern three pointed areas of consideration, thus:
Preventive Lawyering. Planning by lawyers requires special skills that
comprise a major part of the general counsel's responsibilities. They
differ from those of remedial law. Preventive lawyering is concerned with
minimizing the risks of legal trouble and maximizing legal rights for such
legal entities at that time when transactional or similar facts are being
considered and made.
Managerial Jurisprudence. This is the framework within which are
undertaken those activities of the firm to which legal consequences
attach. It needs to be directly supportive of this nation's evolving
economic and organizational fabric as firms change to stay competitive
in a global, interdependent environment. The practice and theory of "law"
is not adequate today to facilitate the relationships needed in trying to
make a global economy work.
Organization and Functioning of the Corporate Counsel's Office. The
general counsel has emerged in the last decade as one of the most
vibrant subsets of the legal profession. The corporate counsel hear
responsibility for key aspects of the firm's strategic issues, including
structuring its global operations, managing improved relationships with
an increasingly diversified body of employees, managing expanded
liability exposure, creating new and varied interactions with public
decision-makers, coping internally with more complex make or by
decisions.
This whole exercise drives home the thesis that knowing corporate law
is not enough to make one a good general corporate counsel nor to give
him a full sense of how the legal system shapes corporate activities. And
even if the corporate lawyer's aim is not the understanding of all of the
law's effects on corporate activities, he must, at the very least, also gain
a working knowledge of the management issues if only to be able to
grasp not only the basic legal "constitution' or makeup of the modem
corporation. "Business Star", "The Corporate Counsel," April 10, 1991,
p. 4).
The challenge for lawyers (both of the bar and the bench) is to have more
than a passing knowledge of financial law affecting each aspect of their
work. Yet, many would admit to ignorance of vast tracts of the financial
PINEDAPCGRNMAN
law territory. What transpires next is a dilemma of professional security:
Will the lawyer admit ignorance and risk opprobrium?; or will he feign
understanding and risk exposure? (Business Star, "Corporate Finance
law," Jan. 11, 1989, p. 4).
Respondent Christian Monsod was nominated by President Corazon C.
Aquino to the position of Chairman of the COMELEC in a letter received
by the Secretariat of the Commission on Appointments on April 25, 1991.
Petitioner opposed the nomination because allegedly Monsod does not
possess the required qualification of having been engaged in the practice
of law for at least ten years.
On June 5, 1991, the Commission on Appointments confirmed the
nomination of Monsod as Chairman of the COMELEC. On June 18,
1991, he took his oath of office. On the same day, he assumed office as
Chairman of the COMELEC.
Challenging the validity of the confirmation by the Commission on
Appointments of Monsod's nomination, petitioner as a citizen and
taxpayer, filed the instant petition for certiorari and Prohibition praying
that said confirmation and the consequent appointment of Monsod as
Chairman of the Commission on Elections be declared null and void.
Atty. Christian Monsod is a member of the Philippine Bar, having passed
the bar examinations of 1960 with a grade of 86-55%. He has been a
dues paying member of the Integrated Bar of the Philippines since its
inception in 1972-73. He has also been paying his professional license
fees as lawyer for more than ten years. (p. 124, Rollo)
After graduating from the College of Law (U.P.) and having hurdled the
bar, Atty. Monsod worked in the law office of his father. During his stint
in the World Bank Group (1963-1970), Monsod worked as an operations
officer for about two years in Costa Rica and Panama, which involved
getting acquainted with the laws of member-countries negotiating loans
and coordinating legal, economic, and project work of the Bank. Upon
returning to the Philippines in 1970, he worked with the Meralco Group,
served as chief executive officer of an investment bank and
subsequently of a business conglomerate, and since 1986, has rendered
services to various companies as a legal and economic consultant or
chief executive officer. As former Secretary-General (1986) and National
Chairman (1987) of NAMFREL. Monsod's work involved being
knowledgeable in election law. He appeared for NAMFREL in its
accreditation hearings before the Comelec. In the field of advocacy,
Monsod, in his personal capacity and as former Co-Chairman of the
Bishops Businessmen's Conference for Human Development, has
worked with the under privileged sectors, such as the farmer and urban
poor groups, in initiating, lobbying for and engaging in affirmative action
for the agrarian reform law and lately the urban land reform bill. Monsod
also made use of his legal knowledge as a member of the Davide
Commission, a quast judicial body, which conducted numerous hearings
(1990) and as a member of the Constitutional Commission (1986-1987),
and Chairman of its Committee on Accountability of Public Officers, for
which he was cited by the President of the Commission, Justice Cecilia
Muoz-Palma for "innumerable amendments to reconcile government
functions with individual freedoms and public accountability and the
party-list system for the House of Representative. (pp. 128-129 Rollo) (
Emphasis supplied)
Just a word about the work of a negotiating team of which Atty. Monsod
used to be a member.
In a loan agreement, for instance, a negotiating panel acts as a team,
and which is adequately constituted to meet the various contingencies
Page 7
that arise during a negotiation. Besides top officials of the Borrower
concerned, there are the legal officer (such as the legal counsel), the
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
finance manager, and an operations officer (such as an official involved
in negotiating the contracts) who comprise the members of the team.
(Guillermo V. Soliven, "Loan Negotiating Strategies for Developing
Country Borrowers," Staff Paper No. 2, Central Bank of the Philippines,
Manila, 1982, p. 11). (Emphasis supplied)
After a fashion, the loan agreement is like a country's Constitution; it lays
down the law as far as the loan transaction is concerned. Thus, the meat
of any Loan Agreement can be compartmentalized into five (5)
fundamental parts: (1) business terms; (2) borrower's representation; (3)
conditions of closing; (4) covenants; and (5) events of default. (Ibid., p.
13).
In the same vein, lawyers play an important role in any debt restructuring
program. For aside from performing the tasks of legislative drafting and
legal advising, they score national development policies as key factors
in maintaining their countries' sovereignty. (Condensed from the work
paper, entitled "Wanted: Development Lawyers for Developing Nations,"
submitted by L. Michael Hager, regional legal adviser of the United
States Agency for International Development, during the Session on Law
for the Development of Nations at the Abidjan World Conference in Ivory
Coast, sponsored by the World Peace Through Law Center on August
26-31, 1973). ( Emphasis supplied)
Loan concessions and compromises, perhaps even more so than purely
renegotiation policies, demand expertise in the law of contracts, in
legislation and agreement drafting and in renegotiation. Necessarily, a
sovereign lawyer may work with an international business specialist or
an economist in the formulation of a model loan agreement. Debt
restructuring contract agreements contain such a mixture of technical
language that they should be carefully drafted and signed only with the
advise of competent counsel in conjunction with the guidance of
adequate technical support personnel. (See International Law Aspects
of the Philippine External Debts, an unpublished dissertation, U.S.T.
Graduate School of Law, 1987, p. 321). ( Emphasis supplied)
A critical aspect of sovereign debt restructuring/contract construction is
the set of terms and conditions which determines the contractual
remedies for a failure to perform one or more elements of the contract.
A good agreement must not only define the responsibilities of both
parties, but must also state the recourse open to either party when the
other fails to discharge an obligation. For a complete debt restructuring
represents a devotion to that principle which in the ultimate analysis is
sine qua non for foreign loan agreements-an adherence to the rule of law
in domestic and international affairs of whose kind U.S. Supreme Court
Justice Oliver Wendell Holmes, Jr. once said: "They carry no banners,
they beat no drums; but where they are, men learn that bustle and bush
are not the equal of quiet genius and serene mastery." (See Ricardo J.
Romulo, "The Role of Lawyers in Foreign Investments," Integrated Bar
of the Philippine Journal, Vol. 15, Nos. 3 and 4, Third and Fourth
Quarters, 1977, p. 265).
Interpreted in the light of the various definitions of the term Practice of
law". particularly the modern concept of law practice, and taking into
consideration the liberal construction intended by the framers of the
Constitution, Atty. Monsod's past work experiences as a lawyer-
economist, a lawyer-manager, a lawyer-entrepreneur of industry, a
lawyer-negotiator of contracts, and a lawyer-legislator of both the rich
and the poor verily more than satisfy the constitutional requirement that
he has been engaged in the practice of law for at least ten years.
Besides in the leading case of Luego v. Civil Service Commission, 143
SCRA 327, the Court said:
PINEDAPCGRNMAN
Appointment is an essentially discretionary power and must be
performed by the officer in which it is vested according to his best lights,
the only condition being that the appointee should possess the
qualifications required by law. If he does, then the appointment cannot
be faulted on the ground that there are others better qualified who should
have been preferred. This is a political question involving considerations
of wisdom which only the appointing authority can decide. (emphasis
supplied)
No less emphatic was the Court in the case of (Central Bank v. Civil
Service Commission, 171 SCRA 744) where it stated:
It is well-settled that when the appointee is qualified, as in this case, and
all the other legal requirements are satisfied, the Commission has no
alternative but to attest to the appointment in accordance with the Civil
Service Law. The Commission has no authority to revoke an
appointment on the ground that another person is more qualified for a
particular position. It also has no authority to direct the appointment of a
substitute of its choice. To do so would be an encroachment on the
discretion vested upon the appointing authority. An appointment is
essentially within the discretionary power of whomsoever it is vested,
subject to the only condition that the appointee should possess the
qualifications required by law. ( Emphasis supplied)
The appointing process in a regular appointment as in the case at bar,
consists of four (4) stages: (1) nomination; (2) confirmation by the
Commission on Appointments; (3) issuance of a commission (in the
Philippines, upon submission by the Commission on Appointments of its
certificate of confirmation, the President issues the permanent
appointment; and (4) acceptance e.g., oath-taking, posting of bond, etc.
. . . (Lacson v. Romero, No. L-3081, October 14, 1949; Gonzales, Law
on Public Officers, p. 200)
The power of the Commission on Appointments to give its consent to the
nomination of Monsod as Chairman of the Commission on Elections is
mandated by Section 1(2) Sub-Article C, Article IX of the Constitution
which provides:
The Chairman and the Commisioners shall be appointed by the
President with the consent of the Commission on Appointments for a
term of seven years without reappointment. Of those first appointed,
three Members shall hold office for seven years, two Members for five
years, and the last Members for three years, without reappointment.
Appointment to any vacancy shall be only for the unexpired term of the
predecessor. In no case shall any Member be appointed or designated
in a temporary or acting capacity.
Anent Justice Teodoro Padilla's separate opinion, suffice it to say that
his definition of the practice of law is the traditional or stereotyped notion
of law practice, as distinguished from the modern concept of the practice
of law, which modern connotation is exactly what was intended by the
eminent framers of the 1987 Constitution. Moreover, Justice Padilla's
definition would require generally a habitual law practice, perhaps
practised two or three times a week and would outlaw say, law practice
once or twice a year for ten consecutive years. Clearly, this is far from
the constitutional intent.
Upon the other hand, the separate opinion of Justice Isagani Cruz states
that in my written opinion, I made use of a definition of law practice which
really means nothing because the definition says that law practice " . . .
is what people ordinarily mean by the practice of law." True I cited the
definition but only by way of sarcasm as evident from my statement that
the definition of law practice by "traditional areas of law practice is
Page 8
essentially tautologous" or defining a phrase by means of the phrase
itself that is being defined.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Justice Cruz goes on to say in substance that since the law covers
almost all situations, most individuals, in making use of the law, or in
advising others on what the law means, are actually practicing law. In
that sense, perhaps, but we should not lose sight of the fact that Mr.
Monsod is a lawyer, a member of the Philippine Bar, who has been
practicing law for over ten years. This is different from the acts of persons
practicing law, without first becoming lawyers.
Justice Cruz also says that the Supreme Court can even disqualify an
elected President of the Philippines, say, on the ground that he lacks one
or more qualifications. This matter, I greatly doubt. For one thing, how
can an action or petition be brought against the President? And even
assuming that he is indeed disqualified, how can the action be
entertained since he is the incumbent President?
We now proceed:
The Commission on the basis of evidence submitted doling the public
hearings on Monsod's confirmation, implicitly determined that he
possessed the necessary qualifications as required by law. The
judgment rendered by the Commission in the exercise of such an
acknowledged power is beyond judicial interference except only upon a
clear showing of a grave abuse of discretion amounting to lack or excess
of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such
grave abuse of discretion is clearly shown shall the Court interfere with
the Commission's judgment. In the instant case, there is no occasion for
the exercise of the Court's corrective power, since no abuse, much less
a grave abuse of discretion, that would amount to lack or excess of
jurisdiction and would warrant the issuance of the writs prayed, for has
been clearly shown.
Additionally, consider the following:
(1) If the Commission on Appointments rejects a nominee by the
President, may the Supreme Court reverse the Commission, and thus in
effect confirm the appointment? Clearly, the answer is in the negative.
(2) In the same vein, may the Court reject the nominee, whom the
Commission has confirmed? The answer is likewise clear.
(3) If the United States Senate (which is the confirming body in the U.S.
Congress) decides to confirm a Presidential nominee, it would be
incredible that the U.S. Supreme Court would still reverse the U.S.
Senate.
Finally, one significant legal maxim is:
We must interpret not by the letter that killeth, but by the spirit that giveth
life.
Take this hypothetical case of Samson and Delilah. Once, the procurator
of Judea asked Delilah (who was Samson's beloved) for help in capturing
Samson. Delilah agreed on condition that
No blade shall touch his skin;
No blood shall flow from his veins.
When Samson (his long hair cut by Delilah) was captured, the procurator
placed an iron rod burning white-hot two or three inches away from in
front of Samson's eyes. This blinded the man. Upon hearing of what had
happened to her beloved, Delilah was beside herself with anger, and
fuming with righteous fury, accused the procurator of reneging on his
word. The procurator calmly replied: "Did any blade touch his skin? Did
any blood flow from his veins?" The procurator was clearly relying on the
letter, not the spirit of the agreement.
In view of the foregoing, this petition is hereby DISMISSED.
A.C. No. 6705 March 31, 2006
PINEDAPCGRNMAN
RUTHIE LIM-SANTIAGO, Complainant,
vs.
ATTY. CARLOS B. SAGUCIO, Respondent.
DECISION
CARPIO, J.:
The Case
This is a disbarment complaint against Atty. Carlos B. Sagucio for
violating Rule 15.03 of the Code of Professional Responsibility and for
defying the prohibition against private practice of law while working as
government prosecutor.
The Facts
Ruthie Lim-Santiago ("complainant") is the daughter of Alfonso Lim and
Special Administratrix of his estate. 1Alfonso Lim is a stockholder and the
former President of Taggat Industries, Inc. 2
Atty. Carlos B. Sagucio ("respondent") was the former Personnel
Manager and Retained Counsel of Taggat Industries, Inc. 3 until his
appointment as Assistant Provincial Prosecutor of Tuguegarao,
Cagayan in 1992. 4
Taggat Industries, Inc. ("Taggat") is a domestic corporation engaged in
the operation of timber concessions from the government. The
Presidential Commission on Good Government sequestered it sometime
in 1986, 5 and its operations ceased in 1997. 6
Sometime in July 1997, 21 employees of Taggat ("Taggat employees")
filed a criminal complaint entitled "Jesus Tagorda, Jr. et al. v. Ruthie Lim-
Santiago," docketed as I.S. No. 97-240 ("criminal complaint"). 7 Taggat
employees alleged that complainant, who took over the management
and control of Taggat after the death of her father, withheld payment of
their salaries and wages without valid cause from 1 April 1996 to 15 July
1997. 8
Respondent, as Assistant Provincial Prosecutor, was assigned to
conduct the preliminary investigation. 9 He resolved the criminal
complaint by recommending the filing of 651 Informations 10 for violation
of Article 288 11 in relation to Article 116 12 of the Labor Code of the
Philippines. 13
Complainant now charges respondent with the following violations:
1. Rule 15.03 of the Code of Professional Responsibility
Complainant contends that respondent is guilty of representing
conflicting interests. Respondent, being the former Personnel Manager
and Retained Counsel of Taggat, knew the operations of Taggat very
well. Respondent should have inhibited himself from hearing,
investigating and deciding the case filed by Taggat
employees. 14Furthermore, complainant claims that respondent
instigated the filing of the cases and even harassed and threatened
Taggat employees to accede and sign an affidavit to support the
complaint. 15
2. Engaging in the private practice of law while working as a government
prosecutor
Complainant also contends that respondent is guilty of engaging in the
private practice of law while working as a government prosecutor.
Complainant presented evidence to prove that respondent
received P10,000 as retainers fee for the months of January and
February 1995, 16 another P10,000 for the months of April and May
1995, 17 and P5,000 for the month of April 1996. 18
Complainant seeks the disbarment of respondent for violating Rule 15.03
of the Code of Professional Responsibility and for defying the prohibition
against private practice of law while working as government prosecutor.
Page 9
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Respondent refutes complainants allegations and counters that
complainant was merely aggrieved by the resolution of the criminal
complaint which was adverse and contrary to her expectation. 19
Respondent claims that when the criminal complaint was filed,
respondent had resigned from Taggat for more than five
years. 20 Respondent asserts that he no longer owed his undivided
loyalty to Taggat. 21 Respondent argues that it was his sworn duty to
conduct the necessary preliminary investigation. 22 Respondent
contends that complainant failed to establish lack of impartiality when he
performed his duty. 23 Respondent points out that complainant did not
file a motion to inhibit respondent from hearing the criminal
complaint 24 but instead complainant voluntarily executed and filed her
counter-affidavit without mental reservation. 25
Respondent states that complainants reason in not filing a motion to
inhibit was her impression that respondent would exonerate her from the
charges filed as gleaned from complainants statement during the
hearing conducted on 12 February 1999:
xxx
Q. (Atty. Dabu). What do you mean you didnt think he would do it,
Madam Witness?
A. Because he is supposed to be my fathers friend and he was working
with my Dad and he was supposed to be trusted by my father. And he
came to me and told me he gonna help me. x x x. 26
Respondent also asserts that no conflicting interests exist because he
was not representing Taggat employees or complainant. Respondent
claims he was merely performing his official duty as Assistant Provincial
Prosecutor. 27Respondent argues that complainant failed to establish
that respondents act was tainted with personal interest, malice and bad
faith. 28
Respondent denies complainants allegations that he instigated the filing
of the cases, threatened and harassed Taggat employees. Respondent
claims that this accusation is bereft of proof because complainant failed
to mention the names of the employees or present them for cross-
examination. 29
Respondent does not dispute his receipt, after his appointment as
government prosecutor, of retainer fees from complainant but claims that
it
was only on a case-to-case basis and it ceased in 1996. 30 Respondent
contends that the fees were paid for his consultancy services and not for
representation. Respondent submits that consultation is not the same as
representation and that rendering consultancy services is not
prohibited. 31 Respondent, in his Reply-Memorandum, states:
x x x [I]f ever Taggat paid him certain amounts, these were paid
voluntarily by Taggat without the respondents asking, intended as token
consultancy fees on a case-to-case basis and not as or for retainer fees.
These payments do not at all show or translate as a specie of conflict of
interest. Moreover, these consultations had no relation to, or connection
with, the above-mentioned labor complaints filed by former Taggat
employees. 32
Respondent insists that complainants evidence failed to prove that when
the criminal complaint was filed with the Office of the Provincial
Prosecutor of Cagayan, respondent was still the retained counsel or
legal consultant. 33
While this disbarment case was pending, the Resolution and Order
issued by respondent to file 651 Informations against complainant was
reversed and set aside by Regional State Prosecutor of Cagayan
Rodolfo B. Cadelina last 4 January 1999. 34 Hence, the criminal
complaint was dismissed. 35
PINEDAPCGRNMAN
The IBPs Report and Recommendation
The Integrated Bar of the Philippines Investigating Commissioner Ma.
Carmina M. Alejandro-Abbas ("IBP Commissioner Abbas") heard the
case 36 and allowed the parties to submit their respective
memoranda. 37 Due to IBP Commissioner Abbas resignation, the case
was reassigned to Commissioner Dennis A.B. Funa ("IBP Commissioner
Funa"). 38
After the parties filed their memoranda and motion to resolve the case,
the IBP Board of Governors issued Resolution No. XVI-2004-479 ("IBP
Resolution") dated 4 November 2004 adopting with modification 39 IBP
Commissioner Funas Report and Recommendation ("Report") finding
respondent guilty of conflict of interests, failure to safeguard a former
clients interest, and violating the prohibition against the private practice
of law while being a government prosecutor. The IBP Board of Governors
recommended the imposition of a penalty of three years suspension from
the practice of law. The Report reads:
Now the issue here is whether being a former lawyer of Taggat conflicts
with his role as Assistant Provincial Prosecutor in deciding I.S. No. 97-
240. A determination of this issue will require the test of whether the
matter in I.S. No. 97-240 will conflict with his former position of Personnel
Manager and Legal Counsel of Taggat.
I.S. No. 97-240 was filed for "Violation of Labor Code" (see Resolution
of the Provincial Prosecutors Office, Annex "B" of Complaint). Herein
Complainant, Ruthie Lim-Santiago, was being accused as having
the "management and control" of Taggat (p. 2, Resolution of the Prov.
Pros. Office, supra).
Clearly, as a former Personnel Manager and Legal Counsel of Taggat,
herein Respondent undoubtedly handled the personnel and labor
concerns of Taggat. Respondent, undoubtedly dealt with and related
with the employees of Taggat. Therefore, Respondent
undoubtedly dealt with and related with complainants in I.S. No. 97-240.
The issues, therefore, in I.S. No. 97-240, are very much familiar with
Respondent. While the issues of unpaid salaries pertain to the periods
1996-1997, the mechanics and personalities in that case are very much
familiar with Respondent.
A lawyer owes something to a former client. Herein Respondent owes to
Taggat, a former client, the duty to "maintain inviolate the clients
confidence or to refrain from doing anything which will injuriously affect
him in any matter in which he previously represented him" (Natam v.
Capule, 91 Phil. 640; p. 231, Agpalo, Legal Ethics, 4th ed.)
Respondent argues that as Assistant Provincial Prosecutor, he does not
represent any client or any interest except justice. It should not be
forgotten, however, that a lawyer has an immutable duty to a former
client with respect to matters that he previously handled for that former
client. In this case, matters relating to personnel, labor policies, and labor
relations that he previously handled as Personnel Manager and Legal
Counsel of Taggat. I.S. No. 97-240 was for "Violation of the Labor
Code." Here lies the conflict. Perhaps it would have been different had
I.S. No. 97-240 not been labor-related, or if Respondent had not been a
Personnel Manager concurrently as Legal Counsel. But as it is, I.S. No.
97-240 is labor-related and Respondent was a former Personnel
Manager of Taggat.
xxxx
While Respondent ceased his relations with Taggat in 1992 and the
unpaid salaries being sought in I.S. No. 97-240 were of the years 1996
and 1997, the employees and management involved are the very
Page 10
personalities he dealt with as Personnel Manager and Legal Counsel of
Taggat. Respondent dealt with these persons in his fiduciary relations
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
with Taggat. Moreover, he was an employee of the corporation and part
of its management.
xxxx
As to the propriety of receiving "Retainer Fees" or "consultancy fees"
from herein Complainant while being an Assistant Provincial Prosecutor,
and for rendering legal consultancy work while being an Assistant
Provincial Prosecutor, this matter had long been settled. Government
prosecutors are prohibited to engage in the private practice of law (see
Legal and Judicial Ethics, Ernesto Pineda, 1994 ed., p. 20; People v.
Villanueva, 14 SCRA 109; Aquino v. Blanco 70 Phil. 647). The act of
being a legal consultant is a practice of law. To engage in the practice of
law is to do any of those acts that are characteristic of the legal
profession (In re: David, 93 Phil. 461). It covers any activity, in or out of
court, which required the application of law, legal principles, practice or
procedures and calls for legal knowledge, training and experience (PLA
v. Agrava, 105 Phil. 173; People v. Villanueva, 14 SCRA 111; Cayetano
v. Monsod, 201 SCRA 210).
Respondent clearly violated this prohibition.
As for the secondary accusations of harassing certain employees of
Taggat and instigating the filing of criminal complaints, we find the
evidence insufficient.
Accordingly, Respondent should be found guilty of conflict of interest,
failure to safeguard a former clients interest, and violating the prohibition
against the private practice of law while being a government
prosecutor. 40
The IBP Board of Governors forwarded the Report to the Court as
provided under Section 12(b), Rule 139-B 41 of the Rules of Court.
The Ruling of the Court
The Court exonerates respondent from the charge of violation of Rule
15.03 of the Code of Professional Responsibility ("Code"). However, the
Court finds respondent liable for violation of Rule 1.01, Canon 1 of the
Code of Professional Responsibility against unlawful
conduct. 42 Respondent committed unlawful conduct when he violated
Section 7(b)(2) of the Code of Conduct and Ethical Standards for Public
Officials and Employees or Republic Act No. 6713 ("RA 6713").
Canon 6 provides that the Code "shall apply to lawyers in government
service in the discharge of their official duties." 43 A government lawyer
is thus bound by the prohibition "not [to] represent conflicting
interests." 44However, this rule is subject to certain limitations. The
prohibition to represent conflicting interests does not apply when no
conflict of interest exists, when a written consent of all concerned is given
after a full disclosure of the facts or when no true attorney-client
relationship exists. 45 Moreover, considering the serious consequence of
the disbarment or suspension of a member of the Bar, clear
preponderant evidence is necessary to justify the imposition of the
administrative penalty. 46
Respondent is also mandated under Rule 1.01 of Canon 1 not to engage
in "unlawful x x x conduct." Unlawful conduct includes violation of the
statutory prohibition on a government employee to "engage in the private
practice of [his] profession unless authorized by the Constitution or law,
provided, that such practice will not conflict or tend to conflict with [his]
official functions." 47
Complainants evidence failed to substantiate the claim that respondent
represented conflicting interests
In Quiambao v. Bamba, 48 the Court enumerated various tests to
determine conflict of interests. One test of inconsistency of interests is
whether the lawyer will be asked to use against his former client any
confidential information acquired through their connection or previous
PINEDAPCGRNMAN
employment. 49 In essence, what a lawyer owes his former client is to
maintain inviolate the clients confidence or to refrain from doing anything
which will injuriously affect him in any matter in which he previously
represented him. 50
In the present case, we find no conflict of interests when respondent
handled the preliminary investigation of the criminal complaint filed by
Taggat employees in 1997. The issue in the criminal complaint pertains
to non-payment of wages that occurred from 1 April 1996 to 15 July 1997.
Clearly, respondent was no longer connected with Taggat during that
period since he resigned sometime in 1992.
In order to charge respondent for representing conflicting interests,
evidence must be presented to prove that respondent used against
Taggat, his former client, any confidential information acquired through
his previous employment. The only established participation respondent
had with respect to the criminal complaint is that he was the one who
conducted the preliminary investigation. On that basis alone, it does not
necessarily follow that respondent used any confidential information from
his previous employment with complainant or Taggat in resolving the
criminal complaint.
The fact alone that respondent was the former Personnel Manager and
Retained Counsel of Taggat and the case he resolved as government
prosecutor was labor-related is not a sufficient basis to charge
respondent for representing conflicting interests. A lawyers immutable
duty to a former client does not cover transactions that occurred beyond
the lawyers employment with the client. The intent of the law is to impose
upon the lawyer the duty to protect the clients interests only on matters
that he previously handled for the former client and not for matters that
arose after the lawyer-client relationship has terminated.
Further, complainant failed to present a single iota of evidence to prove
her allegations. Thus, respondent is not guilty of violating Rule 15.03 of
the Code.
Respondent engaged in the private practice of law while working as a
government prosecutor
The Court has defined the practice of law broadly as
x x x any activity, in or out of court, which requires the application of law,
legal procedure, knowledge, training and experience. "To engage in the
practice of law is to perform those acts which are characteristics of the
profession. Generally, to practice law is to give notice or render any kind
of service, which device or service requires the use in any degree of legal
knowledge or skill." 51
"Private practice of law" contemplates a succession of acts of the same
nature habitually or customarily holding ones self to the public as a
lawyer. 52
Respondent argues that he only rendered consultancy services to
Taggat intermittently and he was not a retained counsel of Taggat from
1995 to 1996 as alleged. This argument is without merit because the law
does not distinguish between consultancy services and retainer
agreement. For as long as respondent performed acts that are usually
rendered by lawyers with the use of their legal knowledge, the same falls
within the ambit of the term "practice of law."
Nonetheless, respondent admitted that he rendered his legal services to
complainant while working as a government prosecutor. Even the
receipts he signed stated that the payments by Taggat were for
"Retainers fee." 53 Thus, as correctly pointed out by complainant,
respondent clearly violated the prohibition in RA 6713.
However, violations of RA 6713 are not subject to disciplinary action
Page 11
under the Code of Professional Responsibility unless the violations also
constitute infractions of specific provisions of the Code of Professional
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Responsibility. Certainly, the IBP has no jurisdiction to investigate
violations of RA 6713 the Code of Conduct and Ethical Standards for
Public Officials and Employees unless the acts involved also
transgress provisions of the Code of Professional Responsibility.
Here, respondents violation of RA 6713 also constitutes a violation of
Rule 1.01 of Canon 1, which mandates that "[a] lawyer shall not engage
in unlawful, dishonest, immoral or deceitful conduct." Respondents
admission that he received from Taggat fees for legal services while
serving as a government prosecutor is an unlawful conduct, which
constitutes a violation of Rule 1.01.
Respondent admitted that complainant also charged him with unlawful
conduct when respondent stated in his Demurrer to Evidence:
In this instant case, the complainant prays that the respondent be
permanently and indefinitely suspended or disbarred from the practice of
the law profession and his name removed from the Roll of Attorneys on
the following grounds:
xxxx
d) that respondent manifested gross misconduct and gross violation of
his oath of office and in his dealings with the public. 54
On the Appropriate Penalty on Respondent
The appropriate penalty on an errant lawyer depends on the exercise of
sound judicial discretion based on the surrounding facts. 55
Under Civil Service Law and rules, the penalty for government
employees engaging in unauthorized private practice of profession is
suspension for six months and one day to one year. 56 We find this
penalty appropriate for respondents violation in this case of Rule 1.01,
Canon 1 of the Code of Professional Responsibility.
WHEREFORE, we find respondent Atty. Carlos B. Sagucio GUILTY of
violation of Rule 1.01, Canon 1 of the Code of Professional
Responsibility. Accordingly, we SUSPEND respondent Atty. Carlos B.
Sagucio from the practice of law for SIX MONTHS effective upon finality
of this Decision.
Let copies of this Decision be furnished the Office of the Bar Confidant
to be appended to 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.
G.R. No. L-19450 May 27, 1965
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SIMPLICIO VILLANUEVA, defendant-appellant.
Office of the Solicitor General for plaintiff-appellee.
Magno T. Buese for defendant-appellant.
PAREDES, J.:
On September 4, 1959, the Chief of Police of Alaminos, Laguna, charged
Simplicio Villanueva with the Crime of Malicious Mischief before the
Justice of the Peace Court of said municipality. Said accused was
represented by counsel de officio but later on replaced by counsel de
parte. The complainant in the same case was represented by City
Attorney Ariston Fule of San Pablo City, having entered his appearance
as private prosecutor, after securing the permission of the Secretary of
Justice. The condition of his appearance as such, was that every time he
would appear at the trial of the case, he would be considered on official
leave of absence, and that he would not receive any payment for his
services. The appearance of City Attorney Fule as private prosecutor
was questioned by the counsel for the accused, invoking the case of
Aquino, et al. vs. Blanco, et al.,
L-1532, Nov. 28, 1947, wherein it was ruled that "when an attorney had
PINEDAPCGRNMAN
been appointed to the position of Assistant Provincial Fiscal or City Fiscal
and therein qualified, by operation of law, he ceased to engage in private
law practice." Counsel then argued that the JP Court in entertaining the
appearance of City Attorney Fule in the case is a violation of the above
ruling. On December 17, 1960 the JP issued an order sustaining the
legality of the appearance of City Attorney Fule.
Under date of January 4, 1961, counsel for the accused presented a
"Motion to Inhibit Fiscal Fule from Acting as Private Prosecutor in this
Case," this time invoking Section 32, Rule 27, now Sec. 35, Rule 138,
Revised Rules of Court, which bars certain attorneys from practicing.
Counsel claims that City Attorney Fule falls under this limitation. The JP
Court ruled on the motion by upholding the right of Fule to appear and
further stating that he (Fule) was not actually enagaged in private law
practice. This Order was appealed to the CFI of Laguna, presided by the
Hon. Hilarion U. Jarencio, which rendered judgment on December 20,
1961, the pertinent portions of which read:
The present case is one for malicious mischief. There being no
reservation by the offended party of the civil liability, the civil action was
deemed impliedly instituted with the criminal action. The offended party
had, therefore, the right to intervene in the case and be represented by
a legal counsel because of her interest in the civil liability of the accused.
Sec. 31, Rule 127 of the Rules of Court provides that in the court of a
justice of the peace a party may conduct his litigation in person, with the
aid of an agent or friend appointed by him for that purpose, or with the
aid of an attorney. Assistant City Attorney Fule appeared in the Justice
of the Peace Court as an agent or friend of the offended party. It does
not appear that he was being paid for his services or that his appearance
was in a professional capacity. As Assistant City Attorney of San Pablo
he had no control or intervention whatsoever in the prosecution of crimes
committed in the municipality of Alaminos, Laguna, because the
prosecution of criminal cases coming from Alaminos are handled by the
Office of the Provincial Fiscal and not by the City Attorney of San Pablo.
There could be no possible conflict in the duties of Assistant City Attorney
Fule as Assistant City Attorney of San Pablo and as private prosecutor
in this criminal case. On the other hand, as already pointed out, the
offended party in this criminal case had a right to be represented by an
agent or a friend to protect her rights in the civil action which was
impliedly instituted together with the criminal action.
In view of the foregoing, this Court holds that Asst. City Attorney Ariston
D. Fule may appear before the Justice of the Peace Court of Alaminos,
Laguna as private prosecutor in this criminal case as an agent or a friend
of the offended party.
WHEREFORE, the appeal from the order of the Justice of the Peace
Court of Alaminos, Laguna, allowing the apprearance of Ariston D. Fule
as private prosecutor is dismissed, without costs.
The above decision is the subject of the instant proceeding.
The appeal should be dismissed, for patently being without merits.
Aside from the considerations advanced by the learned trial judge,
heretofore reproduced, and which we consider plausible, the fallacy of
the theory of defense counsel lies in his confused interpretation of
Section 32 of Rule 127 (now Sec. 35, Rule 138, Revised Rules), which
provides that "no judge or other official or employee of the superior courts
or of the office of the Solicitor General, shall engage in private practice
as a member of the bar or give professional advice to clients." He claims
that City Attorney Fule, in appearing as private prosecutor in the case
was engaging in private practice. We believe that the isolated
appearance of City Attorney Fule did not constitute private practice within
the meaning and contemplation of the Rules. Practice is more than an
isolated appearance, for it consists in frequent or customary actions, a
Page 12
succession of acts of the same kind. In other words, it is frequent habitual
exercise (State vs. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768).
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Practice of law to fall within the prohibition of statute has been interpreted
as customarily or habitually holding one's self out to the public, as
customarily and demanding payment for such services (State vs. Bryan,
4 S.E. 522, 98 N.C. 644, 647). The appearance as counsel on one
occasion is not conclusive as determinative of engagement in the private
practice of law. The following observation of the Solicitor General is
noteworthy:
Essentially, the word private practice of law implies that one must have
presented himself to be in the active and continued practice of the legal
profession and that his professional services are available to the public
for a compensation, as a source of his livelihood or in consideration of
his said services.
For one thing, it has never been refuted that City Attorney Fule had been
given permission by his immediate superior, the Secretary of Justice, to
represent the complainant in the case at bar, who is a relative.
CONFORMABLY WITH ALL THE FOREGOING, the decision appealed
from should be, as it is hereby affirmed, in all respects, with costs against
appellant.
C. Essential Criteria Of Engaging In The Practice Of Law
1. Habituality- implies customarily or habitually holding oneself
out to the public as a lawyer
2. Compensation- implies that one must have
presented himself to be in the active practice and that his
professional services are available to the public for
compensation, as a source of his livelihood or in
consideration of his said services.
3. Application of law, legal principle, practice, or procedure
which calls for legal knowledge, training and
experience.
4. Attorney-client relationship
III. REQUIREMENTS FOR ADMISSION TO THE PRACTICE OF LAW
A. Legal Education
B. Educational Qualification
a. Pre-Law: Rule 138 Sec 6 ROC: No applicant for
admission to the bar examination shall be
admitted unless he presents a certificate that he
has satisfied the Secretary of Education that,
before he began the study of law, he had pursued
and satisfactorily completed in an authorized and
recognized university or college, requiring for
admission thereto the completion of a four-year
high school course, the course of study prescribed
therein for a bachelor's degree in arts or sciences
with any of the following subjects as major or field
of concentration: political science, logic, english,
spanish, history and economics.
b. Law Proper: Rule 138 Sec 5 ROC: All applicants
for admission other than those referred to in the
two preceding section shall, before being admitted
to the examination, satisfactorily show that they
have regularly studied law for four years, and
successfully completed all prescribed courses, in
a law school or university, officially approved and
recognized by the Secretary of Education. The
affidavit of the candidate, accompanied by a
certificate from the university or school of law,
shall be filed as evidence of such facts, and further
evidence may be required by the court.
PINEDAPCGRNMAN
No applicant shall be admitted to the bar
examinations unless he has satisfactorily
completed the following courses in a law school or
university duly recognized by the government: civil
law, commercial law, remedial law, criminal law,
public and private international law, political law,
labor and social legislation, medical jurisprudence,
taxation and legal ethics.
C. Citizenship: Art XII Sec 14(2) Const: The practice of all
professions in the Philippines shall be limited to Filipino
citizens, save in cases prescribed by law.
D. Bar Examinations :
Rule 138 Sec 7-16 ROC
Section 7. Time for filing proof of qualifications. All
applicants for admission shall file with the clerk of the Supreme
Court the evidence required by section 2 of this rule at least fifteen
(15) days before the beginning of the examination. If not embraced
within section 3 and 4 of this rule they shall also file within the same
period the affidavit and certificate required by section 5, and if
embraced within sections 3 and 4 they shall exhibit a license
evidencing the fact of their admission to practice, satisfactory
evidence that the same has not been revoked, and certificates as
to their professional standing. Applicants shall also file at the same
time their own affidavits as to their age, residence, and citizenship.
Section 8. Notice of Applications. Notice of applications
for admission shall be published by the clerk of the Supreme Court
in newspapers published in Pilipino, English and Spanish, for at
least ten (10) days before the beginning of the examination.
Section 9. Examination; subjects. Applicants, not
otherwise provided for in sections 3 and 4 of this rule, shall be
subjected to examinations in the following subjects: Civil Law;
Labor and Social Legislation; Mercantile Law; Criminal Law;
Political Law (Constitutional Law, Public Corporations, and Public
Officers); International Law (Private and Public); Taxation;
Remedial Law (Civil Procedure, Criminal Procedure, and
Evidence); Legal Ethics and Practical Exercises (in Pleadings and
Conveyancing).
Section 10. Bar examination, by questions and answers,
and in writing. Persons taking the examination shall not bring
papers, books or notes into the examination rooms. The questions
shall be the same for all examinees and a copy thereof, in English
or Spanish, shall be given to each examinee. Examinees shall
answer the questions personally without help from anyone.
Upon verified application made by an examinee stating that his
penmanship is so poor that it will be difficult to read his answers
without much loss of time, the Supreme Court may allow such
examinee to use a typewriter in answering the questions. Only
noiseless typewriters shall be allowed to be used.
The committee of bar examiner shall take such precautions as are
necessary to prevent the substitution of papers or commission of
other frauds. Examinees shall not place their names on the
examination papers. No oral examination shall be given.
Section 11. Annual examination. Examinations for
admission to the bar of the Philippines shall take place annually in
the City of Manila. They shall be held in four days to be disignated
by the chairman of the committee on bar examiners. The subjects
shall be distributed as follows: First day: Political and International
Law (morning) and Labor and Social Legislation (afternoon);
Second day: Civil Law (morning) and Taxation (afternoon); Third
Page 13
day: Mercantile Law (morning) and Criminal Law (afternoon);
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Fourth day: Remedial Law (morning) and legal Ethics and Practical
Exercises (afternoon).
Section 12. Committee of examiners. Examinations shall
be conducted by a committee of bar examiners to be appointed by
the Supreme Court. This committee shall be composed of a Justice
of the Supreme Court, who shall act as chairman, and who shall be
designated by the court to serve for one year, and eight members
of the bar of the Philippines, who shall hold office for a period of
one year. The names of the members of this committee shall be
published in each volume of the official reports.
Section 13. Disciplinary measures. No candidate shall
endeavor to influence any member of the committee, and during
examination the candidates shall not communicate with each other
nor shall they give or receive any assistance. The candidate who
violates this provisions, or any other provision of this rule, shall be
barred from the examination, and the same to count as a failure
against him, and further disciplinary action, including permanent
disqualification, may be taken in the discretion of the court.
Section 14. Passing average. In order that a candidate
may be deemed to have passed his examinations successfully, he
must have obtained a general average of 75 per cent in all subjects,
without falling below 50 per cent in any subjects. In determining the
average, the subjects in the examination shall be given the
following relative weights: Civil Law, 15 per cent; Labor and Social
Legislation, 10 per cent; Mercantile Law, 15 per cent; Criminal Law;
10 per cent: Political and International Law, 15 per cent; Taxation,
10 per cent; Remedial Law, 20 per cent; Legal Ethics and Practical
Exercises, 5 per cent.
Section 15. Report of the committee; filing of examination
papers. Not later than February 15th after the examination, or
as soon thereafter as may be practicable, the committee shall file
its report on the result of such examination. The examination
papers and notes of the committee shall be filed with the clerk and
may there be examined by the parties in interest, after the court
has approved the report.
Section 16. Failing candidates to take review course.
Candidates who have failed the bar examinations for three times
shall be disqualified from taking another examination unless they
show the satisfaction of the court that they have enrolled in and
passed regular fourth year review classes as well as attended a
pre-bar review course in a recognized law school.
The professors of the individual review subjects attended by the
candidates under this rule shall certify under oath that the
candidates have regularly attended classes and passed the
subjects under the same conditions as ordinary students and the
ratings obtained by them in the particular subject.
Procedure for Admission:
Bar Examination Committee
Examinations shall be conducted by a committee of bar
examiners to be appointed by the Supreme Court. This
committee shall be composed of:
1. A Justice of the Supreme Court, as chairman and designated
by the court to serve for one year.
2. Eight (8) members of the Philippine bar, who shall serve
as examiners in the 8 bar subjects and hold office for a period
of one year.
3. Bar Confidant as liaison officer between the Court and
Chairman and the Committee members. Also a deputy clerk
of court.
Application and supporting documents
PINEDAPCGRNMAN
Time for filing proof of qualifications.All applicants for admission
shall file with the clerk of the Supreme Court a duly accomplished
application form together with supporting documents concerning
his qualifications at least 15 days before the beginning of the
examination.
Applicants shall also file at the same time their own affidavits as to
their age, residence, and citizenship. (Rule 138, Sec. 7)
Notice of applications.Notice of applications for admission shall
be published by the clerk of the Supreme Court in newspapers
published in Pilipino, English and Spanish, for at least 10 days
before the beginning of the examination. (Rule 138, sec. 8)
American lawyers in active practice of law in the Philippines
before July 4, 1946 or a Filipino citizen enrolled as attorney in
the United States before July 4, 1946, who desires admission
without examination should:
1. File a petition with the Court along with his
2. License to practice
3. Evidence that it has not been revoked
4. Certificates of professional standing.
Disclosure of involvement in any criminal case
Applicant must show that no charges against him involving moral
turpitude have been filed or pending in court in the Philippines (Rule
138, Sec 2, Rules of Court)
To enable the court to resolve whether a particular crime involves
moral turpitude, applicant must disclose any crime of which he has
been charged.
If what has been concealed does not involve moral turpitude, it is
the fact of concealment and not the commission of the crime itself
that makes him morally unfit.
Burden of proof to show qualifications
Applicant assumes the burden of proof to establish his
qualifications to the satisfaction of the court.
After having presented prima facie evidence of his qualifications,
any one objecting to his admission may offer contrary evidence to
overcome such prima facie showing. Burden of proof shifts to the
complainant.
Written examinations
Annual examination: Examinations for admission to the bar of the
Philippines shall take place annually in the City of Manila. They shall be
held in four days to be designated by the chairman of the committee on
bar examiners.
The subjects shall be distributed as follows:
1. First day: Political and International Law (morning) and Labor
and Social Legislation (afternoon);
2. Second day: Civil Law (morning) and Taxation (afternoon);
3. Third day: Mercantile Law (morning) and Criminal Law
(afternoon);
4. Fourth day: Remedial Law (morning) and legal Ethics and
Practical Exercises (afternoon).
The questions shall be the same for all examinees.
Examinees shall answer the questions personally without help from
anyone.
Upon verified application made by an examinee stating that his
penmanship is so poor that it will be difficult to read his answers
without much loss of time, the Supreme Court may allow such
examinee to use a noiseless typewriter.
Page 14
Restrictions to insure integrity in examination
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
1. An examinee is prohibited from bringing papers, books
or notes into the examination room.
2. He is not to communicate with the other examinees during the
exam.
3. He is not to influence any member of the committee on bar
exams.
4. To keep the examinees identity a secret and thus avoid
any influence to bear upon the examiner in the valuation of
his answers:
a. The exam papers shall be identified by
numbers.
b. The name of the examinee is written in a piece of
paper and sealed in an envelope.
5. Any candidate who violates any of the rules concerning the
conduct of examination will be barred from taking such and
the same will be counted as a failure against him.
The conduct of the bar exams involves public interest.
Any charge of anomaly requires prompt action from the Court to
prevent erosion of public faith in the bar and in the court.
Correction and revaluation of grades
The bar examiners correct the examination papers and submit the
grades and corrected papers to the bar confidant.
The bar confidant tallies the individual grades of every examinee,
computes the general average, and prepares a comparative
data showing the percentage of passing and failing in relation
to a certain average.
Results are submitted to the Examination Committee and
to the Court.
Any request for revaluation of the answers and the grades
given should be made by the examinee addressed to the Court.
Administration of Oath
Qualified applicants shall take and subscribe to the Oath of Office
as a Lawyer.
A prerequisite to the admission of practice of law and may
only be taken before the Supreme Court.
The court may deny the petition to take the lawyers oath for:
o Grave misconduct;
o Pending complaint against the applicant
LAWYERS OATH (MEMORIZE!!)
I , do solemnly swear that I will maintain allegiance to the
Republic of the Philippines; I will support and defend its Constitution and
obey the laws as well as the legal orders of the duly constituted
authorities therein; I will do no falsehood nor consent to its commission;
I will not wittingly or willingly promote or sue any groundless, false or
unlawful suit nor give aid nor consent to the same; I will not delay any
mans cause for money or malice and will conduct myself as a lawyer
according to the best of my knowledge and discretion with all good
fidelity as well to the court as to my clients; and I will impose upon
myself this obligation voluntarily, without any mental reservation or
purpose of evasion.
So help me God.
The lawyers oath is not a mere ceremony or formality for
practicing law. Every lawyer should at all times weigh his actions
according to the sworn promises he makes when taking the
lawyers oath. If all lawyers conducted themselves strictly
according to the lawyers oath and the Code of Professional
responsibility, the administration of justice will undoubtedly fairer,
PINEDAPCGRNMAN
faster and easier for everyone concerned. (In Re: Argosino, 270
SCRA 26)
By taking the lawyers oath, a lawyer becomes the guardian of truth
and the rule of law and an indispensable instrument in the fair and
impartial administration of justice. Good moral character includes
at least common honesty. Deception and other fraudulent acts are
not merely unacceptable practices that are disgraceful and
dishonorable, they reveal a basic moral flaw. (Olbes vs.
Deciembre, 457 SCRA 341)
Issuance of Certificate
After taking oath, the Supreme Court admits him as a member of
the bar for all courts of the Philippines.
An order be entered that a certificate of such record be given him
by the clerk of court.
Such certificate is his license to practice law.
Thereafter, he signs the roll of attorneys, which is the official record
containing the names and signatures of those who are authorized
to practice law.
Payment of IBP dues and privilege tax
Membership by every attorney in the IBP is compulsory.
Obligation to support it financially.
o Every member of the Integrated Bar shall pay such
annual dues as the Board of Governors shall
determine with the approval of the Supreme Court.
Default in payment for 6 months shall warrant
suspension.
o Default in such payment for 1 year shall be a
ground for removal of the name of the delinquent
member from the Roll of Attorneys.
o However, no action involving suspension or removal
from the roll shall be effective without final approval of
the Supreme Court.
Conditions sine qua non to the privilege to practice law and to the
retention of his name in the roll of attorneys :
1. Continued membership
2. Regularly paying membership dues and other lawful
assessments that it may levy.
A lawyer must comply with the requirement regarding
payment of membership even though his practice is limited.
The exemption from payment of individual income taxes for senior
citizens does not include payment of IBP membership dues.
DONNA MARIE S. AGUIRRE, Complainant, B. M. No. 1036 June 10,
2003
-versus-
EDWIN L. RANA,
Respondent.
DECISION
CARPIO, J.:
.
The Case
Before one is admitted to the Philippine Bar, he must possess the
requisite moral integrity for membership in the legal profession.
Possession of moral integrity is of greater importance than possession
of legal learning. The practice of law is a privilege bestowed only on the
morally fit. A bar candidate who is morally unfit cannot practice law even
Page 15
if he passes the bar examinations. chan robles virtual law library
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
The Facts
Respondent Edwin L. Rana ("respondent") was among those who
passed the 2000 Bar Examinations.
On 21 May 2001, one day before the scheduled mass oath-taking of
successful bar examinees as members of the Philippine Bar,
complainant Donna Marie Aguirre ("complainant") filed against
respondent a Petition for Denial of Admission to the Bar. Complainant
charged respondent with unauthorized practice of law, grave
misconduct, violation of law, and grave misrepresentation.
The Court allowed respondent to take his oath as a member of the Bar
during the scheduled oath-taking on 22 May 2001 at the Philippine
International Convention Center. However, the Court ruled that
respondent could not sign the Roll of Attorneys pending the resolution of
the charge against him. Thus, respondent took the lawyers oath on the
scheduled date but has not signed the Roll of Attorneys up to now.
Complainant charges respondent for unauthorized practice of law and
grave misconduct. Complainant alleges that respondent, while not yet a
lawyer, appeared as counsel for a candidate in the May 2001 elections
before the Municipal Board of Election Canvassers ("MBEC") of
Mandaon, Masbate. Complainant further alleges that respondent filed
with the MBEC a pleading dated 19 May 2001 entitled Formal Objection
to the Inclusion in the Canvassing of Votes in Some Precincts for the
Office of Vice-Mayor. In this pleading, respondent represented himself
as "counsel for and in behalf of Vice Mayoralty Candidate, George
Bunan," and signed the pleading as counsel for George Bunan
("Bunan").
On the charge of violation of law, complainant claims that respondent is
a municipal government employee, being a secretary of the
Sangguniang Bayan of Mandaon, Masbate. As such, respondent is not
allowed by law to act as counsel for a client in any court or administrative
body.
On the charge of grave misconduct and misrepresentation, complainant
accuses respondent of acting as counsel for vice mayoralty candidate
George Bunan ("Bunan") without the latter engaging respondents
services. Complainant claims that respondent filed the pleading as a
ploy to prevent the proclamation of the winning vice mayoralty candidate.
On 22 May 2001, the Court issued a resolution allowing respondent to
take the lawyers oath but disallowed him from signing the Roll of
Attorneys until he is cleared of the charges against him. In the same
resolution, the Court required respondent to comment on the complaint
against him.
In his Comment, respondent admits that Bunan sought his "specific
assistance" to represent him before the MBEC. Respondent claims that
"he decided to assist and advice Bunan, not as a lawyer but as a person
who knows the law." Respondent admits signing the 19 May 2001
pleading that objected to the inclusion of certain votes in the canvassing.
He explains, however, that he did not sign the pleading as a lawyer or
represented himself as an "attorney" in the pleading.
On his employment as secretary of the Sangguniang Bayan, respondent
claims that he submitted his resignation on 11 May 2001 which was
allegedly accepted on the same date. He submitted a copy of the
Certification of Receipt of Revocable Resignation dated 28 May 2001
signed by Vice-Mayor Napoleon Relox. Respondent further claims that
the complaint is politically motivated considering that complainant is the
daughter of Silvestre Aguirre, the losing candidate for mayor of
Mandaon, Masbate. Respondent prays that the complaint be dismissed
for lack of merit and that he be allowed to sign the Roll of Attorneys.
PINEDAPCGRNMAN
On 22 June 2001, complainant filed her Reply to respondents Comment
and refuted the claim of respondent that his appearance before the
MBEC was only to extend specific assistance to Bunan. Complainant
alleges that on 19 May 2001 Emily Estipona-Hao ("Estipona-Hao") filed
a petition for proclamation as the winning candidate for mayor.
Respondent signed as counsel for Estipona-Hao in this petition. When
respondent appeared as counsel before the MBEC, complainant
questioned his appearance on two grounds: (1) respondent had not
taken his oath as a lawyer; and (2) he was an employee of the
government. chan robles virtual law library
Respondent filed a Reply (Re: Reply to Respondents Comment)
reiterating his claim that the instant administrative case is "motivated
mainly by political vendetta."
On 17 July 2001, the Court referred the case to the Office of the Bar
Confidant ("OBC") for evaluation, report and recommendation.
OBCs Report and Recommendation
The OBC found that respondent indeed appeared before the MBEC as
counsel for Bunan in the May 2001 elections. The minutes of the MBEC
proceedings show that respondent actively participated in the
proceedings. The OBC likewise found that respondent appeared in the
MBEC proceedings even before he took the lawyers oath on 22 May
2001. The OBC believes that respondents misconduct casts a serious
doubt on his moral fitness to be a member of the Bar. The OBC also
believes that respondents unauthorized practice of law is a ground to
deny his admission to the practice of law. The OBC, therefore,
recommends that respondent be denied admission to the Philippine Bar.
On the other charges, OBC stated that complainant failed to cite a law
which respondent allegedly violated when he appeared as counsel for
Bunan while he was a government employee. Respondent resigned as
secretary and his resignation was accepted. Likewise, respondent was
authorized by Bunan to represent him before the MBEC.
The Courts Ruling
We agree with the findings and conclusions of the OBC that respondent
engaged in the unauthorized practice of law and thus does not deserve
admission to the Philippine Bar.
Respondent took his oath as lawyer on 22 May 2001. However, the
records show that respondent appeared as counsel for Bunan prior to 22
May 2001, before respondent took the lawyers oath. In the pleading
entitled Formal Objection to the Inclusion in the Canvassing of Votes in
Some Precincts for the Office of Vice-Mayor dated 19 May 2001,
respondent signed as "counsel for George Bunan." In the first paragraph
of the same pleading respondent stated that he was the "(U)ndersigned
Counsel for, and in behalf of Vice Mayoralty Candidate, GEORGE T.
BUNAN." Bunan himself wrote the MBEC on 14 May 2001 that he had
"authorized Atty. Edwin L. Rana as his counsel to represent him" before
the MBEC and similar bodies. chan robles virtual law library
On 14 May 2001, mayoralty candidate Emily Estipona-Hao also
"retained" respondent as her counsel. On the same date, 14 May 2001,
Erly D. Hao informed the MBEC that "Atty. Edwin L. Rana has been
authorized by REFORMA LM-PPC as the legal counsel of the party and
the candidate of the said party." Respondent himself wrote the MBEC
on 14 May 2001 that he was entering his "appearance as counsel for
Mayoralty Candidate Emily Estipona-Hao and for the REFORMA LM-
PPC." On 19 May 2001, respondent signed as counsel for Estipona-Hao
Page 16
in the petition filed before the MBEC praying for the proclamation of
Estipona-Hao as the winning candidate for mayor of Mandaon, Masbate.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
All these happened even before respondent took the lawyers oath.
Clearly, respondent engaged in the practice of law without being a
member of the Philippine Bar.
In Philippine Lawyers Association v. Agrava,[1] the Court elucidated
that:
The practice of law is not limited to the conduct of cases or litigation in
court; it embraces the preparation of pleadings and other papers incident
to actions and special proceedings, the management of such actions and
proceedings on behalf of clients before judges and courts, and in
addition, conveyancing. In general, all advice to clients, and all action
taken for them in matters connected with the law, incorporation services,
assessment and condemnation services contemplating an appearance
before a judicial body, the foreclosure of a mortgage, enforcement of a
creditor's claim in bankruptcy and insolvency proceedings, and
conducting proceedings in attachment, and in matters of estate and
guardianship have been held to constitute law practice, as do the
preparation and drafting of legal instruments, where the work done
involves the determination by the trained legal mind of the legal effect of
facts and conditions. (5 Am. Jur. p. 262, 263). [Italics supplied] x x x
chan robles virtual law library
In Cayetano v. Monsod,[2] the Court held that "practice of law" means
any activity, in or out of court, which requires the application of law, legal
procedure, knowledge, training and experience. To engage in the
practice of law is to perform acts which are usually performed by
members of the legal profession. Generally, to practice law is to render
any kind of service which requires the use of legal knowledge or skill.
Verily, respondent was engaged in the practice of law when he appeared
in the proceedings before the MBEC and filed various pleadings, without
license to do so. Evidence clearly supports the charge of unauthorized
practice of law. Respondent called himself "counsel" knowing fully well
that he was not a member of the Bar. Having held himself out as
"counsel" knowing that he had no authority to practice law, respondent
has shown moral unfitness to be a member of the Philippine Bar.[3]
The right to practice law is not a natural or constitutional right but is a
privilege. It is limited to persons of good moral character with special
qualifications duly ascertained and certified. The exercise of this
privilege presupposes possession of integrity, legal knowledge,
educational attainment, and even public trust[4] since a lawyer is an
officer of the court. A bar candidate does not acquire the right to
practice law simply by passing the bar examinations. The practice of law
is a privilege that can be withheld even from one who has passed the bar
examinations, if the person seeking admission had practiced law without
a license.[5]
The regulation of the practice of law is unquestionably strict. In Beltran,
Jr. v. Abad,[6] a candidate passed the bar examinations but had not
taken his oath and signed the Roll of Attorneys. He was held in contempt
of court for practicing law even before his admission to the Bar. Under
Section 3 (e) of Rule 71 of the Rules of Court, a person who engages in
the unauthorized practice of law is liable for indirect contempt of court.[7]
chan robles virtual law library
True, respondent here passed the 2000 Bar Examinations and took the
lawyers oath. However, it is the signing in the Roll of Attorneys that
finally makes one a full-fledged lawyer. The fact that respondent passed
the bar examinations is immaterial. Passing the bar is not the only a
qualification to become an attorney-at-law.[8] Respondent should know
that two essential requisites for becoming a lawyer still had to be
performed, namely: his lawyers oath to be administered by this Court
and his signature in the Roll of Attorneys.[9]
PINEDAPCGRNMAN
On the charge of violation of law, complainant contends that the law does
not allow respondent to act as counsel for a private client in any court or
administrative body since respondent is the secretary of the
Sangguniang Bayan.
Respondent tendered his resignation as secretary of the Sangguniang
Bayan prior to the acts complained of as constituting unauthorized
practice of law. In his letter dated 11 May 2001 addressed to Napoleon
Relox, vice- mayor and presiding officer of the Sangguniang Bayan,
respondent stated that he was resigning "effective upon your
acceptance."[10] Vice-Mayor Relox accepted respondents resignation
effective 11 May 2001.[11] Thus, the evidence does not support the
charge that respondent acted as counsel for a client while serving as
secretary of the Sangguniang Bayan.
On the charge of grave misconduct and misrepresentation, evidence
shows that Bunan indeed authorized respondent to represent him as his
counsel before the MBEC and similar bodies. While there was no
misrepresentation, respondent nonetheless had no authority to practice
law. chan robles virtual law library
WHEREFORE, respondent Edwin L. Rana is DENIED admission to the
Philippine Bar.
SO ORDERED.
E. Good Moral Character
Continued possession of good moral character after
admission is a requirement for enjoyment of privilege to practice.
Moral character is what a person really is as distinguished from
good reputation or opinion generally entertained of him.
Includes at least common honesty.
Opposite of immorality, which is the indifference to the moral norms
of society.
This requirement aims to maintain and uphold the high moral
standard and the dignity of the legal profession.
A.C. No. 5095 November 28, 2007
FATHER RANHILIO C. AQUINO, LINA M. GARAN, ESTRELLA C.
LOZADA, POLICARPIO L. MABBORANG, DEXTER R. MUNAR,
MONICO U. TENEDRO, ANDY R. QUEBRAL, NESTOR T. RIVERA,
EDUARDO C. RICAMORA, ARTHUR G. IBAEZ, AURELIO C.
CALDEZ and DENU A. AGATEP, complainants,
vs.
ATTY. EDWIN PASCUA, respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the letter-complaint dated August 3, 1999 of Father
Ranhilio C. Aquino, then Academic Head of the Philippine Judicial
Academy, joined by Lina M. Garan and the other above-named
complainants, against Atty. Edwin Pascua, a Notary Public in Cagayan.
In his letter-complaint, Father Aquino alleged that Atty. Pascua falsified
two documents committed as follows:
(1) He made it appear that he had notarized the "Affidavit-Complaint" of
one Joseph B. Acorda entering the same as "Doc. No. 1213, Page No.
243, Book III, Series of 1998, dated December 10, 1998".
(2) He also made it appear that he had notarized the "Affidavit-
Complaint" of one Remigio B. Domingo entering the same as "Doc. No.
1214, Page 243, Book III, Series of 1998, dated December 10, 1998.
Father Aquino further alleged that on June 23 and July 26, 1999, Atty.
Angel Beltran, Clerk of Court, Regional Trial Court, Tuguegarao, certified
that none of the above entries appear in the Notarial Register of Atty.
Page 17
Pascua; that the last entry therein was Document No. 1200 executed on
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
December 28, 1998; and that, therefore, he could not have notarized
Documents Nos. 1213 and 1214 on December 10, 1998.
In his comment on the letter-complaint dated September 4, 1999, Atty.
Pascua admitted having notarized the two documents on December 10,
1998, but they were not entered in his Notarial Register due to the
oversight of his legal secretary, Lyn Elsie C. Patli, whose affidavit was
attached to his comment.
The affidavit-complaints referred to in the notarized documents were filed
by Atty. Pascua with the Civil Service Commission. Impleaded as
respondents therein were Lina M. Garan and the other above-named
complainants. They filed with this Court a "Motion to Join the Complaint
and Reply to Respondent's Comment." They maintain that Atty. Pascua's
omission was not due to inadvertence but a clear case of falsification.1
On November 16, 1999, we granted their motion.2
Thereafter, we referred the case to the Office of the Bar Confidant for
investigation, report and recommendation.
On April 21, 2003, the Office of the Bar Confidant issued its Report and
Recommendation partly reproduced as follows:
A notarial document is by law entitled to full faith and credit upon its face.
For this reason, notaries public must observe the utmost care to comply
with the formalities and the basic requirement in the performance of their
duties (Realino v. Villamor, 87 SCRA 318).
Under the notarial law, "the notary public shall enter in such register, in
chronological order, the nature of each instrument executed, sworn to,
or acknowledged before him, the person executing, swearing to, or
acknowledging the instrument, xxx xxx. The notary shall give to each
instrument executed, sworn to, or acknowledged before him a number
corresponding to the one in his register, and shall also state on the
instrument the page or pages of his register on which the same is
recorded. No blank line shall be left between entries" (Sec. 246, Article
V, Title IV, Chapter II of the Revised Administrative Code).
Failure of the notary to make the proper entry or entries in his notarial
register touching his notarial acts in the manner required by law is a
ground for revocation of his commission (Sec. 249, Article VI).
In the instant case, there is no question that the subject documents
allegedly notarized by Atty. Pascua were not recorded in his notarial
register.
Atty. Pascua claims that the omission was not intentional but due to
oversight of his staff. Whichever is the case, Atty. Pascua cannot escape
liability. His failure to enter into his notarial register the documents that
he admittedly notarized is a dereliction of duty on his part as a notary
public and he is bound by the acts of his staff.
The claim of Atty. Pascua that it was simple inadvertence is far from true.
The photocopy of his notarial register shows that the last entry which he
notarized on December 28, 1998 is Document No. 1200 on Page 240.
On the other hand, the two affidavit-complaints allegedly notarized on
December 10, 1998 are Document Nos. 1213 and 1214, respectively,
under Page No. 243, Book III. Thus, Fr. Ranhilio and the other
complainants are, therefore, correct in maintaining that Atty. Pascua
falsely assigned fictitious numbers to the questioned affidavit-
complaints, a clear dishonesty on his part not only as a Notary Public,
but also as a member of the Bar.
This is not to mention that the only supporting evidence of the claim of
inadvertence by Atty. Pascua is the affidavit of his own secretary which
is hardly credible since the latter cannot be considered a disinterested
witness or party.
Noteworthy also is the fact that the questioned affidavit of Acorda (Doc.
No. 1213) was submitted only when Domingo's affidavit (Doc. No. 1214)
was withdrawn in the administrative case filed by Atty. Pascua against
Lina Garan, et al. with the CSC. This circumstance lends credence to the
submission of herein complainants that Atty. Pascua ante-dated another
affidavit-complaint making it appear as notarized on December 10, 1998
and entered as Document No. 1213. It may not be sheer coincidence
then that both documents are dated December 10, 1998 and numbered
as 1213 and 1214.
PINEDAPCGRNMAN
A member of the legal fraternity should refrain from doing any act which
might lessen in any degree the confidence and trust reposed by the
public in the fidelity, honesty and integrity of the legal profession (Maligsa
v. Cabanting, 272 SCRA 409).
As a lawyer commissioned to be a notary public, Atty. Pascua is
mandated to subscribe to the sacred duties appertaining to his office,
such duties being dictated by public policy and impressed with public
interest.
A member of the Bar may be disciplined or disbarred for any misconduct
in his professional or private capacity. The Court has invariably imposed
a penalty for notaries public who were found guilty of dishonesty or
misconduct in the performance of their duties.
In Villarin v. Sabate, Jr. (325 SCRA 123), respondent lawyer was
suspended from his Commission as Notary Public for a period of one
year for notarizing a document without affiants appearing before him,
and for notarizing the same instrument of which he was one of the
signatories. The Court held that respondent lawyer failed to exercise due
diligence in upholding his duties as a notary public.
In Arrieta v. Llosa (282 SCRA 248), respondent lawyer who certified
under oath a Deed of Absolute Sale knowing that some of the vendors
were dead was suspended from the practice of law for a period of six (6)
months, with a warning that another infraction would be dealt with more
severely. In said case, the Court did not impose the supreme penalty of
disbarment, it being the respondent's first offense.
In Maligsa v. Cabanting (272 SCRA 409), respondent lawyer was
disbarred from the practice of law, after being found guilty of notarizing
a fictitious or spurious document. The Court considered the seriousness
of the offense and his previous misconduct for which he was suspended
for six months from the practice of law.
It appearing that this is the first offense of Atty. Pascua, a suspension
from the practice of law for a period of six (6) months may be considered
enough penalty for him as a lawyer. Considering that his offense is also
a ground for revocation of notarial commission, the same should also be
imposed upon him.
PREMISES CONSIDERED, it is most respectfully recommended that the
notarial commission of Atty. EDWIN V. PASCUA, if still existing, be
REVOKED and that he be SUSPENDED from the practice of law for a
period of six (6) months."3
After a close review of the records of this case, we resolve to adopt the
findings of facts and conclusion of law by the Office of the Bar Confidant.
We find Atty. Pascua guilty of misconduct in the performance of his
duties for failing to register in his Notarial Register the affidavit-
complaints of Joseph B. Acorda and Remigio B. Domingo.
"Misconduct" generally means wrongful, improper or unlawful conduct
motivated by a premeditated, obstinate or intentional purpose.4 The
term, however, does not necessarily imply corruption or criminal intent.5
The penalty to be imposed for such act of misconduct committed by a
lawyer is addressed to the sound discretion of the Court. In Arrieta v.
Llosa,6 wherein Atty. Joel A. Llosa notarized a Deed of Absolute Sale
knowing that some of the vendors were already dead, this Court held
that such wrongful act "constitutes misconduct" and thus imposed upon
him the penalty of suspension from the practice of law for six months,
this being his first administrative offense. Also, in Vda. de Rosales v.
Ramos,7 we revoked the notarial commission of Atty. Mario G. Ramos
and suspended him from the practice of law for six months for violating
the Notarial Law in not registering in his notarial book the Deed of
Absolute Sale he notarized. In Mondejar v. Rubia,8 however, a lesser
penalty ofone month suspension from the practice of law was imposed
on Atty. Vivian G. Rubia for making a false declaration in the document
she notarized.
In the present case, considering that this is Atty. Pascua's first offense,
we believe that the imposition of a three-month suspension from the
practice of law upon him is in order. Likewise, since his offense is a
ground for revocation of notarial commission, the same should also be
Page 18
imposed upon him.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
WHEREFORE, Atty. Edwin Pascua is declared GUILTY of misconduct
and is SUSPENDED from the practice of law for three (3) months with a
STERN WARNING that a repetition of the same or similar act will be
dealt with more severely. His notarial commission, if still existing, is
ordered REVOKED.
SO ORDERED.
JBC No. 013 August 22, 2007
Re: Non-disclosure Before the Judicial and Bar Council of the
Administrative Case Filed Against Judge Jaime V. Quitain, in His
Capacity as the then Asst. Regional Director of the National Police
Commission, Regional Office XI, Davao City.
DECISION
PER CURIAM:
Judge Jaime Vega Quitain was appointed Presiding Judge of the
Regional Trial Court (RTC), Branch 10, Davao City on May 17, 2003.1
Subsequent thereto, the Office of the Court Administrator (OCA)
received confidential information that administrative and criminal
charges were filed against Judge Quitain in his capacity as then
Assistant Regional Director, National Police Commission (NAPOLCOM),
Regional Office 11, Davao City, as a result of which he was dismissed
from the service per Administrative Order (A.O.) No. 183 dated April 10,
1995.
In the Personal Data Sheet (PDS)2 submitted to the Judicial and Bar
Council (JBC) on November 26, 2001, Judge Quitain declared that there
were five criminal cases (Criminal Cases Nos. 18438, 18439, 22812,
22813, and 22814) filed against him before the Sandiganbayan, which
were all dismissed. No administrative case was disclosed by Judge
Qutain in his PDS.
To confirm the veracity of the information, then Deputy Court
Administrator (DCA) Christopher O. Lock (now Court Administrator)
requested from the Sandiganbayan certified copies of the Order(s)
dismissing the criminal cases.3On even date, letters4 were sent to the
NAPOLCOM requesting for certified true copies of documents relative to
the administrative complaints filed against Judge Quitain, particularly
A.O. No. 183 dated April 10, 1995 dismissing him from the service.
Likewise, DCA Lock required Judge Quitain to explain the alleged
misrepresentation and deception he committed before the JBC.5
In a letter6 dated November 28, 2003, the NAPOLCOM furnished the
Office of the Court Administrator (OCA) a copy of A.O. No. 183 showing
that respondent Judge was indeed dismissed from the service for Grave
Misconduct for falsifying or altering the amounts reflected in
disbursement vouchers in support of his claim for reimbursement of
expenses. A.O. 183 partly reads:
THE PRESIDENT OF THE PHILIPPINES
ADMINISTRATIVE ORDER NO. 183
DISMISSING FROM THE SERVICE ASSISTANT REGIONAL
DIRECTOR JAIME VEGA QUITAIN, NATIONAL POLICE
COMMISSION, REGIONAL OFFICE NO. 11
This refers to the administrative complaint against Jaime Vega Quitain,
Assistant Regional Director, National Police Commission (NAPOLCOM),
Regional Office No. 11, Davao City, for Grave Misconduct (Violation of
Art. 48, in relation to Arts. 171 and 217 of the Revised Penal Code and
Art. IX of the Civil Service Law) filed by the NAPOLCOM.
xxxx
After circumspect study, I am in complete accord with the above findings
and recommendation of the NAPOLCOM.
It was established that the falsification could not have been
consummated without respondents direct participation, as it was upon
his direction and approval that disbursement vouchers were prepared
showing the falsified amount. The subsequent endorsement and
encashment of the check by respondent only shows his complete
disregard for the truth which per se constitutes misconduct and
dishonesty of the highest order. By any standard, respondent had
manifestly shown that he is unfit to discharge the functions of his office.
PINEDAPCGRNMAN
Needless to stress, a public office is a position of trust and public service
demands of every government official or employee, no matter how lowly
his position may be, the highest degree of responsibility and integrity and
he must remain accountable to the people. Moreover, his failure to
adduce evidence in support of his defense is a tacit admission of his guilt.
Let this be a final reminder to him that the government is serious enough
to [weed out] misfits in the government service, and it will not be
irresolute to impose the severest sanction regardless of personalities
involved. Accordingly, respondents continuance in office becomes
untenable.
WHEREFORE, and as recommended by the NAPOLCOM, Assistant
Regional Director Jaime Vega Quitain is hereby DISMISSED from the
service, with forfeiture of pay and benefits, effective upon receipt of a
copy hereof.
Done in the City of Manila, this 10th day of April in the year of our Lord,
nineteen hundred and ninety-five.
(Sgd. by President Fidel V. Ramos)
By the President:
(Sgd.)
TEOFISTO T. GUINGONA, JR.
Executive Secretary7
In a letter8 dated October 22, 2003 addressed to DCA Lock, Judge
Quitain denied having committed any misrepresentation before the JBC.
He alleged that during his interview, the members thereof only inquired
about the status of the criminal cases filed by the NAPOLCOM before
the Sandiganbayan, and not about the administrative case
simultaneously filed against him. He also alleged that he never received
from the Office of the President an official copy of A.O. No. 183
dismissing him from the service.
Thereafter, DCA Lock directed Judge Quitain to explain within ten (10)
days from notice why he did not include in his PDS, which was sworn to
before a notary public on November 22, 2001, the administrative case
filed against him, and the fact of his dismissal from the service.9
In his letters10 dated March 13, 2004 and June 17, 2004, respondent
explained that during the investigation of his administrative case by the
NAPOLCOM Ad Hoc Committee, one of its members suggested to him
that if he resigns from the government service, he will no longer be
prosecuted; that following such suggestion, he tendered his irrevocable
resignation from NAPOLCOM on June 1, 199311 which was immediately
accepted by the Secretary of the Department of Interior and Local
Governments; that he did not disclose the case in his PDS because he
was of the "honest belief" that he had no more pending administrative
case by reason of his resignation; that his resignation "amounted to an
automatic dismissal" of his administrative case considering that "the
issues raised therein became moot and academic"; and that had he
known that he would be dismissed from the service, he should not have
applied for the position of a judge since he knew he would never be
appointed.
Finding reasonable ground to hold him administratively liable, then Court
Administrator Presbitero J. Velasco, Jr. (now a member of this Court)
and then DCA Lock submitted a Memorandum12 dated September 3,
2004 to then Chief Justice Hilario G. Davide, Jr., which states:
In order that this Office may thoroughly and properly evaluate the matter,
we deemed it necessary to go over the records of the subject
administrative case against Judge Jaime V. Quitain, particularly the
matter that pertains to Administrative Order No. 183 dated 10 April 1995.
On 15 May 2004, we examined the records of said administrative case
on file with the NAPOLCOM, Legal Affairs Service, and secured certified
[true] copies of pertinent documents.
After careful perusal of the documents and records available, including
the letters-explanations of Judge Jaime V. Quitain, this Office finds that
there are reasonable grounds to hold him administratively liable.
An examination of the Personal Data Sheet submitted by Judge Quitain
with the Judicial and Bar Council, which was subscribed and sworn to
Page 19
before Notary Public Bibiano M. Bustamante of Davao City on 22
November 2001, reveals that he concealed material facts and even
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
committed perjury in having answered "yes" to Question No. 24, but
without disclosing the fact that he was dismissed from the government
service. Question No. 24 and his answer thereto are hereunder quoted
as follows:
24. Have you ever been charged with or convicted of or otherwise
imposed a sanction for the violation of any law, decree, ordinance or
regulation by any court, tribunal or any other government office, agency
or instrumentality in the Philippines or in any foreign country or found
guilty of an administrative offense or imposed any administrative
sanction? [ / ] Yes [ ] No. If your answer is "Yes" to any of the questions,
give particulars.
But all dismissed (acquitted)
Sandiganbayan Criminal Cases Nos. 18438, 18439
Date of [Dismissal] August 2, 1995
Sandiganbayan Criminal Cases Nos. 22812, 22813, 22814
Date of [Dismissal] July 17, 2000
As borne out by the records, Judge Quitain deliberately did not disclose
the fact that he was dismissed from the government service. At the time
he filled up and submitted his Personal Data Sheet with the Judicial and
Bar Council, he had full knowledge of the subject administrative case, as
well as Administrative Order No. 183 dismissing him from the
government service. Based on the certified documents secured from the
Office of the NAPOLCOM, the following data were gathered:
1. In compliance with the "Summons" dated 19 March 1993, signed by
Commissioner Alexis C. Canonizado, Chairman, Ad Hoc Committee of
the NAPOLCOM, Judge Jaime V. Quitain, through Atty. Pedro S.
Castillo, filed his Answer (dated 29 March 1993) to the administrative
complaint lodged against him by the Napolcom;
2. On 30 March 1993, Judge Quitain received a copy of the "Notice of
Hearing" of even date, signed by Mr. Canonizado, in connection with the
formal hearing of the subject administrative case scheduled on 30 April
1993;
3. Administrative Order No. 183, dismissing Judge Quitain from the
service, was dated 10 April 1995. On 18 April 1995, newspaper items
relative to the dismissal of Judge Quitain were separately published in
the Mindanao Daily Mirror and in the Mindanao Times, the contents of
which read as follows:
Mindanao Times:
Dismissed NAPOLCOM chief airs appeal
Former National Police Commission (Napolcom) acting regional director
Jaime Quitain yesterday appealed for understanding to those allegedly
behind his ouster from his post two years ago. Quitain, who was one of
the guests in yesterdays Kapehan sa Dabaw, wept unabashedly as he
read his prepared statement on his dismissal from government service.
Quitain claimed that after Secretary Luis Santos resigned from the
Department of Interior and Local Governments in 1991, a series of
administrative charges were hurled against him by some regional
employees.
"I was dismissed from the Napolcom Office without due process," Quitain
said.
He also said he had no idea as to who the people (sic) are behind the
alleged smear campaign leveled against him.
"Whoever is behind all this, I have long forgiven you. My only appeal to
you, give me my day in court, give me the chance to clear my name, the
only legacy that I can leave to my children," Quitain said in his statement.
"It is my constitutional right to be present in all proceedings of the
administrative case," he also said.
Quitain was appointed Assistant Regional Director of Napolcom in 1991
by then President Corazon Aquino upon the recommendation of
Secretary Santos. He was later designated Napolcom acting regional
director for Region XI.
Mindanao Daily Mirror:
Quitain vows to clear name
Former assistant regional director Jaime Quitain of the National Police
Commission (Napolcom) vowed yesterday to clear his name in court
from charges of tampering with an official receipt.
PINEDAPCGRNMAN
Quitain[,] who is running for a council seat, expressed confidence that he
would soon be vindicated in court against the group that plotted his
ouster from office: He said his only appeal was for Interior and Local
Government Secretary Rafael Alunan to grant him his day in court to
answer the charges.
"Whoever was behind all of these things, I have long forgiven them,"
Quitain said.
"Just give me the chance to clear my name because this is the only
legacy that I can give my children," Quitain said.
While the records of the subject administrative case on file with the
NAPOLCOM Office does not bear proof of receipt of Administrative
Order No. 183 by Judge Quitain, the same does not necessarily mean
that he is totally unaware of said Administrative Order. As shown by the
above-quoted newspaper clippings, Judge Quitain even aired his appeal
and protest to said Administrative Order.
xxxx
Judge Quitain asseverated that he should not have applied with the JBC
had he known that he was administratively charged and was
consequently dismissed from the service since he will not be considered.
But this may be the reason why he deliberately concealed said fact. His
claim that he did not declare the administrative case in his Personal Data
Sheet because of his honest belief that there is no administrative or
criminal case that would be filed against him by reason of his resignation
and the assurance made by the NAPOLCOM that no administrative case
will be filed, does not hold water. It is rather absurd for him to state that
his resignation from the NAPOLCOM amounts to an automatic dismissal
of whatever administrative case filed against him because when he
resigned and relinquished his position, the issues raised therein became
moot and academic. He claims that he did not bother to follow up the
formal dismissal of the administrative case because of said belief. All
these are but futile attempts to exonerate himself from administrative
culpability in concealing facts relevant and material to his application in
the Judiciary. As a member of the Bar, he should know that his
resignation from the NAPOLCOM would not obliterate any administrative
liability he may have incurred[,] much less, would it result to the
automatic dismissal of the administrative case filed against him. The
acceptance of his resignation is definitely without prejudice to the
continuation of the administrative case filed against him. If such would
be the case, anyone charged administratively could easily escape from
administrative sanctions by the simple expedient of resigning from the
service. Had it been true that Judge Quitain honestly believes that his
resignation amounts to the automatic dismissal of his administrative
case, the least he could have done was to personally verify the status
thereof. He should not have relied on the alleged assurance made by the
NAPOLCOM.
On the strength of his misrepresentation, Judge Quitain misled the
Judicial and Bar Council by making it appear that he had a clean record
and was qualified to join the Judiciary. His prior dismissal from the
government service is a blot on his record, which has gone [worse] and
has spread even more because of his concealment of it. Had he not
concealed said vital fact, it could have been taken into consideration
when the Council acted on his application. His act of dishonesty renders
him unfit to join the Judiciary, much less remain sitting as a judge. It even
appears that he was dismissed by the NAPOLCOM for misconduct and
dishonesty.
Thus, the OCA recommended that: (1) the instant administrative case
against respondent be docketed as an administrative matter; and (2) that
he be dismissed from the service with prejudice to his reappointment to
any position in the government, including government-owned or
controlled corporations, and with forfeiture of all retirement benefits
except accrued leave credits.
Respondent was required to Comment.13
In compliance with the Courts Resolution respondent filed his
Comment14 contending that before he filed his application for RTC
Page 20
Judge with the JBC, he had no knowledge that he was administratively
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
dismissed from the NAPOLCOM service as the case was "secretly heard
and decided." He averred that:
1. Being a religious lay head and eventually the Pastoral Head of the
Redemptorist Eucharistic Lay Ministry in Davao City and the surrounding
provinces, he was recruited as one of the political followers of then Mayor
Luis T. Santos of Davao City, who later became the Secretary of the
Department of Interior and Local Government (DILG) and was
instrumental in his appointment as Assistant Regional Director of the
National Police Commission, Region XI;
2. After Secretary Luis T. Santos was replaced as DILG Secretary, the
political followers of his successor, who were the same followers
involved in the chain of corruption prevalent in their department, began
quietly pressing for his (Quitain) resignation as Assistant Regional
Director;
3. Finding difficulty in attacking his honesty and personal integrity, his
detractors went to the extent of filing criminal charges against him;
4. Before these criminal charges were scheduled for trial, he was being
convinced to resign in exchange for the dismissal of said criminal
charges, but when he refused to do so, he was unjustifiably detailed or
"exiled" at the DILG central office in Manila;
5. Upon his "exile" in Manila for several months, he realized that even
his immediate superiors cooperated with his detractors in instigating for
his removal. Hence, upon advice of his relatives, friends and the heads
of their pastoral congregation, he resigned from his position in
NAPOLCOM on condition that all pending cases filed against him,
consisting of criminal cases only, shall be dismissed, as in fact they were
dismissed;
6. From then on he was never formally aware of any administrative case
filed against him. Hence, when he submitted his Personal Data Sheet
before the Judicial and Bar Council in support of his application as RTC
judge, he made the following answer in Question No. 23:
23. Is there any pending civil, criminal, or administrative (including
disbarment) case or complaint filed against you pending before any
court, prosecution office, any other office, agency or instrumentality of
the government, or the Integrated Bar of the Philippines?
He could only give a negative answer since there was no pending
administrative case filed against him that he knows;
7. Had he known that there was an administrative case filed against him
he would have desisted from applying as a judge and would have given
his full attention to the said administrative case, if only to avoid ensuing
embarrassment; and
8. The filing of the administrative case against him as well as the
proceedings had thereon and the decision rendered therein, without his
knowledge, could have probably occurred during his "exile period" when
he was detailed indefinitely in Manila. The proceedings had in the said
administrative case are null and void since he was denied due process.
Respondents Comment was submitted to the OCA for evaluation, report
and recommendation.15
OCA submitted its Memorandum16 dated August 11, 2005 stating
therein that it was adopting its earlier findings contained in its
Memorandum dated September 3, 2004. Based on the documents
presented, it can not be denied that at the time Judge Quitain applied as
an RTC judge, he had full knowledge of A.O. No. 183 dismissing him
from government service. Considering that Judge Quitains explanations
in his Comment are but mere reiterations of his allegations in the
previous letters to the OCA, the OCA maintained its recommendation
that Judge Quitain be dismissed from the service with prejudice to his
reappointment to any position in the government, including government-
owned or controlled corporations, and with forfeiture of all retirement
benefits except accrued leave credits.
The Court fully agrees with the disquisition and the recommendation of
the OCA.
It behooves every prospective appointee to the Judiciary to apprise the
appointing authority of every matter bearing on his fitness for judicial
office, including such circumstances as may reflect on his integrity and
PINEDAPCGRNMAN
probity. These are qualifications specifically required of appointees to the
Judiciary by Sec. 7(3), Article VIII of the Constitution.17
In this case, Judge Quitain failed to disclose that he was administratively
charged and dismissed from the service for grave misconduct per A.O.
No. 183 dated April 10, 1995 by no less than the former President of the
Philippines. He insists that on November 26, 2001 or before he filed with
the JBC his verified PDS in support of his application for RTC Judge, he
had no knowledge of A.O. No. 183; and that he was denied due process.
He further argues that since all the criminal cases filed against him were
dismissed on August 2, 1995 and July 17, 2000, and considering the fact
that he resigned from office, his administrative case had become moot
and academic.
Respondents contentions utterly lack merit.
No amount of explanation or justification can erase the fact that Judge
Quitain was dismissed from the service and that he deliberately withheld
this information. His insistence that he had no knowledge of A.O. No.
183 is belied by the newspaper items published relative to his dismissal.
It bears emphasis that in the Mindanao Times dated April 18, 1995,18
Judge Quitain stated in one of his interviews that "I was dismissed from
the (Napolcom) office without due process." It also reads: "Quitain, who
was one of the guests in yesterdays Kapehan sa Dabaw, wept
unabashedly as he read his prepared statement on his dismissal from
the government service." Neither can we give credence to the contention
that he was denied due process. The documents submitted by the
NAPOLCOM to the OCA reveal that Commissioner Alexis C.
Canonizado, Chairman Ad Hoc Committee, sent him summons on March
19, 1993 informing him that an administrative complaint had been filed
against him and required him to file an answer.19 Then on March 29,
1993, respondent, through his counsel, Atty. Pedro Castillo, filed an
Answer.20 In administrative proceedings, the essence of due process is
simply an opportunity to be heard, or an opportunity to explain ones side
or opportunity to seek a reconsideration of the action or ruling
complained of. Where opportunity to be heard either through oral
arguments or through pleadings is accorded, there is no denial of due
process.21 Furthermore, as we have earlier mentioned and which Judge
Quitain ought to know, cessation from office by his resignation does not
warrant the dismissal of the administrative complaint filed against him
while he was still in the service nor does it render said administrative
case moot and academic.22Judge Quitain was removed from office after
investigation and was found guilty of grave misconduct. His dismissal
from the service is a clear proof of his lack of the required qualifications
to be a member of the Bench.
More importantly, it is clear that Judge Quitain deliberately misled the
JBC in his bid to gain an exalted position in the Judiciary. In Office of the
Court Administrator v. Estacion, Jr.,23 this Court stressed:
x x x The important consideration is that he had a duty to inform the
appointing authority and this Court of the pending criminal charges
against him to enable them to determine on the basis of his record,
eligibility for the position he was seeking. He did not discharge that duty.
His record did not contain the important information in question because
he deliberately withheld and thus effectively hid it. His lack of candor is
as obvious as his reason for the suppression of such a vital fact, which
he knew would have been taken into account against him if it had been
disclosed."
Thus, we find respondent guilty of dishonesty. "Dishonesty" means
"disposition to lie, cheat or defraud; unworthiness; lack of integrity."24
Section 8(2), Rule 14025 of the Rules of Court classifies dishonesty as
a serious charge. Section 11, same Rules, provides the following
sanctions:
SEC. 11. Sanctions. A. If the respondent is guilty of a serious charge,
any of the following sanctions may be imposed:
1. Dismissal from the service, forfeiture of all or part of the benefits as
the Court may determine, and disqualification from reinstatement or
appointment to any public office, including government-owned or
Page 21
controlled corporations. Provided, however, That the forfeiture of
benefits shall in no case include accrued leave credits;
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
2. Suspension from office without salary and other benefits for more than
three (3) but not exceeding six (6) months; or
3. A fine of not less than P20,000.00 but not exceeding P40,000.00.
In Re: Inquiry on the Appointment of Judge Enrique A. Cube,26 we held:
By his concealment of his previous dismissal from the public service,
which the Judicial and Bar Council would have taken into consideration
in acting on his application, Judge Cube committed an act of dishonesty
that rendered him unfit to be appointed to, and to remain now in, the
Judiciary he has tarnished with his falsehood.
WHEREFORE, Judge Enrique A. Cube of the Metropolitan Trial Court of
Manila is DISMISSED with prejudice to his reappointment to any position
in the government, including government-owned or controlled
corporations, and with forfeiture of all retirement benefits. This decision
is immediately executory.
We cannot overemphasize the need for honesty and integrity on the part
of all those who are in the service of the Judiciary.27 We have often
stressed that the conduct required of court personnel, from the presiding
judge to the lowliest clerk of court, must always be beyond reproach and
circumscribed with the heavy burden of responsibility as to let them be
free from any suspicion that may taint the Judiciary. We condemn, and
will never countenance any conduct, act or omission on the part of all
those involved in the administration of justice, which would violate the
norm of public accountability and diminish or even just tend to diminish
the faith of the people in the Judiciary.28lavvphil
Considering the foregoing, Judge Quitain is hereby found guilty of grave
misconduct. He deserves the supreme penalty of dismissal.
However, on August 9, 2007, the Court received a letter from Judge
Quitain addressed to the Chief Justice stating that he is tendering his
irrevocable resignation effective immediately as Presiding Judge of the
Regional Trial Court, Branch 10, Davao City. Acting on said letter, "the
Court Resolved to accept the irrevocable resignation of Judge Jaime V.
Quitain effective August 15, 2007, without prejudice to the decision of
the administrative case."29
Verily, the resignation of Judge Quitain which was accepted by the Court
without prejudice does not render moot and academic the instant
administrative case. The jurisdiction that the Court had at the time of the
filing of the administrative complaint is not lost by the mere fact that the
respondent judge by his resignation and its consequent acceptance
without prejudice by this Court, has ceased to be in office during the
pendency of this case. The Court retains its authority to pronounce the
respondent official innocent or guilty of the charges against him. A
contrary rule would be fraught with injustice and pregnant with dreadful
and dangerous implications.30Indeed, if innocent, the respondent official
merits vindication of his name and integrity as he leaves the government
which he has served well and faithfully; if guilty, he deserves to receive
the corresponding censure and a penalty proper and imposable under
the situation.31
WHEREFORE, in view of our finding that JUDGE JAIME V. QUITAIN is
guilty of grave misconduct which would have warranted his dismissal
from the service had he not resigned during the pendency of this case,
he is hereby meted the penalty of a fine of P40,000.00. It appearing that
he has yet to apply for his retirement benefits and other privileges, if any,
the Court likewise ORDERS the FORFEITURE of all benefits, except
earned leave credits which Judge Quitain may be entitled to, and he is
PERPETUALLY DISQUALIFIED from reinstatement and appointment to
any branch, instrumentality or agency of the government, including
government-owned and/or controlled corporations.
This Decision is immediately executory.
Let a copy of this Decision be attached to Judge Jaime V. Quitains 201
File.
SO ORDERED.
Adm. Case No. 2984 August 31, 2007
RODOLFO M. BERNARDO, Complainant,
vs.
ATTY. ISMAEL F. MEJIA, Respondent.
PINEDAPCGRNMAN
RESOLUTION
NACHURA, J.:
Before the Court is a petition for review of Administrative Case No. 2984
with plea for reinstatement in the practice of law filed by Ismael F. Mejia
(Mejia) who is already seventy-one years old and barred from the
practice of law for fifteen years.
The antecedent facts that led to Mejias disbarment are as follows.
On January 23, 1987, Rodolfo M. Bernardo, Jr. accused his retained
attorney, Ismael F. Mejia, of the following administrative offenses:
1) misappropriating and converting to his personal use:
a) part of the sum of P27,710.00 entrusted to him for payment of real
estate taxes on property belonging to Bernardo, situated in a subdivision
known as Valle Verde I; and
b) part of another sum of P40,000.00 entrusted to him for payment of
taxes and expenses in connection with the registration of title of Bernardo
to another property in a subdivision known as Valle Verde V;
2) falsification of certain documents, to wit:
a) a special power of attorney dated March 16, 1985, purportedly
executed in his favor by Bernardo (Annex P, par. 51, complainants
affidavit dates October 4, 1989);
b) a deed of sale dated October 22, 1982 (Annex O, par. 48, id.); and
c) a deed of assignment purportedly executed by the spouses Tomas
and Remedios Pastor, in Bernardos favor (Annex Q, par. 52, id.);
3) issuing a check, knowing that he was without funds in the bank, in
payment of a loan obtained from Bernardo in the amount of P50,000.00,
and thereafter, replacing said check with others known also to be
insufficiently funded.1
On July 29, 1992, the Supreme Court En Banc rendered a Decision Per
Curiam, the dispositive portion of which reads:
WHEREFORE, the Court DECLARES the [sic] respondent, Atty. Ismael
F. Mejia, guilty of all the charges against him and hereby imposes on him
the penalty of DISBARMENT. Pending finality of this judgment, and
effective immediately, Atty. Ismael F. Mejia is hereby SUSPENDED from
the practice of law. Let a copy of this Decision be spread in his record in
the Bar Confidants Office, and notice thereof furnished the Integrated
Bar of the Philippines, as well as the Court Administrator who is
DIRECTED to inform all the Courts concerned of this Decision.
SO ORDERED.
On June 1, 1999, Mejia filed a Petition praying that he be allowed to
reengage in the practice of law. On July 6, 1999, the Supreme Court En
Banc issued a Resolution denying the petition for reinstatement.
On January 23, 2007, Mejia filed the present petition for review of
Administrative Case No. 2984 with a plea for reinstatement in the
practice of law. No comment or opposition was filed against the petition.2
Whether the applicant shall be reinstated in the Roll of Attorneys rests to
a great extent on the sound discretion of the Court. The action will
depend on whether or not the Court decides that the public interest in
the orderly and impartial administration of justice will continue to be
preserved even with the applicants reentry as a counselor at law. The
applicant must, like a candidate for admission to the bar, satisfy the Court
that he is a person of good moral character, a fit and proper person to
practice law. The Court will take into consideration the applicants
character and standing prior to the disbarment, the nature and character
of the charge/s for which he was disbarred, his conduct subsequent to
the disbarment, and the time that has elapsed between the disbarment
and the application for reinstatement.3
In the petition, Mejia acknowledged his indiscretions in the law
profession.1avvphi1 Fifteen years had already elapsed since Mejias
name was dropped from the Roll of Attorneys. At the age of seventy-one,
he is begging for forgiveness and pleading for reinstatement. According
to him, he has long repented and he has suffered enough. Through his
reinstatement, he wants to leave a legacy to his children and redeem the
indignity that they have suffered due to his disbarment.
Page 22
After his disbarment, he put up the Mejia Law Journal, a publication
containing his religious and social writings. He also organized a religious
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
organization and named it "El Cristo Movement and Crusade on Miracle
of Heart and Mind."
The Court is inclined to grant the present petition. Fifteen years has
passed since Mejia was punished with the severe penalty of disbarment.
Although the Court does not lightly take the bases for Mejias disbarment,
it also cannot close its eyes to the fact that Mejia is already of advanced
years. While the age of the petitioner and the length of time during which
he has endured the ignominy of disbarment are not the sole measure in
allowing a petition for reinstatement, the Court takes cognizance of the
rehabilitation of Mejia. Since his disbarment in 1992, no other
transgression has been attributed to him, and he has shown remorse.
Obviously, he has learned his lesson from this experience, and his
punishment has lasted long enough. Thus, while the Court is ever
mindful of its duty to discipline its erring officers, it also knows how to
show compassion when the penalty imposed has already served its
purpose. After all, penalties, such as disbarment, are imposed not to
punish but to correct offenders.
We reiterate, however, and remind petitioner that the practice of law is a
privilege burdened with conditions. Adherence to the rigid standards of
mental fitness, maintenance of the highest degree of morality and faithful
compliance with the rules of the legal profession are the continuing
requirements for enjoying the privilege to practice law.4
WHEREFORE, in view of the foregoing, the petition for reinstatement in
the Roll of Attorneys by Ismael F. Mejia is hereby GRANTED.
SO ORDERED.
A.C. No. 6697 July 25, 2006
ZOILO ANTONIO VELEZ, complainant,
vs.
ATTY. LEONARD S. DE VERA, respondent.
x-------------------------x
Bar Matter No. 1227 July 25, 2006
RE: OATH-TAKING OF ATTY. LEONARD S. DE VERA, INCOMING
PRESIDENT OF THE INTEGRATED BAR OF THE PHILIPPINES.
x-------------------------x
A.M. No. 05-5-15-SC July 25, 2006
IN THE MATTER OF THE REMOVAL OF ATTY. LEONARD S. DE
VERA FROM THE IBP BOARD OF GOVERNORS AS EXECUTIVE
VICE PRESIDENT AND GOVERNOR.
IN THE MATTER OF THE LETTER-COMPLAINT OF ATTY. LEONARD
S. DE VERA DATED MAY 18, 2005 TO FORTHWITH
DENY/DISAPPROVE THE IBP RESOLUTION UNJUSTLY,
ILLEGALLY, ARBITRARILY, AND ABRUPTLY REMOVING HIM
FROM THE BOARD OF GOVERNORS OF THE IBP FOR ABSOLUTE
LACK OF BASIS AND FOR FLAGRANT DENIAL OF DUE PROCESS.
DECISION
Per Curiam:
Before Us are three consolidated cases revolving around Integrated Bar
of the Philippines (IBP) Governor and Executive Vice-President (EVP)
Atty. Leonard de Vera. The first pertains to a disbarment case
questioning Atty. de Vera's moral fitness to remain as a member of the
Philippine Bar, the second refers to Atty. de Vera's letter-request to
schedule his oath taking as IBP National President, and the third case
concerns the validity of his removal as Governor and EVP of the IBP by
the IBP Board. The resolution of these cases will determine the national
presidency of the IBP for the term 2005-2007.
A.C. No. 6697
The Office of the Bar Confidant, which this Court tasked to make an
investigation, report and recommendation on subject case,1 summarized
the antecedents thereof as follows:
In a Complaint dated 11 April 2005, complainant Zoilo Antonio Velez
moved for the suspension and/or disbarment of respondent Atty.
Leonard de Vera based on the following grounds:
1) respondent's alleged misrepresentation in concealing the suspension
order rendered against him by the State Bar of California; and
PINEDAPCGRNMAN
2) respondent's alleged violation of the so-called "rotation rule"
enunciated in Administrative Matter No. 491 dated 06 October 1989 (in
the Matter: 1989 IBP Elections).
Complainant averred that the respondent, in appropriating for his own
benefit funds due his client, was found to have performed an act
constituting moral turpitude by the Hearing Referee Bill Dozier, Hearing
Department San Francisco, State Bar of California in Administrative
Case No. 86-0-18429. Complainant alleged that the respondent was
then forced to resign or surrender his license to practice law in the said
state in order to evade the recommended three (3) year suspension.
Complainant asserted that the respondent lacks the moral competence
necessary to lead the country's most noble profession.
Complainant, likewise, contended that the respondent violated the so-
called "rotation rule" provided for in Administrative Matter No. 491 when
he transferred to IBP Agusan del Sur Chapter. He claimed that the
respondent failed to meet the requirements outlined in the IBP By-Laws
pertaining to transfer of Chapter Membership. He surmised that the
respondent's transfer was intended only for the purpose of becoming the
next IBP National President. Complainant prayed that the respondent be
enjoined from assuming office as IBP National President.
Meanwhile, in his Comment dated 2 May 2005, respondent stated that
the issues raised in above-mentioned Complaint were the very issues
raised in an earlier administrative case filed by the same complainant
against him. In fact, according to him, the said issues were already
extensively discussed and categorically ruled upon by this Court in its
Decision dated 11 December 2005 in Administrative Case No. 6052 (In
Re: Petition to Disqualify Atty. Leonard De Vera). Respondent prayed
that the instant administrative complaint be dismissed following the
principle of res judicata.
On 15 June 2005, both parties appeared before the Office of the Bar
Confidant for presentation of evidence in support of their respective
allegations.
Subsequently, in a Memorandum dated 20 June 2005, complainant
maintained that there is substantial evidence showing respondent's
moral baseness, vileness and depravity, which could be used as a basis
for his disbarment. Complainant stressed that the respondent never
denied that he used his client's money. Complainant argued that the
respondent failed to present evidence that the Supreme Court of
California accepted the latter's resignation and even if such was
accepted, complainant posited that this should not absolve the
respondent from liability.
Moreover, complainant added that the principle of res judicata would not
apply in the case at bar. He asserted that the first administrative case
filed against the respondent was one for his disqualification. x x x.
Bar Matter No. 1227
A.M. No. 05-5-15-SC
As earlier adverted to, Bar Matter No. 1227 refers to Atty. de Vera's letter-
request to this Court to schedule his oath taking as IBP National
President. A.M. No. 05-5-15-SC, on the other hand, is a letter-report
dated 19 May 2005 of IBP National President Jose Anselmo I. Cadiz (IBP
President Cadiz) furnishing this Court with the IBP's Resolution, dated
13 May 2005, removing Atty. De Vera as member of the IBP Board and
as IBP EVP, for committing acts inimical to the IBP Board and the IBP in
general.2
The controversy in Bar Matter No. 1227 and A.M. No. 05-5-15-SC arose
from the regular meeting of the IBP Board of Governors held on 14
January 2005. In said meeting, by 2/3 vote (6 voting in favor and 2
against), the IBP Board approved the withdrawal of the Petition filed
before this Court docketed as "Integrated Bar of the Philippines, Jose
Anselmo I. Cadiz, et al. vs. Senate of the Philippines, et al. Petition for
Certiorari and Prohibition with Prayer for the Issuance of Temporary
Restraining Order or Writ of Preliminary Injunction, SC-R165108." The
Petition was intended to question the legality and/or constitutionality of
Republic Act No. 9227, authorizing the increase in the salaries of judges
Page 23
and justices, and to increase filing fees.3
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
The two IBP Governors who opposed the said Resolution approving the
withdrawal of the above-described Petition were herein respondent
Governor and EVP de Vera and Governor Carlos L. Valdez.4
On 19 January 2005, IBP President Cadiz informed this Court of the
decision taken by the IBP Board to withdraw the afore-mentioned
Petition. Attached to his letter was a copy of the IBP Board's 14 January
2005 Resolution.5
On 15 April 2005, Bar Matter No. 1227, pertaining to Atty. de Vera's
request for oathtaking as National President, was filed. The same was
subsequently consolidated with A.C. No. 6697, the disbarment case filed
against Atty. de Vera.6
On 22 April 2005, a plenary session was held at the 10th National IBP
Convention at the CAP-Camp John Hay Convention Center, Baguio City.
It was at this forum where Atty. de Vera allegedly made some untruthful
statements, innuendos and blatant lies in connection with the IBP
Board's Resolution to withdraw the Petition questioning the legality of
Republic Act No. 9227.7
On 10 May 2005, this Court issued a Temporary Restraining Order
(TRO) enjoining Atty. de Vera from assuming office as IBP National
President.8
On 12 May 2005, IBP Gov. Romulo A. Rivera wrote IBP National
President Cadiz a letter wherein he prayed for the removal of Atty. de
Vera as member of the IBP Board for having committed acts which were
inimical to the IBP Board and the IBP.9
On 13 May 2005, in the 20th Regular Meeting of the Board held at the
Waterfront Hotel, Cebu City, the IBP Board, by 2/3 vote, resolved to
remove Atty. de Vera as member of the IBP Board of Governors and as
IBP Executive Vice President.10 Quoted hereunder is the dispositive
portion of said Resolution:
NOW THEREFORE, BE IT RESOLVED, AS IT IS HEREBY
RESOLVED, that Governor Leonard S. de Vera is REMOVED as a
member of the IBP Board of Governors and Executive Vice President for
committing acts inimical to the IBP Board of Governors and the IBP, to
wit:
1. For making untruthful statements, innuendos and blatant lies in public
about the Supreme Court and members of the IBP Board of Governors,
during the Plenary Session of the IBP 10th National Convention of
Lawyers, held at CAP-Camp John Hay Convention Center on 22 April
2005, making it appear that the decision of the IBP Board of Governors
to withdraw the PETITION docketed as "Integrated Bar of the
Philippines, Jose Anselmo I. Cadiz, et al. vs. The Senate of the
Philippines, et al., Petition for Certiorari and Prohibition With Prayer for
the Issuance of A Temporary Restraining Order or Writ of Preliminary
Injunction, S.C.-R. 165108", was due to influence and pressure from the
Supreme Court of the Philippines;
2. For making said untruthful statements, innuendos and blatant lies that
brought the IBP Board of Governors and the IBP as a whole in public
contempt and disrepute;
3. For violating Canon 11 of the Code of Professional Responsibility for
Lawyers which mandates that "A lawyer shall observe and maintain the
respect due to the courts and to judicial officers and should insist on
similar conduct by others", by making untruthful statements, innuendos
and blatant lies during the Plenary Session of the IBP 10th National
Convention of Lawyers in Baguio City;
4. For instigating and provoking some IBP chapters to embarrass and
humiliate the IBP Board of Governors in order to coerce and compel the
latter to pursue the aforesaid PETITION;
5. For falsely accusing the IBP National President, Jose Anselmo I.
Cadiz, during the Plenary Session of the 10th National Convention in
Baguio City of withholding from him a copy of Supreme Court Resolution,
dated 25 January 2005, granting the withdrawal of the PETITION,
thereby creating the wrong impression that the IBP National President
deliberately prevented him from taking the appropriate remedies with
respect thereto, thus compromising the reputation and integrity of the
IBP National President and the IBP as a whole.11
PINEDAPCGRNMAN
On 18 May 2005, Atty. de Vera aired his sentiments to this Court by
writing the then Hon. Chief Justice Hilario G. Davide, Jr. a letter
captioned as "Urgent Plea to Correct a Glaring Injustice of the IBP Board
of Governors; Vehement Protest to the Board Resolution Abruptly
Removing Atty. Leonard de Vera from the Board of Governors in Patent
Violation of Due Process; Petition to Deny/Disapprove the Completely
Unjustified and Highly Arbitrary Resolution Precipitately Ousting Atty. de
Vera from the Board of Governors in Less Than Twenty Four (24) Hours
from Notice and Judgment Without Formal Investigation."12
In the said letter, Atty. de Vera strongly and categorically denied having
committed acts inimical to the IBP and its Board. He alleged that on the
basis of an unverified letter-complaint filed by IBP Governor Rivera, the
IBP Board voted to expel him posthaste, without just cause and in
complete disregard of even the minimum standards of due process.
Pertinent portions of his letter read:
It is evident that the Board of Governors has committed a grave and
serious injustice against me especially when, as the incumbent
Executive Vice President of the IBP, I am scheduled to assume my
position as National President of the IBP on July 1, 2005. x x x
I was denied the very basic rights of due process recognized by the
Supreme Court even in administrative cases:
1. The denial of the right to answer the charges formally or in writing. The
complaint against me was in writing.
2. The denial of the right to answer the charges within a reasonable
period of time after receipt of the complaint.
3. The denial of the right to a fair hearing.
4. The denial of the right to confront the accuser and the witnesses
against me. I challenged Gov. Rivera to testify under oath so I could
question him. He refused. I offered to testify under oath so I could be
questioned. My request was denied.
5. The denial of my right to present witnesses on my behalf.
6. The denial of my right to an impartial judge. Governor Rivera was my
accuser, prosecutor, and judge all at the same time.
7. Gov. Rivera's prejudgment of my case becomes even more evident
because when his motion to expel me was lost in a 5-3 votes (due to his
inhibition to vote), Gov. Rivera asked for another round of voting so he
can vote to support his own complaint and motion to expel me.13
(Emphasis and underscoring in original.)
On 27 May 2005, the IBP Board responded to the 18 May 2005 letter of
Atty. de Vera.14 In their Reply, the IBP Board explained to this Court that
their decision to remove Atty. de Vera was based on valid grounds and
was intended to protect itself from a recalcitrant member. Among the
grounds cited and elucidated by the IBP Board were the following:
(i) Atty. de Vera engaged himself in a negative media campaign and
solicited resolutions from IBP Chapters to condemn the IBP Board of
Governors for its decision to withdraw the Petition, all with the end in
view of compelling or coercing the IBP Board of Governors to reconsider
the decision to withdraw the Petition.
(ii) Atty. de Vera embarrassed, humiliated and maligned the IBP Board
of Governors and the IBP National President in public or during the
Plenary Session at the 10th National Convention of Lawyers.
(iii) Rather than pacify the already agitated 'solicited' speakers (at the
plenary session), Atty. de Vera "fanned the fire", so to speak, and went
to the extent of making untruthful statements, innuendos and blatant lies
about the Supreme Court and some members of the IBP Board of
Governors. He deliberately and intentionally did so to provoke the
members of the IBP Board of Governors to engage him in an
acrimonious public debate and expose the IBP Board of Governors to
public ridicule.
(iv) Atty. de Vera uttered untruthful statements, innuendos and blatant
lies, e.g., that some of the members of the IBP Board of Governors voted
in favor of the withdrawal of the petition (without mentioning names)
because "nakakahiya kasi sa Supreme Court, nakakaawa kasi ang
Supreme Court, kasi may mga kaibigan tayo sa Court." He made it
Page 24
appear that the IBP Board of Governors approved the resolution,
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
withdrawing the petition, due to "influence" or "pressure" from the
Supreme Court.15
The IBP Board explained that Atty. de Vera's actuation during the
Plenary Session was "the last straw that broke the camel's back." He
committed acts inimical to the interest of the IBP Board and the IBP;
hence, the IBP Board decided to remove him.
On 3 June 2005, Atty. de Vera furnished the Court with copies of
resolutions and a position paper coming from various IBP Chapters all
condemning his expulsion from the IBP Board and as IBP EVP.16
On 15 June 2005, IBP President Cadiz informed Chief Justice Davide
that in a special meeting of the IBP Board held at the EDSA Shangri-la
Plaza on 13 June 2005, the IBP Board took note of the vacancy in the
position of the IBP EVP brought about by Atty. de Vera's removal. In his
stead, IBP Governor Pura Angelica Y. Santiago was formally elected and
declared as IBP EVP.17
On 17 June 2005, Atty. de Vera protested against the election of Atty.
Santiago.18 On 20 June 2005, Atty. Santiago voluntarily relinquished the
EVP position through a letter addressed to the IBP Board.19 Thus, on
25 June 2005, during its last regular meeting, the IBP Board elected a
new EVP in the person of IBP Governor Jose Vicente B. Salazar to
replace Atty. Santiago.
On 28 June 2005, IBP National President Cadiz, through a letter
addressed to Chief Justice Davide, reported to this Court Atty. Salazar's
election.20 IBP National President Cadiz also requested, among other
things, that Atty. Salazar's election be approved and that he be allowed
to assume as National President in the event that Atty. de Vera is
disbarred or suspended from the practice of law or should his removal
from the 2003-2005 Board of Governors and as EVP is approved by this
Court.21 Also on 28 June 2005, Atty. de Vera protested the election of
Atty. Salazar.22
In his Extended Comment23 dated 25 July 2005, Atty. de Vera
maintained that there was absolutely no factual or legal basis to sustain
the motion to remove him from the IBP Board because he violated no
law. He argued that if the basis for his removal as EVP was based on
the same grounds as his removal from the IBP Board, then his removal
as EVP was likewise executed without due notice and without the least
compliance with the minimum standards of due process of law.
Atty. de Vera strongly averred that, contrary to the utterly false and
malicious charges filed against him, the speakers at the Plenary Session
of the Baguio Convention, although undeniably impassioned and
articulate, were respectful in their language and exhortations, not once
undermining the stature of the IBP in general and the IBP Board of
Governors in particular. He posited that speaking in disagreement with
the Resolution of the Board during the Convention's Plenary Session is
not a valid cause to remove or expel a duly-elected member of the IBP
Board of Governors; and the decision to remove him only shows that the
right to freedom of speech or the right to dissent is not recognized by the
incumbent IBP Board.
Anent the charges that he accused the National President of withholding
a copy of this Court's Resolution granting the withdrawal of the Petition
questioning the legality of Republic Act No. 9227, Atty. de Vera avowed
that he made no such remarks. As regards the election of a new IBP
EVP, Atty. de Vera contended that the said election was illegal as it was
contrary to the provisions of the IBP By-Laws concerning national
officers, to wit:
Section. 49. Term of office. - The President and the Executive Vice
President shall hold office for a term of two years from July 1 following
their election until 30 June of their second year in office and until their
successors shall have been duly chosen and qualified.
In the event the President is absent or unable to act, his functions and
duties shall be performed by the Executive Vice President, and in the
event of death, resignation, or removal of the President, the Executive
Vice President shall serve as Acting President for the unexpired portion
of the term. In the event of death, resignation, removal or disability of
both the President and the Executive Vice President, the Board of
PINEDAPCGRNMAN
Governors shall elect an Acting President to hold office for the unexpired
portion of the term or during the period of disability.
Unless otherwise provided in these By-Laws, all other officers and
employees appointed by the President with the consent of the Board
shall hold office at the pleasure of the Board or for such term as the
Board may fix.24
To bolster his position, Atty. de Vera stressed that when both the
President and the EVP die, resign, are removed, or are disabled, the IBP
By-Laws only provides for the election of an Acting President and that no
mention for an election for EVP was made. Thus, when such election for
EVP occurs, such is contrary to the express provision of the IBP By-
Laws.
Atty. de Vera also argued that even if he were validly removed as IBP
EVP, his replacement should come from Eastern Mindanao and not from
any other region, due to the Rotation Rule embodied in par. 2, Section
47, Article VII of the IBP By-Laws.
In response to Atty. de Vera's averments, the 2003-2005 IBP Board,
through its counsel, submitted a Reply dated 27 January 2006 and
clarified as follows:
(i) The IBP Board of Governors is vested with sufficient power and
authority to protect itself from an intractable member by virtue of Article
VI, Section 44 of the IBP By-Laws;
(ii) Atty. de Vera was removed as a member of the IBP Board and as IBP
EVP not because of his disagreement with the IBP Board's position but
because of the various acts that he committed which the IBP Board
determined to be inimical to the IBP Board and the IBP as a whole;
(iii) Atty. de Vera cannot exculpate himself from liability by invoking his
constitutional right to Free Speech because, as a member of the Bar, it
is his sworn duty to observe and maintain the respect due to the courts
and to judicial officers and to insist on similar conduct by others;
(iv) The IBP Board, in effecting the removal of Atty. de Vera, observed
the fundamental principles of due process. As the records would bear,
Atty. de Vera was duly notified of the Regular Meeting of the IBP Board
held on 13 May 2004; was furnished a copy of Governor Rivera's Letter-
Complaint the day before the said meeting; was furnished a copy of the
said Meeting's Agenda; and was allowed to personally defend himself
and his accuser, Gov. Rivera;
(v) Atty. de Vera was validly removed because the required number of
votes under Section 44 of the IBP By-Laws to remove Atty. de Vera as a
member of the IBP Board and as IBP EVP was duly complied with;
(vi) Atty. de Vera's replacement as IBP EVP need not come from Eastern
Mindanao Region because: (a) the rotation rule under Article VII, Section
47, par. 2 of the IBP By-Laws had already been complied with when Atty.
de Vera, who hails from Eastern Mindanao, was elected IBP EVP; and
(b) the rotation rule need not be enforced if the same will not be
practicable, possible, feasible, doable or viable; and, finally, that
(vii) Atty. Salazar was validly elected as IBP EVP and, thus, should now
be allowed to take his oath as IBP National President.25
The Court's Ruling
AC No. 6697
In his Memorandum26 dated 20 June 2005, complainant tendered the
following issues for the consideration of the Court:
I.
WHETHER OR NOT RESPONDENT ATTORNEY LEONARD S.
DEVERA (sic) COMMITED MALPRACTICE WHICH AMOUNTED TO
MORAL T[U]RPITUDE IN THE STATE BAR OF CALIFORNIA AND IN
THE PHILIPPINES, IN THE COURSE OF HIS PRACTICE OF LAW.
II.
WHETHER OR NOT THE OATH OF OFFICE AS LAWYER IS
ATTACHED TO THE PERSON OF ATTORNEY LEONARD S. DEVERA
(sic) WHEREVER HE MAY GO AND NOT NECESSARILY BOUND BY
THE TERRITORIAL JURISDICTION OF THE PHILIPPINES.
III.
WHETHER OR NOT THERE IS SUBSTANTIAL EVIDENCE TO PROVE
Page 25
THE MORAL T[U]RPITUDE, AS BASIS FOR DISBARMENT OF
RESPONDENT IN AN ADMINISTRATIVE PROCEEDING.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
IV.
WHETHER OR NOT RES JUDICATA APPLIES IN THIS CASE, DUE
TO ADMIN. CASE NO. [6052]27
The disposition of the first three related issues hinges on the resolution
of the fourth issue. Consequently, we will start with the last issue.
A.C. No. 6052 is not a bar to the filing of the present administrative case.
In disposing of the question of res judicata, the Bar Confidant opined:
To reiterate, the instant case for suspension and/or disbarment against
respondent Leonard De Vera is grounded on the following:
1) respondent's alleged misrepresentation in concealing the suspension
order rendered against him by the State Bar in California; and
2) respondent's alleged violation of the so-called "rotation rule"
enunciated in Administrative Matter No. 491 dated 06 October 1989 (In
the Matter: 1989 IBP Elections).
It appears that the complainant already raised the said issues in an
earlier administrative case against the respondent. Verily, these issues
were already argued upon by the parties in their respective pleadings,
and discussed and ruled upon by this Court in its Decision dated 11
December 2003 in Administrative Matter No. 6052 (In Re: Petition to
Disqualify Atty. Leonard de Vera).
As such, with respect to the first issue, this Court held that:
"As for the administrative complaint filed against him by one of his clients
when he was practicing law in California, which in turn compelled him to
surrender his California license to practice law, he maintains that it
cannot serve as basis for determining his moral qualification (or lack of
it) to run for the position he is aspiring for. He explains that there is as
yet no final judgment finding him guilty of the administrative charge, as
the records relied upon by the petitioners are mere preliminary findings
of a hearing referee which are recommendatory findings of an IBP
Commissioner on Bar Discipline which are subject to the review of and
the final decision of the Supreme Court. He also stresses that the
complainant in the California administrative case has retracted the
accusation that he misappropriated the complainant's money, but
unfortunately the retraction was not considered by the investigating
officer. xxx"
"On the administrative complaint that was filed against respondent De
Vera while he was still practicing law in California, he explained that no
final judgment was rendered by the California Supreme Court finding him
guilty of the charge. He surrendered his license to protest the
discrimination he suffered at the hands of the investigator and he found
it impractical to pursue the case to the end. We find these explanations
satisfactory in the absence of contrary proof. It is a basic rule on evidence
that he who alleges a fact has the burden to prove the same. In this case,
the petitioners have not shown how the administrative complaint affects
respondent De Vera's moral fitness to run for governor.
On the other hand, as regards the second issue:
"Petitioners contend that respondent de Vera is disqualified for the post
because he is not really from Eastern Mindanao. His place of residence
is in Paraaque and he was originally a member of the PPLM IBP
Chapter. He only changed his IBP Chapter membership to pave the way
for his ultimate goal of attaining the highest IBP post, which is the
national presidency. Petitioners aver that in changing his IBP
membership, respondent De Vera violated the domicile rule.
The contention has no merit. Under the last paragraph of Section 19,
Article II, a lawyer included in the Roll of Attorneys of the Supreme Court
can register with the particular IBP Chapter of his preference or choice,
thus:
xxx
It is clearly stated in the aforequoted section of the By-Laws that it is not
automatic that a lawyer will become a member of the chapter where his
place of residence or work is located. He has the discretion to choose
the particular chapter where he wishes to gain membership. Only when
he does not register his preference that he will become a member of the
Chapter of the place where he resides or maintains office. The only
proscription in registering one's preference is that a lawyer cannot be a
member of more than one chapter at the same time.
PINEDAPCGRNMAN
The same is provided in Section 29-2 of the IBP By-Laws. In fact, under
this Section, transfer of IBP membership is allowed as long as the lawyer
complies with the conditions set forth therein, thus:
xxx
The only condition required under the foregoing rule is that the transfer
must be made not less than three months prior to the election of officers
in the chapter to which the lawyer wishes to transfer.
In the case at bar, respondent De Vera requested the transfer of his IBP
membership to Agusan del Sur on 1 August 2001. One month thereafter,
IBP National Secretary Jaime M. Vibar wrote a letter addressed to Atty.
Amador Z. Tolentino, Jr., Secretary of IBP PPLM Chapter and Atty.
Lyndon J. Romero, Secretary of IBP Agusan del Sur Chapter, informing
them of respondent de Vera's transfer and advising them to make the
necessary notation in their respective records. This letter is a substantial
compliance with the certification mentioned in Section 29-2 as
aforequoted. Note that de Vera's transfer was made effective sometime
between 1 August 2001 and 3 September 2001. On 27 February 2003,
the elections of the IBP Chapter Officers were simultaneously held all
over the Philippines, as mandated by Section 29.a of the IBP By-Laws
which provides that elections of Chapter Officers and Directors shall be
held on the last Saturday of February of every other year. Between 3
September 2001 and 27 February 2003, seventeen months had elapsed.
This makes respondent de Vera's transfer valid as it was done more than
three months ahead of the chapter elections held on 27 February 2003.
In the case of Romulo G. Dinsay vs. Atty. Leopoldo D. Cioco
(Administrative Case No. 2995, 27 November 1996), this Court declared
that:
"The doctrine of res judicata applies only to judicial or quasi-judicial
proceedings and not to the exercise of the [Court's] administrative
powers."
In the said case, respondent Clerk of Court Cioco was dismissed from
service for grave misconduct highly prejudicial to the service for
surreptitiously substituting the bid price in a Certificate of Sale from
P3,263,182.67 to only P730,000.00. Thereafter a complaint for
disbarment was filed against the respondent on the basis of the same
incident. Respondent, interposing res judicata, argued that he may no
longer be charged on the basis of the same incident. This Court held that
while the respondent is in effect being indicted twice for the same
misconduct, this does not amount to double jeopardy as both
proceedings are admittedly administrative in nature. This Court qualified
that, in the first case, the respondent was proceeded against as an erring
court personnel under the Court's supervisory power over courts while,
in the second case, he was disciplined as a lawyer under the Court's
plenary authority over membersof the legal profession.
In subsequent decisions of this Court, however, it appears that res
judicata still applies in administrative cases. Thus, in the case of Atty.
Eduardo C. De Vera vs. Judge William Layague (Administrastive Matter
No. RTJ-93-986), this Court ruled that:
"While double jeopardy does not lie in administrative cases, it would be
contrary to equity and substantial justice to penalize respondent judge a
second time for an act which he had already answered for.";
Likewise, in the recent case of Executive Judge Henry B. Basilia vs.
Judge Amado L. Becamon, Lolita Delos Reyes and Eddie Delos Reyes
(Administrative Matter No. MTJ-02-1404, 14 December 2004), this Court
held that:
"Applying the principle of res judicata or bar by prior judgment, the
present administrative case becomes dismissible.
xxx
Under the said doctrine, a matter that has been adjudicated by a court of
competent jurisdiction must be deemed to have been finally and
conclusively settled if it arises in any subsequent litigation between the
same parties and for the same cause. It provides that
[a] final judgment on the merits rendered by a court of competent
jurisdiction is conclusive as to the rights of the parties and their privies;
Page 26
and constitutes an absolute bar to subsequent actions involving the
same claim, demand, or cause of action. Res judicata is based on the
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
ground that the party to be affected, or some other with whom he is in
privity, has litigated the same matter in the former action in a court of
competent jurisdiction, and should not be permitted to litigate it again.
This principle frees the parties from undergoing all over again the rigors
of unnecessary suits and repetitious trials. At the same time, it prevents
the clogging of court dockets. Equally important, res judicata stabilizes
rights and promotes the rule of law."
In the instant administrative case, it is clear that the issues raised by the
complainant had already been resolved by this Court in an earlier
administrative case. The complainant's contention that the principle ofres
judicata would not apply in the case at bar as the first administrative case
was one for disqualification while the instant administrative complaint is
one for suspension and/or disbarment should be given least credence. It
is worthy to note that while the instant administrative complaint is
denominated as one for suspension and/or disbarment, it prayed neither
the suspension nor the disbarment of the respondent but instead merely
sought to enjoin the respondent from assuming office as IBP National
President.28
Contrary to the findings of the Bar Confidant, Adm. Case No. 6052
entitled, "In Re: Petition to Disqualify Atty. Leonard de Vera, on Legal
and Moral Grounds, From Being Elected IBP Governor for Eastern
Mindanao in the May 31 IBP Election" and promulgated on 11 December
2003 does not constitute a bar to the filing of Adm. Case No. 6697.
Although the parties in the present administrative case and in Adm. Case
No. 6052 are identical, their capacities in these cases and the issues
presented therein are not the same, thereby barring the application ofres
judicata.
In order that the principle of res judicata may be made to apply, four
essential conditions must concur, namely: (1) the judgment sought to bar
the new action must be final; (2) the decision must have been rendered
by a court having jurisdiction over the subject matter and the parties; (3)
the disposition of the case must be a judgment or order on the merits,
and (4) there must be between the first and second action identity of
parties, identity of subject matter, and identity of causes of action.29 In
the absence of any one of these elements, Atty. de Vera cannot argue
res judicata in his favor.
It is noteworthy that the two administrative cases involve different subject
matters and causes of action. In Adm. Case No. 6052, the subject matter
was the qualification of Atty. de Vera to run as a candidate for the position
of IBP Governor for Eastern Mindanao. In the present administrative
complaint, the subject matter is his privilege to practice law. In the first
administrative case, complainants' cause of action was Atty. de Vera's
alleged violation or circumvention of the IBP By-laws. In the present
administrative case, the primary cause of action is Atty. de Vera's alleged
violation of lawyer's oath and the Code of Professional Responsibility.
Finally, the two administrative cases do not seek the same relief. In the
first case, the complainants sought to prevent Atty. de Vera from
assuming his post as IBP Governor for Eastern Mindanao. In the present
case, as clarified by complainant in his Memorandum, what is being
principally sought is Atty. de Vera's suspension or disbarment.
The distinctions between the two cases are far from trivial. The previous
case was resolved on the basis of the parties' rights and obligations
under the IBP By-laws. We held therein that Atty. de Vera cannot be
disqualified from running as Regional Governor as there is nothing in the
present IBP By-laws that sanctions the disqualification of candidates for
IBP governors. Consequently, we stressed that the petition had no firm
ground to stand on. Likewise, we held that the complainants therein were
not the proper parties to bring the suit as the IBP By-laws prescribes that
only nominees - which the complainants were not - can file with the IBP
President a written protest against the candidate. The Court's statement,
therefore, that Atty. de Vera cannot be disqualified on the ground that he
was not morally fit was mere obiter dictum. Precisely, the IBP By-laws
do not allow for pre-election disqualification proceedings; hence, Atty. de
Vera cannot be disqualified on the basis of the administrative findings of
a hearing officer of the State Bar of California suspending him from the
practice of law for three years. We held in that case that
PINEDAPCGRNMAN
There is nothing in the By-Laws which explicitly provides that one must
be morally fit before he can run for IBP governorship. For one, this is so
because the determination of moral fitness of a candidate lies in the
individual judgment of the members of the House of Delegates. Indeed,
based on each member's standard of morality, he is free to nominate and
elect any member, so long as the latter possesses the basic
requirements under the law. For another, basically the disqualification of
a candidate involving lack of moral fitness should emanate from his
disbarment or suspension from the practice of law by this Court, or
conviction by final judgment of an offense which involves moral
turpitude.30
What this simply means is that absent a final judgment by the Supreme
Court in a proper case declaring otherwise, every lawyer aspiring to hold
the position of IBP Regional Director is presumed morally fit. Any person
who begs to disagree will not be able to find a receptive audience in the
IBP through a petition for disqualification but must first file the necessary
disbarment or suspension proceeding against the lawyer concerned.
And this is precisely what complainant has chosen to do in the instant
case. As his petition is sufficient in form and substance, we have given it
due course pursuant to Rule 138 of the Rules of Court. And, considering
that this case is not barred by the prior judgment in Adm. Case No. 6052,
the only issue left for consideration is whether or not Atty. de Vera can
be suspended or disbarred under the facts of the case and the evidence
submitted by complainant.
The recommendation of the hearing officer of the State Bar of California,
standing alone, is not proof of malpractice.
In the case of the Suspension From The Practice of Law In The Territory
of Guam of Atty. Leon G. Maquera,31we were confronted with the
question of whether or not a member of the Philippine Bar, who is
concomitantly an attorney in a foreign jurisdiction and who was
suspended from the practice of law in said foreign jurisdiction, can be
sanctioned as member of the Philippine Bar for the same infraction
committed in the foreign jurisdiction.
We take the issue in Atty. Maquera one notch higher in the case of Atty.
de Vera who was admitted to the practice of law in a foreign jurisdiction
(State Bar of California, U.S.A.) and against whom charges were filed in
connection with his practice in said jurisdiction. However, unlike the case
of Atty. Maquera, no final judgment for suspension or disbarment was
meted against Atty. de Vera despite a recommendation of suspension of
three years as he surrendered his license to practice law before his case
could be taken up by the Supreme Court of California.
In Maquera, we emphasized that the judgment of suspension against a
Filipino lawyer in a foreign jurisdiction does not automatically result in his
suspension or disbarment in the Philippines as the acts giving rise to his
suspension are not grounds for disbarment and suspension in this
jurisdiction. Judgment of suspension against a Filipino lawyer may
transmute into a similar judgment of suspension in the Philippines only if
the basis of the foreign court's action includes any of the grounds for
disbarment or suspension in this jurisdiction. We likewise held that the
judgment of the foreign court merely constitutes prima facie evidence of
unethical acts as lawyer.
The Maquera ruling is consistent with Rule 39, Section 48, of the Rules
of Court which provides:
Sec. 48. Effect of foreign judgments or final orders. - The effect of a
judgment or final order of a tribunal of a foreign country, having
jurisdiction to render the judgment or final order is as follows:
xxxx
(b) In case of a judgment or final order against a person, the judgment
or final order is presumptive evidence of a right as between the parties
and their successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled by evidence
of a want of jurisdiction, want of notice to the party, collusion, fraud, or
clear mistake of law or fact.
In Philippine Aluminum Wheels, Inc. v. Fasgi Enterprises, Inc.,32 we
Page 27
explained that "[a] foreign judgment is presumed to be valid and binding
in the country from which it comes, until a contrary showing, on the basis
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
of a presumption of regularity of proceedings and the giving of due notice
in the foreign forum."
In herein case, considering that there is technically no foreign judgment
to speak of, the recommendation by the hearing officer of the State Bar
of California does not constitute prima facie evidence of unethical
behavior by Atty. de Vera. Complainant must prove by substantial
evidence the facts upon which the recommendation by the hearing
officer was based. If he is successful in this, he must then prove that
these acts are likewise unethical under Philippine law.
There is substantial evidence of malpractice on the part of Atty. de Vera
independent of the recommendation of suspension by the hearing officer
of the State Bar of California
Section 27 of Rule 138 of our Rules of Court states:
SEC. 27. Disbarment or suspension of attorneys by Supreme Court;
grounds therefor. A member of the bar may be disbarred or suspended
from his office as attorney by the Supreme Court for any deceit,
malpractice, or other gross misconduct in such office, grossly immoral
conduct, or by reason of his conviction of a crime involving moral
turpitude, or for any violation of the oath which he is required to take
before admission to practice, or for a wilful disobedience of any lawful
order of a superior court, or for corruptly or wilfully appearing as an
attorney for a party to a case without authority so to do. The practice of
soliciting cases at law for the purpose of gain, either personally or
through paid agents or brokers, constitutes malpractice.
The disbarment or suspension of a member of the Philippine Bar by a
competent court or other disciplinary agency in a foreign jurisdiction
where he has also been admitted as an attorney is a ground for his
disbarment or suspension if the basis of such action includes any of the
acts hereinabove enumerated.
The judgment, resolution or order of the foreign court or disciplinary
agency shall be prima facie evidence of the ground for disbarment or
suspension.33
Disciplinary action against a lawyer is intended to protect the court and
the public from the misconduct of officers of the court and to protect the
administration of justice by requiring that those who exercise this
important function shall be competent, honorable and reliable men in
whom courts and clients may repose confidence.34 The statutory
enunciation of the grounds for disbarment on suspension is not to be
taken as a limitation on the general power of courts to suspend or disbar
a lawyer. The inherent power of the court over its officers cannot be
restricted.35
Malpractice ordinarily refers to any malfeasance or dereliction of duty
committed by a lawyer. Section 27 gives a special and technical meaning
to the term "Malpractice."36 That meaning is in consonance with the
elementary notion that the practice of law is a profession, not a
business.37
Unprofessional conduct in an attorney is that which violates the rules on
ethical code of his profession or which is unbecoming a member of that
profession.38
Now, the undisputed facts:
1. An administrative case against Atty. de Vera was filed before the State
Bar of California, docketed then as Adm. Case No. 86-0-18429. It arose
from an insurance case Atty. de Vera handled involving Julius Willis, III
who figured in an automobile accident in 1986. Atty. de Vera was
authorized by the elder Willis (father of Julius who was given authority
by the son to control the case because the latter was then studying in
San Diego California) for the release of the funds in settlement of the
case. Atty. de Vera received a check in settlement of the case which he
then deposited to his personal account;39
2. The Hearing referee in the said administrative case recommended that
Atty. de Vera be suspended from the practice of law for three years;40
and
3. Atty. de Vera resigned from the California Bar which resignation was
accepted by the Supreme Court of California.41
Atty. de Vera vehemently insists that the foregoing facts do not prove
that he misappropriated his client's funds as the latter's father (the elder
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Willis) gave him authority to use the same and that, unfortunately, the
hearing officer did not consider this explanation notwithstanding the fact
that the elder Willis testified under oath that he "expected de Vera might
use the money for a few days."
By insisting that he was authorized by his client's father and attorney-in-
fact to use the funds, Atty. de Vera has impliedly admitted the use of the
Willis funds for his own personal use.
In fact, Atty. de Vera did not deny complainant's allegation in the latter's
memorandum that he (de Vera) received US$12,000.00 intended for his
client and that he deposited said amount in his personal account and not
in a separate trust account and that, finally, he spent the amount for
personal purposes.42
At this point, it bears stressing that in cases filed before administrative
and quasi-judicial bodies, a fact may be deemed established if it is
supported by substantial evidence or that amount of relevant evidence
which a reasonable mind might accept as adequate to justify a
conclusion.43 It means such evidence which affords a substantial basis
from which the fact in issue can be reasonably inferred.44
Beyond doubt, the unauthorized use by a lawyer of his client's funds is
highly unethical. Canon 16 of the Code of Professional Responsibility is
emphatic about this, thus:
CANON 16. A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND
PROPERTIES OF HIS CLIENT THAT MAY COME TO HIS
POSSESSION.
Rule 16.01. A lawyer shall account for all money or property collected or
received for or from the client.
Rule 16.02. A lawyer shall keep the funds of each client separate and
apart from his own and those of others kept by him.
In Espiritu v. Ulep45 we held that
The relation between attorney and client is highly fiduciary in nature.
Being such, it requires utmost good faith, loyalty, fidelity and
disinterestedness on the part of the attorney. Its fiduciary nature is
intended for the protection of the client.
The Code of Professional Responsibility mandates every lawyer to hold
in trust all money and properties of his client that may come into his
possession. Accordingly, he shall account for all money or property
collected or received for or from the client. Even more specific is the
Canon of Professional Ethics:
The lawyer should refrain from any action whereby for his personal
benefit or gain he abuses or takes advantage of the confidence reposed
in him by his client.
Money of the client or collected for the client or other trust property
coming into the possession of the lawyer should be reported and
accounted for promptly and should not under any circumstances be
commingled with his own or be used by him.
Consequently, a lawyer's failure to return upon demand the funds or
property held by him on behalf of his client gives rise to the presumption
that he has appropriated the same for his own use to the prejudice of,
and in violation of the trust reposed in him by, his client. It is a gross
violation of general morality as well as of professional ethics; it impairs
the public confidence in the legal profession and deserves punishment.
Lawyers who misappropriate the funds entrusted to them are in gross
violation of professional ethics and are guilty of betrayal of public
confidence in the legal profession. Those who are guilty of such infraction
may be disbarred or suspended indefinitely from the practice of law.
(Emphases supplied.)
In herein case, as it is admitted by Atty. de Vera himself that he used his
client's money for personal use, he has unwittingly sealed his own fate
since this admission constitutes more than substantial evidence of
malpractice. Consequently, Atty. de Vera now has the burden of
rebutting the evidence which he himself supplied.
In his defense, Atty. de Vera claims that he was duly authorized by the
elder Willis to use the funds intended for the latter's son. Atty. de Vera
also points out that he had restituted the full amount of US$12,000.00
Page 28
even before the filing of the administrative case against him in the State
Bar of California.46
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Aside from these self-serving statements, however, we cannot find
anywhere in the records of this case proof that indeed Atty. de Vera was
duly authorized to use the funds of his client. In Radjaie v. Atty.
Alovera47 we declared that
When the integrity of a member of the bar is challenged, it is not enough
that he denies the charges against him; he must meet the issue and
overcome the evidence against him. He must show proof that he still
maintains that degree of morality and integrity which at all times is
expected of him.
Atty. de Vera cannot rely on the statement made by the hearing officer
that the elder Willis had indeed testified that he "expected de Vera might
use the money for a few days." As Atty. de Vera had vigorously objected
to the admissibility of the document containing this statement, he is now
estopped from relying thereon. Besides, that the elder Willis "expected
de Vera might use the money for a few days" was not so much an
acknowledgment of consent to the use by Atty. de Vera of his client's
funds as it was an acceptance of the probability that Atty. de Vera might,
indeed, use his client's funds, which by itself did not speak well of the
character of Atty. de Vera or the way such character was perceived.
In the instant case, the act of Atty. de Vera in holding on to his client's
money without the latter's acquiescence is conduct indicative of lack of
integrity and propriety. It is clear that Atty. de Vera, by depositing the
check in his own account and using the same for his own benefit is guilty
of deceit, malpractice, gross misconduct and unethical behavior. He
caused dishonor, not only to himself but to the noble profession to which
he belongs. For, it cannot be denied that the respect of litigants to the
profession is inexorably diminished whenever a member of the
profession betrays their trust and confidence.48 Respondent violated his
oath to conduct himself with all good fidelity to his client.
Nevertheless, we do not agree with complainant's plea to disbar
respondent from the practice of law. The power to disbar must be
exercised with great caution.49 Where any lesser penalty can
accomplish the end desired, disbarment should not be decreed.
In Mortera v. Pagatpatan,50 we imposed upon Atty. Pagatpatan two
years suspension from his practice of law for depositing the funds meant
for his client to his personal account without the latter's knowledge. In
Reyes v. Maglaya;51 Castillo v. Taguines;52 Espiritu v. Atty. Cabredo
IV,53 the respondents were meted one year suspension each for failing
to remit to their clients monies in the amounts of P1,500.00; P500.00,
and P51,161.00, respectively, received by them for their clients without
the latter's permission. In Dumadag v. Atty. Lumaya,54 we indefinitely
suspended respondent for failure to remit to his client the amount of the
measly sum of P4,344.00 representing the amount received pursuant to
a writ of execution. Considering the amount involved here
US$12,000.00, we believe that the penalty of suspension for two (2)
years is appropriate.
Transferring IBP membership to a chapter where the lawyer is not a
resident of is not a ground for his suspension or disbarment
Complainant insists that Atty. de Vera's transfer of membership from the
Pasay, Paraaque, Las Pias and Muntinlupa (PPLM) Chapter to the
Agusan del Sur IBP Chapter is a circumvention of the rotation rule as it
was made for the sole purpose of becoming IBP National President.
Complainant stresses that Atty. de Vera is not a resident of Agusan del
Sur nor does he hold office therein.
In Adm. Case No. 6052, we held that Atty. de Vera's act of transferring
to another IBP Chapter is not a ground for his disqualification for the post
of IBP Governor as the same is allowed under Section 19 of the IBP By-
Laws with the qualification only that the transfer be made not less than
three months immediately preceding any chapter election.
As it was perfectly within Atty. de Vera's right to transfer his membership,
it cannot be said that he is guilty of unethical conduct or behavior. And
while one may incessantly argue that a legal act may not necessarily be
ethical, in herein case, we do not see anything wrong in transferring to
an IBP chapter that -- based on the rotation rule will produce the next
IBP EVP who will automatically succeed to the National Presidency for
the next term. Our Code of Professional Responsibility as well as the
PINEDAPCGRNMAN
Lawyer's Oath do not prohibit nor punish lawyers from aspiring to be IBP
National President and from doing perfectly legal acts in accomplishing
such goal.
Bar Matter No. 1227
Administrative Matter No. 05-5-15-SC
To resolve Bar Matter No. 1227 and Administrative Matter No. 05-5- 15-
SC, the following issues must be addressed:
I. Whether the IBP Board of Governors acted with grave abuse of
discretion in removing Atty. de Vera as Governor and EVP of the IBP on
13 May 2005.
i. Whether the IBP Board of Governors complied with administrative due
process in removing Atty. de Vera.
ii. Whether the IBP removed Atty. De Vera for just and valid cause.
II. Whether Governor Salazar was validly elected as EVP of the IBP on
25 June 2005, and can consequently assume the Presidency of the IBP
for the term 2005-2007.
The IBP Board observed due process in its removal of Atty. de Vera as
IBP Governor
We start the discussion with the veritable fact that the IBP Board is
vested with the power to remove any of its members pursuant to Section
44, Article VI of the IBP By-Laws, which states:
Sec. 44. Removal of members. If the Board of Governors should
determine after proper inquiry that any of its members, elective or
otherwise, has for any reason become unable to perform his duties, the
Board, by resolution of the Majority of the remaining members, may
declare his position vacant, subject to the approval of the Supreme
Court.
Any member of the Board, elective or otherwise, may be removed for
cause, including three consecutive absences from Board meetings
without justifiable excuse, by resolution adopted by two-thirds of the
remaining members of the Board, subject to the approval of the Supreme
Court.
In case of any vacancy in the office of Governor for whatever cause, the
delegates from the region shall by majority vote, elect a successor from
among the members of the Chapter to which the resigned governor is a
member to serve as governor for the unexpired portion of the term.
(Emphasis supplied)
Under the aforementioned section, a member of the IBP Board may be
removed for cause by resolution adopted by two-thirds (2/3) of the
remaining members of the Board, subject to the approval of this Court.
In the main, Atty. de Vera questions his removal from the Board of
Governors on procedural and substantive grounds. He argues that he
was denied "very basic rights of due process recognized by the
Honorable Court even in administrative cases" like the right to answer
formally or in writing and within reasonable time, the right to present
witnesses in his behalf, the right to a fair hearing. Atty. de Vera protests
the fact that he was not able to cross-examine the complainant, IBP Gov.
Romulo H. Rivera (Atty. Rivera) and that Atty. Rivera voted as well for
his expulsion which made him accuser, prosecutor and judge at the
same time. Atty. de Vera emphasized the fact that Atty. Rivera initially
inhibited himself from voting on his own motion. However, when his
inhibition resulted in the defeat of his motion as the necessary 2/3 votes
could not be mustered, Atty. Rivera asked for another round of voting so
he could vote to support his own motion.
The IBP Board counters that since its members were present during the
plenary session, and personally witnessed and heard Atty. de Vera's
actuations, an evidentiary or formal hearing was no longer necessary.
Since they all witnessed and heard Atty. de Vera, it was enough that he
was given an opportunity to refute and answer all the charges imputed
against him. They emphasized that Atty. de Vera was given a copy of
the complaint and that he was present at the Board Meeting on 13 May
2005 wherein the letter-complaint against him was part of the agenda.
Therein, he was given the opportunity to be heard and that, in fact, Atty.
de Vera did argue his case.
Page 29
We are in agreement with the IBP Board.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
First, it needs stressing that the constitutional provision on due process
safeguards life, liberty and property.55 It cannot be said that the position
of EVP of the IBP is property within the constitutional sense especially
since there is no right to security of tenure over said position as, in fact,
all that is required to remove any member of the board of governors for
cause is a resolution adopted by 2/3 of the remaining members of the
board.
Secondly, even if the right of due process could be rightfully invoked, still,
in administrative proceedings, the essence of due process is simply the
opportunity to explain one's side.56 At the outset, it is here emphasized
that the term "due process of law" as used in the Constitution has no
fixed meaning for all purposes due "to the very nature of the doctrine
which, asserting a fundamental principle of justice rather than a specific
rule of law, is not susceptible of more than one general statement."57
The phrase is so elusive of exact apprehension,58 because it depends
on circumstances and varies with the subject matter and the necessities
of the situation.59
Due process of law in administrative cases is not identical with "judicial
process" for a trial in court is not always essential to due process. While
a day in court is a matter of right in judicial proceedings, it is otherwise in
administrative proceedings since they rest upon different principles. The
due process clause guarantees no particular form of procedure and its
requirements are not technical. Thus, in certain proceedings of
administrative character, the right to a notice or hearing are not essential
to due process of law. The constitutional requirement of due process is
met by a fair hearing before a regularly established administrative
agency or tribunal. It is not essential that hearings be had before the
making of a determination if thereafter, there is available trial and tribunal
before which all objections and defenses to the making of such
determination may be raised and considered. One adequate hearing is
all that due process requires. What is required for "hearing" may differ as
the functions of the administrative bodies differ.60
The right to cross-examine is not an indispensable aspect of due
process.61 Nor is an actual hearing always essential62 especially under
the factual milieu of this case where the members of the IBP Board --
upon whose shoulders the determination of the cause for removal of an
IBP governor is placed subject to the approval of the Supreme Court
all witnessed Atty. de Vera's actuations in the IBP National Convention
in question.
It is undisputed that Atty. de Vera received a copy of the complaint
against him and that he was present when the matter was taken up. From
the transcript of the stenographic notes of the 13 May 2005 meeting
wherein Atty. de Vera was removed, it is patent that Atty. de Vera was
given fair opportunity to defend himself against the accusations made by
Atty. Rivera.
Atty. de Vera, however, additionally questions the fact that Atty. Rivera,
who authored the complaint against him, also voted for his expulsion
making him accuser, prosecutor and judge at the same time. Atty. de
Vera likewise laments the fact that Atty. Rivera initially inhibited himself
from voting but when this resulted in the defeat of his motion for lack of
the necessary 2/3 vote, he agreed to another round of voting and that,
this time, he voted in favor of his motion.
For the record, of the nine governors comprising the IBP Board, six voted
for Atty. de Vera's expulsion (including Atty. Rivera) while 3 voted against
it (including Atty. de Vera).
Section 44 (second paragraph) of the IBP By-Laws provides:
Any member of the Board, elective or otherwise, may be removed for
cause, including three consecutive absences from Board meetings
without justifiable excuse, by resolution adopted by two-thirds of
theremaining members of the Board, subject to the approval of the
Supreme Court. (Emphasis supplied.)
Under the rules, a resolution for expulsion of an IBP Governor is done
via a resolution adopted by 2/3 of the remaining members. The phrase
"remaining members" refers to the members exclusive of the
complainant member and the respondent member. The reason therefore
is that such members are interested parties and are thus presumed to
PINEDAPCGRNMAN
be unable to resolve said motion impartially. This being the case, the
votes of Attys. Rivera and de Vera should be stricken-off which means
that only the votes of the seven remaining members are to be counted.
Of the seven remaining members, five voted for expulsion while two
voted against it which still adds up to the 2/3 vote requirement for
expulsion.
The IBP Board removed Atty. de Vera as IBP Governor for just and valid
cause
All the concerned parties to this case agree that what constitutes cause
for the removal of an IBP Governor has not been defined by Section 44
of the IBP By-Laws albeit it includes three consecutive absences from
Board meetings without justifiable excuse. Thus, the IBP Board argues
that it is vested with sufficient power and authority to protect itself from
an intractable member whose removal was caused not by his
disagreement with the IBP Board but due to various acts committed by
him which the IBP Board considered as inimical to the IBP Board in
particular and the IBP in general.
Atty. de Vera, on the other hand, insists that speaking in disagreement
with the Resolution of the Board during the Convention's Plenary
Session is not a valid cause to remove or expel a duly-elected member
of the IBP Board of Governors and the decision to remove him only
shows that the right to freedom of speech or the right to dissent is not
recognized by the IBP Board.
After weighing the arguments of the parties and in keeping with the
fundamental objective of the IBP to discharge its public responsibility
more effectively, we hereby find that Atty. de Vera's removal from the
IBP Board was not capricious or arbitrary.
Indubitably, conflicts and disagreements of varying degrees of intensity,
if not animosity, are inherent in the internal life of an organization, but
especially of the IBP since lawyers are said to disagree before they
agree.
However, the effectiveness of the IBP, like any other organization, is
diluted if the conflicts are brought outside its governing body for then
there would be the impression that the IBP, which speaks through the
Board of Governors, does not and cannot speak for its members in an
authoritative fashion. It would accordingly diminish the IBP's prestige and
repute with the lawyers as well as with the general public.
As a means of self-preservation, internecine conflicts must thus be
adjusted within the governing board itself so as to free it from the
stresses that invariably arise when internal cleavages are made public.
The doctrine of majority rule is almost universally used as a mechanism
for adjusting and resolving conflicts and disagreements within the group
after the members have been given an opportunity to be heard. While it
does not efface conflicts, nonetheless, once a decision on a contentious
matter is reached by a majority vote, the dissenting minority is bound
thereby so that the board can speak with one voice, for those elected to
the governing board are deemed to implicitly contract that the will of the
majority shall govern in matters within the authority of the board.63
The IBP Board, therefore, was well within its right in removing Atty. de
Vera as the latter's actuations during the 10th National IBP Convention
were detrimental to the role of the IBP Board as the governing body of
the IBP. When the IBP Board is not seen by the bar and the public as a
cohesive unit, it cannot effectively perform its duty of helping the
Supreme Court enforce the code of legal ethics and the standards of
legal practice as well as improve the administration of justice.
In view of the importance of retaining group cohesiveness and unity, the
expulsion of a member of the board who insists on bringing to the public
his disagreement with a policy/resolution approved by the majority after
due discussion, cannot be faulted. The effectiveness of the board as a
governing body will be negated if its pronouncements are resisted in
public by a board member.
Indeed, when a member of a governing body cannot accept the voice of
the majority, he should resign therefrom so that he could criticize in public
the majority opinion/decision to his heart's content; otherwise, he
Page 30
subjects himself to disciplinary action by the body.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
The removal of Atty. de Vera as member of the Board of Governors ipso
facto meant his removal as EVP as well
The removal of Atty. de Vera as member of the Board of Governors ipso
facto meant his removal as EVP as well. Section 47, Article VII of the By-
Laws of the IBP provides:
SEC. 47. National Officers. The Integrated Bar of the Philippines shall
have a President and Executive Vice President to be chosen by the
Board of Governors from among nine (9) regional governors, as much
as practicable, on a rotation basis. x x x
Thus, to be EVP of the IBP, one must necessarily be a member of IBP
Board of Governors. Atty. de Vera's removal from the Board of
Governors, automatically disqualified him from acting as IBP EVP. To
insist otherwise would be contrary to Section 47 of the IBP By-Laws.
The Court will not interfere with the Resolution of the IBP Board to
remove Atty. de Vera since it was rendered without grave abuse of
discretion
While it is true that the Supreme Court has been granted an extensive
power of supervision over the IBP,64 it is axiomatic that such power
should be exercised prudently. The power of supervision of the Supreme
Court over the IBP should not preclude the IBP from exercising its
reasonable discretion especially in the administration of its internal
affairs governed by the provisions of its By-Laws. The IBP By-Laws were
precisely drafted and promulgated so as to define the powers and
functions of the IBP and its officers, establish its organizational structure,
and govern relations and transactions among its officers and members.
With these By-Laws in place, the Supreme Court could be assured that
the IBP shall be able to carry on its day-to-day affairs, without the Court's
interference.
It should be noted that the general charge of the affairs and activities of
the IBP has been vested in the Board of Governors. The members of the
Board are elective and representative of each of the nine regions of the
IBP as delineated in its By-Laws.65 The Board acts as a collegiate body
and decides in accordance with the will of the majority. The foregoing
rules serve to negate the possibility of the IBP Board acting on the basis
of personal interest or malice of its individual members. Hence, the
actions and resolutions of the IBP Board deserve to be accorded the
disputable presumption66 of validity, which shall continue, until and
unless it is overcome by substantial evidence and actually declared
invalid by the Supreme Court. In the absence of any allegation and
substantial proof that the IBP Board has acted without or in excess of its
authority or with grave abuse of discretion, we shall not be persuaded to
overturn and set aside the Board's action or resolution.
There is no question that the IBP Board has the authority to remove its
members as provided in Article VI, Section 4467 of the IBP By-Laws.
Issue arises only as to whether the IBP Board abused its authority and
discretion in resolving to remove Atty. de Vera from his post as an IBP
Governor and EVP. As has been previously established herein, Atty. de
Vera's removal from the IBP Board was in accordance with due process
and the IBP Board acted well within the authority and discretion granted
to it by its By-Laws. There being no grave abuse of discretion on the part
of the IBP Board, we find no reason to interfere in the Board's resolution
to remove Atty. de Vera.
The election of Atty. Salazar by the IBP Board as IBP EVP in
replacement of Atty. De Vera was conducted in accordance with the
authority granted to the Board by the IBP By-Laws
In the same manner, we find no reason to disturb the action taken by the
2003-2005 IBP Board of Governors in holding a special election to fill-in
the vacant post resulting from the removal of Atty. de Vera as EVP of the
IBP since the same is a purely internal matter, done without grave abuse
of discretion, and implemented without violating the Rules and By-Laws
of the IBP.
With the removal of Atty. de Vera from the Board, by virtue of the IBP
Board Resolution dated 13 May 2005, he was also removed from his
post as EVP; thus, there was a resultant vacancy in the position of IBP
EVP.
PINEDAPCGRNMAN
Article VI, Section 41(g) of the IBP By-Laws expressly grants to the
Board the authority to fill vacancies, however arising, in the IBP positions,
subject to the provisions of Section 8 of the Integration Rule,68 and
Section 11 (Vacancies),69 Section 44 (Removal of members),70 Section
47 (National officers),71 Section 48 (other officers),72 and Section 49
(Terms of Office)73 of the By-Laws. The IBP Board has specific and
sufficient guidelines in its Rules and By-Laws on how to fill-in the
vacancies after the removal of Atty. de Vera. We have faith and
confidence in the intellectual, emotional and ethical competencies of the
remaining members of the 2005-2007 Board in dealing with the situation
within the bounds of the IBP Rules and By-Laws.
The election by the 2003-2005 IBP Board of Governors of a new EVP,
who will assume the Presidency for the term 2005-2007, was well within
the authority and prerogative granted to the Board by the IBP By-Laws,
particularly Article VII, Section 47, which provides that "[t]he EVP shall
automatically become President for the next succeeding term." The
phrase "for the next succeeding term" necessarily implies that the EVP
that should succeed Atty. Cadiz as IBP President for the next succeeding
term (i.e., 2005-2007) should come from the members of the 2003-2005
IBP Board of Governors. Hence, in A.M. No. 05-7-19-SC, we restrained
now IBP EVP Feliciano Bautista from assuming the position of Acting
President because we have yet to resolve the question as to who shall
succeed Atty. Cadiz from the 2003-2005 IBP Board of Governors.
Accordingly, the elections of Governor Santiago on 13 June 2005 as IBP
EVP, and thereafter, Governor Salazar on 25 June 2005, as the new IBP
EVP, upon the relinquishment of Gov. Santiago of the position, were
valid.
Neither can this Court give credence to the argument of Atty. De Vera
that, assuming his removal as IBP Governor and EVP was valid, his
replacement as IBP EVP should come from Eastern Mindanao Region
pursuant to the rotation rule set forth in Article VII, Section 47, of the IBP
By-Laws.
According to Article VII, Section 47, of the IBP By-Laws, the EVP shall
be chosen by the Board of Governors from among the nine Regional
Governors, as much as practicable, on a rotation basis. This is based on
our pronouncements in Bar Matter 491, wherein we ruled:
"ORDER
xxxx
3. The former system of having the IBP President and Executive Vice-
President elected by the Board of Governors (composed of the
governors of the nine [9] IBP regions) from among themselves (as
provided in Sec. 47, Art. VII, Original IBP By-Laws) should be restored.
The right of automatic succession by the Executive Vice-President to the
presidency upon the expiration of their two-year term (which was
abolished by this Court's resolution dated July 9, 1985 in Bar Matter No.
287) should be as it is hereby restored.
4. At the end of the President's two-year term, the Executive Vice-
President shall automatically succeed to the office of president. The
incoming board of governors shall then elect an Executive Vice-
President from among themselves. The position of Executive Vice-
President shall be rotated among the nine (9) IBP regions. One who has
served as president may not run for election as Executive Vice-President
in a succeeding election until after the rotation of the presidency among
the nine (9) regions shall have been completed; whereupon, the rotation
shall begin anew.
xxxx
(Emphasis Supplied)"
In Bar Matter 491, it is clear that it is the position of IBP EVP which is
actually rotated among the nine Regional Governors. The rotation with
respect to the Presidency is merely a result of the automatic succession
rule of the IBP EVP to the Presidency. Thus, the rotation rule pertains in
particular to the position of IBP EVP, while the automatic succession rule
pertains to the Presidency. The rotation with respect to the Presidency
is but a consequence of the automatic succession rule provided in
Page 31
Section 47 of the IBP By-Laws.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
In the case at bar, the rotation rule was duly complied with since upon
the election of Atty. De Vera as IBP EVP, each of the nine IBP regions
had already produced an EVP and, thus, the rotation was completed. It
is only unfortunate that the supervening event of Atty. de Vera's removal
as IBP Governor and EVP rendered it impossible for him to assume the
IBP Presidency. The fact remains, however, that the rotation rule had
been completed despite the non-assumption by Atty. de Vera to the IBP
Presidency.
Moreover, the application of the rotation rule is not a license to disregard
the spirit and purpose of the automatic succession rule, but should be
applied in harmony with the latter. The automatic succession rule affords
the IBP leadership transition seamless and enables the new IBP National
President to attend to pressing and urgent matters without having to
expend valuable time for the usual adjustment and leadership
consolidation period. The time that an IBP EVP spends assisting a sitting
IBP President on matters national in scope is in fact a valuable and
indispensable preparation for the eventual succession. It should also be
pointed out that this wisdom is further underscored by the fact that an
IBP EVP is elected from among the members of the IBP Board of
Governors, who are serving in a national capacity, and not from the
members at large. It is intrinsic in the IBP By-Laws that one who is to
assume the highest position in the IBP must have been exposed to the
demands and responsibilities of national leadership.
It would therefore be consistent with the purpose and spirit of the
automatic succession rule for Governor Salazar to assume the post of
IBP President. By electing the replacement EVP from among the
members of the 2003-2005 Board of Governors, the IBP benefits from
the experience of the IBP EVP of 2003-2005 in this case, Governor
Salazar who would have served in a national capacity prior to his
assumption of the highest position.
It will also be inconsistent with the purpose and spirit of the automatic
succession rule if the EVP for the term 2003-2005 will be elected
exclusively by the members of the House of Delegates of the Eastern
Mindanao region. This Court notes that the removal of Atty. De Vera in
13 May 2005 was about a month before the expiration of the term of
office of the 2003-2005 Board of Governors. Hence, the replacement
Governor would not have been able to serve in a national capacity for
two years prior to assuming the IBP Presidency.
In any case, Section 47 of the IBP Rules uses the phrase "as much as
practicable" to clearly indicate that the rotation rule is not a rigid and
inflexible rule as to bar exceptions in compelling and exceptional
circumstances.
It is in view of the foregoing that the argument advanced by Atty. De Vera
that the IBP national presidency should be assumed by a nominee from
Eastern Mindanao region from where he comes, can not hold water. It
would go against the intent of the IBP By-Laws for such a nominee would
be bereft of the wealth of experience and the perspective that only one
who is honed in service while serving in a national post in the IBP would
have.
We therefore rule that the IBP Board of Governors acted in accordance
with the IBP By-Laws, in electing Atty. Salazar as IBP EVP and in
ensuring a succession in the leadership of the IBP. Had the Board of
Governors not done so, there would have been no one qualified to
assume the Presidency of the IBP on 1 July 2005, pursuant to Section
47 of the IBP By-Laws.
WHEREFORE, in view of the foregoing, we rule as follows:
1) SUSPEND Atty. Leonard de Vera in A.C. No. 6697 from the practice
of law for TWO (2) YEARS, effective from the finality of this Resolution.
Let a copy of this Resolution be attached to the personal record of Atty.
Leonard de Vera and copies furnished the Integrated Bar of the
Philippines and the Office of the Court Administrator for dissemination to
all courts;
2) DISMISS the letter-complaint of Atty. Leonard de Vera, dated 18 May
2005, in A.M. No. 05-5-15-SC, praying for the disapproval of the
Resolution, dated 13 May 2005, of the Board of Governors of the
Integrated Bar of the Philippines removing him from his posts as
PINEDAPCGRNMAN
Governor and Executive Vice President of the Integrated Bar of the
Philippines, the said Resolution having been rendered without grave
abuse of discretion;
3) AFFIRM the election by the Board of Governors of Atty. Jose Vicente
B. Salazar as Executive Vice President of the Integrated Bar of the
Philippines for the remainder of the term 2003-2005, such having been
conducted in accordance with its By-Laws and absent any showing of
grave abuse of discretion; and
4) DIRECT Atty. Jose Vicente B. Salazar to immediately take his oath of
office and assume the Presidency of the Integrated Bar of the Philippines
for the term 2005-2007 in accordance with the automatic succession rule
in Article VII, Section 47 of the IBP By-Laws, upon receipt of this
Resolution.
SO ORDERED.
A. Law Student Practice Rule RULE 138-A ROC
Section 1. Conditions for student practice. A law student who has
successfully completed his 3rd year of the regular four-year prescribed
law curriculum and is enrolled in a recognized law school's clinical legal
education program approved by the Supreme Court, may appear without
compensation in any civil, criminal or administrative case before any trial
court, tribunal, board or officer, to represent indigent clients accepted by
the legal clinic of the law school.
Section 2. Appearance. The appearance of the law student authorized
by this rule, shall be under the direct supervision and control of a member
of the Integrated Bar of the Philippines duly accredited by the law school.
Any and all pleadings, motions, briefs, memoranda or other papers to be
filed, must be signed by the supervising attorney for and in behalf of the
legal clinic.
Section 3. Privileged communications. The Rules safeguarding
privileged communications between attorney and client shall apply to
similar communications made to or received by the law student, acting
for the legal clinic.
Section 4. Standards of conduct and supervision. The law student
shall comply with the standards of professional conduct governing
members of the Bar. Failure of an attorney to provide adequate
supervision of student practice may be a ground for disciplinary action.
(Circular No. 19, dated December 19, 1986).
G.R. No. 154207 April 27, 2007
FERDINAND A. CRUZ, Petitioner,
vs.
ALBERTO MINA, HON. ELEUTERIO F. GUERRERO and HON.
ZENAIDA LAGUILLES, Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Certiorari under Rule 65 of the Rules of
Court, grounded on pure questions of law, with Prayer for Preliminary
Injunction assailing the Resolution dated May 3, 2002 promulgated by
the Regional Trial Court (RTC), Branch 116, Pasay City, in Civil Case
No. 02-0137, which denied the issuance of a writ of preliminary injunction
against the Metropolitan Trial Court (MeTC), Branch 45, Pasay City, in
Criminal Case No. 00-1705;1 and the RTCs Order dated June 5, 2002
denying the Motion for Reconsideration. No writ of preliminary injunction
was issued by this Court.
The antecedents:
On September 25, 2000, Ferdinand A. Cruz (petitioner) filed before the
MeTC a formal Entry of Appearance, as private prosecutor, in Criminal
Case No. 00-1705 for Grave Threats, where his father, Mariano Cruz, is
the complaining witness.
The petitioner, describing himself as a third year law student, justifies his
appearance as private prosecutor on the bases of Section 34 of Rule
Page 32
138 of the Rules of Court and the ruling of the Court En Banc in
Cantimbuhan v. Judge Cruz, Jr.2 that a non-lawyer may appear before
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
the inferior courts as an agent or friend of a party litigant. The petitioner
furthermore avers that his appearance was with the prior conformity of
the public prosecutor and a written authority of Mariano Cruz appointing
him to be his agent in the prosecution of the said criminal case.
However, in an Order dated February 1, 2002, the MeTC denied
permission for petitioner to appear as private prosecutor on the ground
that Circular No. 19 governing limited law student practice in conjunction
with Rule 138-A of the Rules of Court (Law Student Practice Rule) should
take precedence over the ruling of the Court laid down in Cantimbuhan;
and set the case for continuation of trial.3
On February 13, 2002, petitioner filed before the MeTC a Motion for
Reconsideration seeking to reverse the February 1, 2002 Order alleging
that Rule 138-A, or the Law Student Practice Rule, does not have the
effect of superseding Section 34 of Rule 138, for the authority to interpret
the rule is the source itself of the rule, which is the Supreme Court alone.
In an Order dated March 4, 2002, the MeTC denied the Motion for
Reconsideration.
On April 2, 2002, the petitioner filed before the RTC a Petition for
Certiorari and Mandamus with Prayer for Preliminary Injunction and
Temporary Restraining Order against the private respondent and the
public respondent MeTC.
After hearing the prayer for preliminary injunction to restrain public
respondent MeTC Judge from proceeding with Criminal Case No. 00-
1705 pending the Certiorari proceedings, the RTC, in a Resolution dated
May 3, 2002, resolved to deny the issuance of an injunctive writ on the
ground that the crime of Grave Threats, the subject of Criminal Case No.
00-1705, is one that can be prosecuted de oficio, there being no claim
for civil indemnity, and that therefore, the intervention of a private
prosecutor is not legally tenable.
On May 9, 2002, the petitioner filed before the RTC a Motion for
Reconsideration. The petitioner argues that nowhere does the law
provide that the crime of Grave Threats has no civil aspect. And last,
petitioner cites Bar Matter No. 730 dated June 10, 1997 which expressly
provides for the appearance of a non-lawyer before the inferior courts,
as an agent or friend of a party litigant, even without the supervision of a
member of the bar.
Pending the resolution of the foregoing Motion for Reconsideration
before the RTC, the petitioner filed a Second Motion for Reconsideration
dated June 7, 2002 with the MeTC seeking the reversal of the March 4,
2002 Denial Order of the said court, on the strength of Bar Matter No.
730, and a Motion to Hold In Abeyance the Trial dated June 10, 2002 of
Criminal Case No. 00-1705 pending the outcome of the certiorari
proceedings before the RTC.
On June 5, 2002, the RTC issued its Order denying the petitioners
Motion for Reconsideration.
Likewise, in an Order dated June 13, 2002, the MeTC denied the
petitioners Second Motion for Reconsideration and his Motion to Hold in
Abeyance the Trial on the ground that the RTC had already denied the
Entry of Appearance of petitioner before the MeTC.
On July 30, 2002, the petitioner directly filed with this Court, the instant
Petition and assigns the following errors:
I.
the respondent regional trial court abused its discretion when it resolved
to deny the prayer for the writ of injunction of the herein petitioner despite
petitioner having established the necessity of granting the writ;
II.
THE RESPONDENT TRIAL COURT ABUSED ITS DISCRETION,
TANTAMOUNT TO IGNORANCE OF THE LAW, WHEN IT RESOLVED
TO DENY THE PRAYER FOR THE WRIT OF PRELIMINARY
INJUNCTION AND THE SUBSEQUENT MOTION FOR
RECONSIDERATION OF THE HEREIN PETITIONER ON THE BASIS
THAT [GRAVE] THREATS HAS NO CIVIL ASPECT, FOR THE SAID
BASIS OF DENIAL IS NOT IN ACCORD WITH THE LAW;
III.
THE RESPONDENT METROPOLITAN TRIAL COURT ABUSED ITS
DISCRETION WHEN IT DENIED THE MOTION TO HOLD IN
PINEDAPCGRNMAN
ABEYANCE TRIAL, WHEN WHAT WAS DENIED BY THE
RESPONDENT REGIONAL TRIAL COURT IS THE ISSUANCE OF THE
WRIT OF PRELIMINARY INJUNCTION and WHEN THE
RESPONDENT REGIONAL TRIAL COURT IS YET TO DECIDE ON
THE MERITS OF THE PETITION FOR CERTIORARI;
IV.
THE RESPONDENT COURT[s] ARE CLEARLY IGNORING THE LAW
WHEN THEY PATENTLY REFUSED TO HEED TO [sic] THE CLEAR
MANDATE OF THE LAPUT, CANTIMBUHAN AND BULACAN CASES,
AS WELL AS BAR MATTER NO. 730, PROVIDING FOR THE
APPEARANCE OF NON-LAWYERS BEFORE THE LOWER COURTS
(MTCS).4
This Court, in exceptional cases, and for compelling reasons, or if
warranted by the nature of the issues reviewed, may take cognizance of
petitions filed directly before it.5
Considering that this case involves the interpretation, clarification, and
implementation of Section 34, Rule 138 of the Rules of Court, Bar Matter
No. 730, Circular No. 19 governing law student practice and Rule 138-A
of the Rules of Court, and the ruling of the Court in Cantimbuhan, the
Court takes cognizance of herein petition.
The basic question is whether the petitioner, a law student, may appear
before an inferior court as an agent or friend of a party litigant.
The courts a quo held that the Law Student Practice Rule as
encapsulated in Rule 138-A of the Rules of Court, prohibits the petitioner,
as a law student, from entering his appearance in behalf of his father,
the private complainant in the criminal case without the supervision of an
attorney duly accredited by the law school.
Rule 138-A or the Law Student Practice Rule, provides:
RULE 138-A
LAW STUDENT PRACTICE RULE
Section 1. Conditions for Student Practice. A law student who has
successfully completed his 3rd year of the regular four-year prescribed
law curriculum and is enrolled in a recognized law school's clinical legal
education program approved by the Supreme Court, may appear without
compensation in any civil, criminal or administrative case before any trial
court, tribunal, board or officer, to represent indigent clients accepted by
the legal clinic of the law school.
Sec. 2. Appearance. The appearance of the law student authorized by
this rule, shall be under the direct supervision and control of a member
of the Integrated Bar of the Philippines duly accredited by the law school.
Any and all pleadings, motions, briefs, memoranda or other papers to be
filed, must be signed by the supervising attorney for and in behalf of the
legal clinic.
However, in Resolution6 dated June 10, 1997 in Bar Matter No. 730, the
Court En Banc clarified:
The rule, however, is different if the law student appears before an
inferior court, where the issues and procedure are relatively simple. In
inferior courts, a law student may appear in his personal capacity without
the supervision of a lawyer. Section 34, Rule 138 provides:
Sec. 34. By whom litigation is conducted. - In the court of a justice of the
peace, a party may conduct his litigation in person, with the aid of an
agent or friend appointed by him for that purpose, or with the aid of an
attorney. In any other court, a party may conduct his litigation personally
or by aid of an attorney, and his appearance must be either personal or
by a duly authorized member of the bar.
Thus, a law student may appear before an inferior court as an agent or
friend of a party without the supervision of a member of the bar.7
(Emphasis supplied)
The phrase "In the court of a justice of the peace" in Bar Matter No. 730
is subsequently changed to "In the court of a municipality" as it now
appears in Section 34 of Rule 138, thus:8
SEC. 34. By whom litigation is conducted. In the Court of a
municipality a party may conduct his litigation in person, with the aid of
an agent or friend appointed by him for that purpose, or with the aid of
Page 33
an attorney. In any other court, a party may conduct his litigation
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
personally or by aid of an attorney and his appearance must be either
personal or by a duly authorized member of the bar. (Emphasis supplied)
which is the prevailing rule at the time the petitioner filed his Entry of
Appearance with the MeTC on September 25, 2000. No real distinction
exists for under Section 6, Rule 5 of the Rules of Court, the term
"Municipal Trial Courts" as used in these Rules shall include Metropolitan
Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and
Municipal Circuit Trial Courts.
There is really no problem as to the application of Section 34 of Rule 138
and Rule 138-A. In the former, the appearance of a non-lawyer, as an
agent or friend of a party litigant, is expressly allowed, while the latter
rule provides for conditions when a law student, not as an agent or a
friend of a party litigant, may appear before the courts.
Petitioner expressly anchored his appearance on Section 34 of Rule 138.
The court a quo must have been confused by the fact that petitioner
referred to himself as a law student in his entry of appearance. Rule 138-
A should not have been used by the courts a quo in denying permission
to act as private prosecutor against petitioner for the simple reason that
Rule 138-A is not the basis for the petitioners appearance.
Section 34, Rule 138 is clear that appearance before the inferior courts
by a non-lawyer is allowed, irrespective of whether or not he is a law
student. As succinctly clarified in Bar Matter No. 730, by virtue of Section
34, Rule 138, a law student may appear, as an agent or a friend of a
party litigant, without the supervision of a lawyer before inferior courts.
Petitioner further argues that the RTC erroneously held that, by its very
nature, no civil liability may flow from the crime of Grave Threats, and,
for this reason, the intervention of a private prosecutor is not possible.
It is clear from the RTC Decision that no such conclusion had been
intended by the RTC. In denying the issuance of the injunctive court, the
RTC stated in its Decision that there was no claim for civil liability by the
private complainant for damages, and that the records of the case do not
provide for a claim for indemnity; and that therefore, petitioners
appearance as private prosecutor appears to be legally untenable.
Under Article 100 of the Revised Penal Code, every person criminally
liable for a felony is also civilly liable except in instances when no actual
damage results from an offense, such as espionage, violation of
neutrality, flight to an enemy country, and crime against popular
representation.9 The basic rule applies in the instant case, such that
when a criminal action is instituted, the civil action for the recovery of civil
liability arising from the offense charged shall be deemed instituted with
criminal action, unless the offended party waives the civil action,
reserves the right to institute it separately or institutes the civil action prior
to the criminal action.10
The petitioner is correct in stating that there being no reservation, waiver,
nor prior institution of the civil aspect in Criminal Case No. 00-1705, it
follows that the civil aspect arising from Grave Threats is deemed
instituted with the criminal action, and, hence, the private prosecutor may
rightfully intervene to prosecute the civil aspect.
WHEREFORE, the Petition is GRANTED. The assailed Resolution and
Order of the Regional Trial Court, Branch 116, Pasay City are
REVERSED and SET ASIDE. The Metropolitan Trial Court, Branch 45,
Pasay City is DIRECTED to ADMIT the Entry of Appearance of petitioner
in Criminal Case No. 00-1705 as a private prosecutor under the direct
control and supervision of the public prosecutor.
No pronouncement as to costs.
SO ORDERED.
G. Lawyers Oath
I , do solemnly swear that I will maintain allegiance to the
Republic of the Philippines; I will support and defend its Constitution and
obey the laws as well as the legal orders of the duly constituted
authorities therein; I will do no falsehood nor consent to its commission;
I will not wittingly or willingly promote or sue any groundless, false or
unlawful suit nor give aid nor consent to the same; I will not delay any
mans cause for money or malice and will conduct myself as a lawyer
PINEDAPCGRNMAN
according to the best of my knowledge and discretion with all good
fidelity as well to the court as to my clients; and I will impose upon
myself this obligation voluntarily, without any mental reservation or
purpose of evasion.
So help me God.
B.M. No. 712 March 19, 1997
RE: PETITION OF AL ARGOSINO TO TAKE THE LAWYERS OATH
RESOLUTION
PADILLA, J.:
Petitioner Al Caparros Argosino passed the bar examinations held in
1993. The Court however deferred his oath-taking due to his previous
conviction for Reckless Imprudence Resulting In Homicide.
The criminal case which resulted in petitioner's conviction, arose from
the death of a neophyte during fraternity initiation rites sometime in
September 1991. Petitioner and seven (7) other accused initially entered
pleas of not guilty to homicide charges. The eight (8) accused later
withdrew their initial pleas and upon re-arraignment all pleaded guilty to
reckless imprudence resulting in homicide.
On the basis of such pleas, the trial court rendered judgment dated 11
February 1993 imposing on each of the accused a sentence of
imprisonment of from two (2) years four (4) months :and one (1) day to
four (4) years.
On 18 June 1993, the trial court granted herein petitioner's application
for probation.
On 11 April 1994, the trial court issued an order approving a report dated
6 April 1994 submitted by the Probation Officer recommending
petitioner's discharge from probation.
On 14 April 1994, petitioner filed before this Court a petition to be allowed
to take the lawyer's oath based on the order of his discharge from
probation.
On 13 July 1995, the Court through then Senior Associate Justice
Florentino P. Feliciano issued a resolution requiring petitioner Al C.
Argosino to submit to the Court evidence that he may now be regarded
as complying with the requirement of good moral character imposed
upon those seeking admission to the bar.
In compliance with the above resolution, petitioner submitted no less
than fifteen (15) certifications/letters executed by among others two (2)
senators, five (5) trial court judges, and six (6) members of religious
orders. Petitioner likewise submitted evidence that a scholarship
foundation had been established in honor of Raul Camaligan, the hazing
victim, through joint efforts of the latter's family and the eight (8) accused
in the criminal case.
On 26 September 1995, the Court required Atty. Gilbert Camaligan,
father of Raul, to comment on petitioner's prayer to be allowed to take
the lawyer's oath.
In his comment dated 4 December 1995, Atty. Camaligan states that:
a. He still believes that the infliction of severe physical injuries which led
to the death of his son was deliberate rather than accidental. The offense
therefore was not only homicide but murder since the accused took
advantage of the neophyte's helplessness implying abuse of confidence,
taking advantage of superior strength and treachery.
b. He consented to the accused's plea of guilt to the lesser offense of
reckless imprudence resulting in homicide only out of pity for the mothers
of the accused and a pregnant wife of one of the accused who went to
their house on Christmas day 1991 and Maundy Thursday 1992, literally
on their knees, crying and begging for forgiveness and compassion.
They also told him that the father of one of the accused had died of a
heart attack upon learning of his son's involvement in the incident.
c. As a Christian, he has forgiven petitioner and his co-accused for the
death of his son. However, as a loving father who had lost a son whom
he had hoped would succeed him in his law practice, he still feels the
pain of an untimely demise and the stigma of the gruesome manner of
his death.
Page 34
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
d. He is not in a position to say whether petitioner is now morally fit for
admission to the bar. He therefore submits the matter to the sound
discretion of the Court.
The practice of law is a privilege granted only to those who possess the
strict intellectual and moral qualifications required of lawyers who are
instruments in the effective and efficient administration of justice. It is the
sworn duty of this Court not only to "weed out" lawyers who have become
a disgrace to the noble profession of the law but, also of equal
importance, to prevent "misfits" from taking the lawyer's oath, thereby
further tarnishing the public image of lawyers which in recent years has
undoubtedly become less than irreproachable.
The resolution of the issue before us required weighing and reweighing
of the reasons for allowing or disallowing petitioner's admission to the
practice of law. The senseless beatings inflicted upon Raul Camaligan
constituted evident absence of that moral fitness required for admission
to the bar since they were totally irresponsible, irrelevant and uncalled
for.
In the 13 July 1995 resolution in this case we stated:
. . . participation in the prolonged and mindless physical behavior, [which]
makes impossible a finding that the participant [herein petitioner] was
then possessed of good moral character. 1
In the same resolution, however, we stated that the Court is prepared to
consider de novo the question of whether petitioner has purged himself
of the obvious deficiency in moral character referred to above.
Before anything else, the Court understands and shares the sentiment
of Atty. Gilbert Camaligan. The death of one's child is, for a parent, a
most traumatic experience. The suffering becomes even more
pronounced and profound in cases where the death is due to causes
other than natural or accidental but due to the reckless imprudence of
third parties. The feeling then becomes a struggle between grief and
anger directed at the cause of death.
Atty. Camaligan's statement before the Court- manifesting his having
forgiven the accused is no less than praiseworthy and commendable. It
is exceptional for a parent, given the circumstances in this case, to find
room for forgiveness.
However, Atty. Camaligan admits that he is still not in a position to state
if petitioner is now morally fit to be a lawyer.
After a very careful evaluation of this case, we resolve to allow petitioner
Al Caparros Argosino to take the lawyer's oath, sign the Roll of Attorneys
and practice the legal profession with the following admonition:
In allowing Mr. Argosino to take the lawyer's oath, the Court recognizes
that Mr. Argosino is not inherently of bad moral fiber. On the contrary,
the various certifications show that he is a devout Catholic with a genuine
concern for civic duties and public service.
The Court is persuaded that Mr. Argosino has exerted all efforts to atone
for the death of Raul Camaligan. We are prepared to give him the benefit
of the doubt, taking judicial notice of the general tendency of youth to be
rash, temerarious and uncalculating.
We stress to Mr. Argosino that the lawyer's oath is NOT a mere
ceremony or formality for practicing law. Every lawyer should at ALL
TIMES weigh his actions according to the sworn promises he makes
when taking the lawyer's oath. If all lawyers conducted themselves
strictly according to the lawyer's oath and the Code of Professional
Responsibility, the administration of justice will undoubtedly be faster,
fairer and easier for everyone concerned.
The Court sincerely hopes that Mr. Argosino will continue with the
assistance he has been giving to his community. As a lawyer he will now
be in a better position to render legal and other services to the more
unfortunate members of society.
PREMISES CONSIDERED, petitioner Al Caparros Argosino is hereby
ALLOWED to take the lawyer's oath on a date to be set by the Court, to
sign the Roll of Attorneys and, thereafter, to practice the legal profession.
SO ORDERED.
H. Membership to IBP
[A.C. No. 1928. August 3, 1978.]
PINEDAPCGRNMAN
In the Matter of the IBP Membership Dues Delinquency of Atty.
MARCIAL A. EDILLON (IBP Administrative Case No. MDD - 1).
SYNOPSIS
For respondent's stubborn refusal to pay his membership dues to the
Integrated Bar of the Philippines since the latter's constitution,
notwithstanding due notice, the Board of Governors of the Integrated Bar
of the Philippines unanimously adopted and submitted to the Supreme
Court a resolution recommending the removal of respondent's name
from its Roll of Attorneys, pursuant to Par. 2, Sec. 24, Art. III of the By-
Laws of the IBP.
Respondent, although conceding the propriety and necessity of the
integration of the Bar of the Philippines, questions the all-encompassing,
all-inclusive scope of membership therein and the obligation to pay
membership dues arguing that the provisions therein (Section 1 and 9 of
the Court Rule 139-A) constitute an invasion of his constitutional right in
the sense that he is being compelled, as a precondition to maintaining
his status as a lawyer in good standing, to be a member of the IBP and
to pay the corresponding dues, and that as a consequence of this
compelled financial support of the said organization to which he is
admittedly personally antagonistic, he is being deprived of the rights to
liberty and property guaranteed to him by the Constitution. Respondent
likewise questions the jurisdiction of the Supreme Court to strike his
name from the Roll of Attorneys, contending that this matter is not among
the justiciable cases triable by the Court but is of an administrative nature
pertaining to an administrative body.
The Supreme Court unanimously held that all legislation directing the
integration of the Bar are valid exercise of the police power over an
important profession; that to compel a lawyer to be a member of the IBP
is not violative of his constitutional freedom to associate; that the
requirement to pay membership fees is imposed as a regulatory
measure designed to raise funds for carrying out the objectives and
purposes of integration; that the penalty provisions for non-payment are
not void as unreasonable or arbitrary; that the Supreme Court's
jurisdiction and power to strike the name of a lawyer from its Roll of
Attorneys is expressly provided by Art.X, Section 5(5) of the Constitution
and held as an inherent judicial function by a host of decided cases; and
that the provisions of Rules of Court 139-A ordaining the integration of
the Bar of the Philippines and the IBP By-Laws complained of are neither
unconstitutional nor illegal.
Respondent disbarred and his name ordered stricken from the Roll of
Attorneys.
SYLLABUS
1.ATTORNEYS; BAR INTEGRATION; NATURE AND PURPOSE. An
"Integrated Bar" is a State-organized Bar, to which every lawyer must
belong, as distinguished from bar associations organized by individual
lawyers themselves, membership in which is voluntary. Integration of the
Bar is essentially a process by which every member of the Bar is afforded
an opportunity to do his share in carrying out the objectives of the Bar as
well as obliged to bear his portion of its responsibilities. Organized by or
under the direction of the State, an integrated Bar is an official national
body of which all lawyers are required to be members. They are,
therefore, subject to all the rules prescribed for the governance of the
Bar, including the requirement of payment of a reasonable annual fee for
the effective discharge of the purposes of the Bar, and adherence to a
code of professional ethics or professional responsibility breach of which
constitutes sufficient reason for investigation by the Bar and, upon proper
cause appearing, a recommendation for discipline or disbarment of the
offending member.
2. ID.; ID.; INTEGRATION OF THE BAR, A VALID EXERCISE OF
POLICE POWER; PRACTICE OF LAW NOT A VESTED RIGHT BUT A
PRIVILEGE. All legislation directing the integration of the Bar have
Page 35
been uniformly and universally sustained as a valid exercise of the police
power over an important profession. The practice of law is not a vested
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
right but a privilege, a privilege moreover clothed with public interest
because a lawyer owes substantial duties not only to his client, but also
to his brethren in the profession, to the courts, and to the nation, and
takes part in one of the most important functions of the State the
administration of justice as an officer of the Court. The practice of law
being clothed with public interest, the holder of this privilege must submit
to a degree of control for the common good, to the extent of the interest
he has created. The expression "affected with a public interest" is the
equivalent of "subject to the exercise of the police power"
3. ID.; ID.; ID.; LEGISLATION TO EFFECT THE INTEGRATION OF THE
PHILIPPINE BAR. The Congress in enacting Republic Act No. 6397,
approved on September 17, 1971, authorizing the Supreme Court to
"adopt rules of court to effect the integration of the Philippine Bar under
such conditions as it shall see fit," it did so in the exercise of the
paramount police power of the State. The Act's avowal is to "raise the
standards of the legal profession, improve the administration of justice,
and enable the Bar to discharge its public responsibility more effectively,"
the Supreme Court in ordaining the integration of the Bar through its
Resolution promulgated on January 9, 1973, and the President of the
Philippines in decreeing the constitution of the IBP into a body corporate
through Presidential Decree No. 181 dated May 4, 1973, were prompted
by fundamental considerations of public welfare and motivated by a
desire to meet the demands of pressing public necessity.
4. ID.; ID.; ID.; IMPOSITION OF RESTRAINTS JUSTIFIED. The
State, in order to promote the general welfare, may interfere with and
regulate personal liberty, property and occupations. Persons and
property may be subjected to restraints and burdens in order to secure
the general prosperity and welfare of the State (U.S. vs. Gomez Jesus,
31 Phil. 218), for, as the Latin maxim goes, "Salus populi est supreme
lex." The public welfare is the supreme law. To this fundamental principle
of government the rights of individuals are subordinated. Liberty is a
blessing without which life is a misery, but liberty should not be made to
prevail over authority because then society will fall into anarchy
(Calalang vs. Williams, 70 Phil. 726). It is an undoubted power of the
State to restrain some individuals from all freedom, and all individuals
from some freedom.
5. ID.; ID.; CONSTITUTION VESTS SUPREME COURT WITH
PLENARY POWER IN ALL CASES REGARDING ADMISSION TO AND
SUPERVISION OF THE PRACTICE OF LAW. Even without the
enabling Act (Republic Act No. 6397), and looking solely to the language
of the provision of the Constitution granting the Supreme Court the power
"to promulgate rules concerning pleading, practice and procedure in all
courts, and the admission to the practice of law, "(Sec. 5[5], Art. X, 1973
Costitution) it at once becomes indubitable that this constitutional
declaration vests the Supreme Court with plenary power in all cases
regarding the admission to and supervision of the practice of law.
6. ID.; ID.; COMPULSORY MEMBERSHIP THEREIN NOT VIOLATIVE
OF A LAWYER'S CONSTITUTIONAL FREEDOM TO ASSOCIATE.
To compel a lawyer to be a member of the Integrated Bar is not violative
of his constitutional freedom to associate. Integration does not make a
lawyer a member of any group of which he is not already a member. He
becomes a member of the Bar when he passed the Bar examinations.
All that integration actually does is to provide an official national
organization for the well-defined but unorganized and incohesive group
of which every lawyer is already a member. Bar integration does not
compel the lawyer to associate with anyone. He is free to attend or not
attend the meetings of his Integrated Bar Chapter or vote or refuse to
vote in its elections as he chooses. The only compulsion to which he is
subjected is the payment of annual dues. The Supreme Court, in order
to further the State's legitimate interest in elevating the quality of
professional legal services, may require that the cost of improving the
profession in this fashion be shared by the subjects and beneficiaries of
the regulatory program the lawyers.
7. ID.; ID.; PAYMENT OF MEMBERSHIP FEE; A REGULATORY
MEASURE NOT PROHIBITED BY LAW. There is nothing in the
Constitution that prohibits the Supreme Court, under its constitutional
PINEDAPCGRNMAN
power and duty to promulgate rules concerning the admission to the
practice of law and the integration of the Philippine Bar (Article X, Section
5 of the 1973 Constitution) from requiring members of a privileged class,
such as lawyers are, to pay a reasonable fee toward defraying the
expenses of regulation of the profession to which they belong. It is quite
apparent that the fee is indeed imposed as a regulatory measure,
designed to raise funds for carrying out the objectives and purposes of
integration.
8. ID.; ID.; ID.; PENALTY PROVISIONS, NOT VOID. If the power to
impose the fee as a regulatory measure is recognize, then a penalty
designed to enforce its payment, which penalty may be avoided
altogether by payment, is not void as unreasonable or arbitrary. The
practice of law is not a property right but a mere privilege, and as such
must bow to the inherent regulatory power of the Court to exact
compliance with the lawyer s public responsibilities.
9. ID.;
POWER TO PASS UPON FITNESS TO REMAIN A MEMBER OF THE
BAR VESTED IN THE SUPREME COURT. The matters of admission,
suspension, disbarment and reinstatement of lawyers and their
regulation and supervision have been and are indisputably recognized
as inherent judicial functions and responsibilities. The power of the
Supreme Court to regulate the conduct and qualifications of its officers
does not depend upon constitutional or statutory grounds. It has
limitations no less real because they are inherent. The very burden of
the duty is itself a guaranty that the power will not be misused or
prostituted.
10. ID.; ID.;
CASE AT BAR. The provisions of Rule 139-A of the Rules of Court
ordaining the integration of the Bar of the Philippines and the By-Laws of
the Integrated Bar of the Philippines is neither unconstitutional nor illegal,
and a lawyer's stubborn refusal to pay his membership dues to the
Integrated Bar of the Philippines, notwithstanding due notice, in violation
of said Rule and By-Laws, is a ground for disbarment and striking out of
his name from the Roll of Attorneys of the Court.
RESOLUTION
CASTRO, C.J p:
The respondent Marcial A. Edillon is a duly licensed practicing attorney
in the Philippines.
On November 29, 1975, the Integrated Bar of the Philippines (IBP for
short) Board of Governors unanimously adopted Resolution No. 75-65 in
Administrative Case No. MDD-1 (In the Matter of the Membership Dues
Delinquency of Atty. Marcial A. Edillon) recommending to the Court the
removal of the name of the respondent from its Roll of Attorneys for
"stubborn refusal to pay his membership dues" to the IBP since the
latter's constitution notwithstanding due notice.
On January 21, 1976, the IBP, through its then President Liliano B. Neri,
submitted the said resolution to the Court for consideration and approval,
pursuant to paragraph 2, Section 24, Article III of the By-Laws of the IBP,
which reads:
". . . . Should the delinquency further continue until the following June 29,
the Board shall promptly inquire into the cause or causes of the
continued delinquency and take whatever action it shall deem
appropriate, including a recommendation to the Supreme Court for the
removal of the delinquent member's name from the Roll of Attorneys.
Notice of the action taken shall be sent by registered mail to the member
and to the Secretary of the Chapter concerned."
On January 27, 1976, the Court required the respondent to comment on
the resolution and letter adverted to above; he submitted his comment
on February 23, 1976, reiterating his refusal to pay the membership fees
due from him.
On March 2, 1976, the Court required the IBP President and the IBP
Board of Governors to reply to Edillon's comment: on March 24, 1976,
they submitted a joint reply.
Page 36
Thereafter, the case was set for hearing on June 3, 1976. After the
hearing, the parties were required to submit memoranda in amplification
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
of their oral arguments. The matter was thenceforth submitted for
resolution.
At the threshold, a painstaking scrutiny of the respondent's pleadings
would show that the propriety and necessity of the integration of the Bar
of the Philippines are in essence conceded. The respondent, however,
objects to particular features of Rule of Court 139-A (hereinafter referred
to as the Court Rule) 1 in accordance with which the Bar of the
Philippines was integrated and to the provisions of par. 2, Section 24,
Article III of the IBP By-Laws (hereinabove cited).
The authority of the IBP Board of Governors to recommend to the
Supreme Court the removal of a delinquent member's name from the
Roll of Attorneys is found in par. 2 Section 24, Article III of the IBP By-
Laws (supra), whereas the authority of the Court to issue the order
applied for is found in Section 10 of the Court Rule, which reads:
"SEC. 10. Effect of
non-payment of dues. Subject to the provisions of Section 12 of this
Rule, default in the payment of annual dues for six months shall warrant
suspension of membership in the Integrated Bar, and default in such
payment for one year shall be a ground for the removal of the name of
the delinquent member from the Roll of Attorneys."
The all-encompassing, all-inclusive scope of membership in the IBP is
stated in these words of the Court Rule: LLphil
"SECTION 1. Organization. There is hereby organized an official
national body to be known as the 'Integrated Bar of the Philippines,'
composed of all persons whose names now appear or may hereafter be
included in the Roll of Attorneys of the Supreme Court."
The obligation to pay membership dues is couched in the following words
of the Court Rule:
"SEC. 9. Membership dues. Every member of the Integrated Bar shall
pay such annual dues as the Board of Governors shall determine with
the approval of the Supreme Court. . . . ."
The core of the respondent's arguments is that the above provisions
constitute an invasion of his constitutional rights in the sense that he is
being compelled, as a pre-condition to maintaining his status as a lawyer
in good standing, to be a member of the IBP and to pay the
corresponding dues, and that as a consequence of this compelled
financial support of the said organization to which he is admittedly
personally antagonistic, he is being deprived of the rights to liberty and
property guaranteed to him by the Constitution. Hence, the respondent
concludes, the above provisions of the Court Rule and of the IBP By-
Laws are void and of no legal force and effect.
The respondent similarly questions the jurisdiction of the Court to strike
his name from the Roll of Attorneys, contending that the said matter is
not among the justiciable cases triable by the Court but is rather of an
"administrative nature pertaining to an administrative body."
The case at bar is not the first one that has reached the Court relating to
constitutional issues that inevitably and inextricably come up to the
surface whenever attempts are made to regulate the practice of law,
define the conditions of such practice, or revoke the license granted for
the exercise of the legal profession.
The matters here complained of are the very same issues raised in a
previous case before the Court, entitled "Administrative Case No. 526,
In the Matter of the Petition for the Integration of the Bar of the
Philippines, Roman Ozaeta, et al., Petitioners." The Court exhaustively
considered all these matters in that case in its Resolution ordaining the
integration of the Bar of the Philippines, promulgated on January 9, 1973.
The Court there made the unanimous pronouncement that it was.
". . . . fully convinced, after a thoroughgoing conscientious study of all the
arguments adduced in Adm. Case No. 526 and the authoritative
materials and the mass of factual data contained in the exhaustive
Report of the Commission on Bar Integration, that the integration of the
Philippine Bar is 'perfectly constitutional and legally unobjectionable' . .
."
Be that as it may, we now restate briefly the posture of the Court.
An "Integrated Bar" is a State-organized Bar, to which every lawyer must
belong, as distinguished from bar associations organized by individual
PINEDAPCGRNMAN
lawyers themselves, membership in which is voluntary. Integration of the
Bar is essentially a process by which every member of the Bar is afforded
an opportunity to do his share in carrying out the objectives of the Bar as
well as obliged to bear his portion of its responsibilities. Organized by or
under the direction of the State, an integrated Bar is an official national
body of which all lawyers are required to be members. They are,
therefore, subject to all the rules prescribed for the governance of the
Bar, including the requirement of payment of a reasonable annual fee for
the effective discharge of the purposes of the Bar, and adherence to a
code of professional ethics or professional responsibility breach of which
constitutes sufficient reason for investigation by the Bar and, upon proper
cause appearing, a recommendation for discipline or disbarment of the
offending member. 2
The integration of the Philippine Bar was obviously dictated by overriding
considerations of public interest and public welfare to such an extent as
more than constitutionally and legally justifies the restrictions that
integration imposes upon the personal interests and personal
convenience of individual lawyers. 3
Apropos to the above, it must be stressed that all legislation directing the
integration of the Bar have been uniformly and universally sustained as
a valid exercise of the police power over an important profession. The
practice of law is not a vested right but a privilege, a privilege moreover
clothed with public interest because a lawyer owes substantial duties not
only to his client, but also to his brethren in the profession, to the courts,
and to the nation, and takes part in one of the most important functions
of the State the administration of justice as an officer of the Court.
4 The practice of law being clothed with public interest, the holder of this
privilege must submit to a degree of control for the common good, to the
extent of the interest he has created. As the U. S. Supreme Court through
Mr. Justice Roberts explained, the expression "affected with a public
interest" is the equivalent of "subject to the exercise of the police power"
(Nebbia vs. New York, 291 U.S. 502).
When, therefore, Congress enacted Republic Act No. 6397 5 authorizing
the Supreme Court to "adopt rules of court to effect the integration of the
Philippine Bar under such conditions as it shall see fit," it did so in the
exercise of the paramount police power of the State. The Act's avowal is
to "raise the standards of the legal profession, improve the administration
of justice, and enable the Bar to discharge its public responsibility more
effectivity." Hence, the Congress in enacting such Act, the Court in
ordaining the integration of the Bar through its Resolution promulgated
on January 9, 1973, and the President of the Philippines in decreeing the
constitution of the IBP into a body corporate through Presidential Decree
No. 181 dated May 4, 1973, were prompted by fundamental
considerations of public welfare and motivated by a desire to meet the
demands of pressing public necessity.
The State, in order to promote the general welfare, may interfere with
and regulate personal liberty, property and occupations. Persons and
property may be subjected to restraints and burdens in order to secure
the general prosperity and welfare of the State (U.S. vs. Gomez Jesus,
31 Phil. 218), for, as the Latin maxim goes, "Salus populi est supreme
lex." The public welfare is the supreme law. To this fundamental principle
of government the rights of individuals are subordinated. Liberty is a
blessing without which life is a misery, but liberty should not be made to
prevail over authority because then society will fall into anarchy
(Calalang vs. Williams, 70 Phil. 726). It is an undoubted power of the
State to restrain some individuals from all freedom, and all individuals
from some freedom.
But the most compelling argument sustaining the constitutionality and
validity of Bar integration in the Philippines is the explicit unequivocal
grant of precise power to the Supreme Court by Section 5 (5) of Article
X of the 1973 Constitution of the Philippines, which reads:
"Sec. 5. The Supreme Court shall have the following powers: xxx xxx
xxx "(5) Promulgate rules concerning pleading, practice, and procedure
in all courts, and the admission to the practice of law and the integration
Page 37
of the Bar . . .",
and Section 1 of Republic Act No. 6397, which reads:
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
"SECTION 1. Within two years from the approval of this Act, the Supreme
Court may adopt rules of Court to effect the integration of the Philippine
Bar under such conditions as it shall see fit in order to raise the standards
of the legal profession, improve the administration of justice, and enable
the Bar to discharge its public responsibility more effectively."
Quite apart from the above, let it be stated that even without the enabling
Act (Republic Act No. 6397), and looking solely to the language of the
provision of the Constitution granting the Supreme Court the power "to
promulgate rules concerning pleading, practice and procedure in all
courts, and the admission to the practice of law, " it at once becomes
indubitable that this constitutional declaration vests the Supreme Court
with plenary power in all cases regarding the admission to and
supervision of the practice of law.
Thus, when the respondent Edillon entered upon the legal profession,
his practice of law and his exercise of the said profession, which affect
the society at large, were (and are) subject to the power of the body
politic to require him to conform to such regulations as might be
established by the proper authorities for the common good, even to the
extent of interfering with some of his liberties. If he did not wish to submit
himself to such reasonable interference and regulation, he should not
have clothed the public with an interest in his concerns.
On this score alone, the case for the respondent must already fall.
The issues being of constitutional dimension, however, we now concisely
deal with them seriatim. prLL
1. The first objection posed by the respondent is that the Court is without
power to compel him to become a member of the Integrated Bar of the
Philippines, hence, Section 1 of the Court Rule is unconstitutional for it
impinges on his constitutional right of freedom to associate (and not to
associate). Our answer is: To compel a lawyer to be a member of the
Integrated Bar is not violative of his constitutional freedom to associate.
6 determination to uphold the ideals and traditions of an honorable
Integration does not make a lawyer a member of any group of which he
is not already a member. He became a member of the Bar when he
passed the Bar examinations. All that integration actually does is to
provide an official national organization for the well-defined but
unorganized and incohesive group of which every lawyer is already a
member.
Bar integration does not compel the lawyer to associate with anyone. He
is free to attend or not attend the meetings of his Integrated Bar Chapter
or vote or refuse to vote in its elections as he chooses. The only
compulsion to which he is subjected is the payment of annual dues. The
Supreme Court, in order to further the State's legitimate interest in
elevating the quality of professional legal services, may require that the
cost of improving the profession in this fashion be shared by the subjects
and beneficiaries of the regulatory program the lawyers.
Assuming that the questioned provision does in a sense compel a lawyer
to be a member of the Integrated Bar, such compulsion is justified as an
exercise of the police power of the state.
2. The second issue posed by the respondent is that the provision of the
Court Rule requiring payment of a membership fee is void. We see
nothing in the Constitution that prohibits the Court, under its
constitutional power and duty to promulgate rules concerning the
admission to the practice of law and the integration of the Philippine Bar
(Article X, Section 5 of the 1973 Constitution) which power the
respondent acknowledges from requiring members of a privileged
class, such as lawyers are, to pay a reasonable fee toward defraying the
expenses of regulation of the profession to which they belong. It is quite
apparent that the fee is indeed imposed as a regulatory measure,
designed to raise funds for carrying out the objectives and purposes of
integration.
3. The respondent further argues that the enforcement of the penalty
provisions would amount to a deprivation of property without due process
and hence infringes on one of his constitutional rights. Whether the
practice of law is a property right, in the sense of its being one that
entitles the holder of a license to practice a profession, we do not here
pause to consider at length, as it clear that under the police power of the
PINEDAPCGRNMAN
State, and under the necessary powers granted to the Court to
perpetuate its existence, the respondent's right to practice law before the
courts of this country should be and is a matter subject to regulation and
inquiry. And, if the power to impose the fee as a regulatory measure is
recognize, then a penalty designed to enforce its payment, which penalty
may be avoided altogether by payment, is not void as unreasonable or
arbitrary.
But we must here emphasize that the practice of law is not a property
right but a mere privilege, and as such must bow to the inherent
regulatory power of the Court to exact compliance with the lawyer s
public responsibilities.
4. Relative to the issue of the power and/or jurisdiction of the Supreme
Court to strike the name of a lawyer from its Roll of Attorneys, it is
sufficient to state that the matters of admission, suspension, disbarment
and reinstatement of lawyers and their regulation and supervision have
been and are indisputably recognized as inherent judicial functions and
responsibilities, and the authorities holding such are legion.
In In Re Sparks (267 Ky. 93, 101 S.W. (2d) 194), in which the report of
the Board of Bar Commissioners in a disbarment proceeding was
confirmed and disbarment ordered, the court, sustaining the Bar
Integration Act of Kentucky, said: The power to regulate the conduct and
qualifications of its officers does not depend upon constitutional or
statutory grounds. It is a power which is inherent in this court as a court
appropriate, indeed necessary, to the proper administration of justice
. . . the argument that this is an arbitrary power which the court is
arrogating to itself or accepting from the legislative likewise
misconceives the nature of the duty. It has limitations no less real
because they are inherent. It is an unpleasant task to sit in judgment
upon a brother member of the Bar, particularly where, as here, the facts
are disputed. It is a grave responsibility, to be assumed only with a
profession and to protect the public from overreaching and fraud. The
very burden of the duty is itself a guaranty that the power will not be
misused or prostituted. . ."
The Court's jurisdiction was greatly reinforced by our 1973 Constitution
when it explicitly granted to the Court the power to "promulgate rules
concerning pleading, practice . . . and the admission to the practice of
law and the integration of the Bar . . ." (Article X, Sec. 5(5) the power to
pass upon the fitness of the respondent to remain a member of the legal
profession is indeed undoubtedly vested in the Court.
We thus reach the conclusion that the provisions of Rule of Court 139-A
and of the By-Laws of the Integrated Bar of the Philippines complained
of are neither unconstitutional nor illegal. cdll
WHEREFORE, premises considered, it is the unanimous sense of the
Court that the respondent Marcial A. Edillon should be as he is hereby
disbarred, and his name is hereby ordered stricken from the Roll of
Attorneys of the Court.
IV. CODE OF PROFESSIONAL RESPONSIBILITY
THE LAWYER AND SOCIETY
CANON 1: PROMOTE AND RESPECT, LAW AND LEGAL PROCESS
A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE
LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW OF AND
LEGAL PROCESSES.
[G.R. Nos. 79690-707. October 7, 1988.]
ENRIQUE A. ZALDIVAR, petitioner, vs. THE HONORABLE
SANDIGANBAYAN and HONORABLE RAUL M. GONZALES, claiming
to be and acting as Tanodbayan-Ombudsman under the 1987
Constitution, respondents.
[G.R. Nos. 80578. October 7, 1988.]
Page 38
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
ENRIQUE A. ZALDIVAR, petitioner, vs. HON. RAUL M. GONZALES,
claiming to be and acting as Tanodbayan-Ombudsman under the 1987
Constitution, respondent.
DECISION
PER CURIAM p:
The following are the subjects of this Resolution:
1) a Motion, dated 9 February 1988, to Cite in Contempt filed by
a petitioner Enrique A. Zaldivar against public respondent Special
Prosecutor (formerly Tanodbayan) Raul M. Gonzales, in connection with
G.R. Nos. 79690-707 and G.R. No. 80578, and 2) a Resolution of this
Court dated 2 May 1988 requiring respondent Hon. Raul Gonzalez to
show cause why he should not be punished for contempt and/or
subjected to administrative sanctions for making certain public
statements.
I 80578, the Office of the Tanodbayan instituted Criminal Case No. 12570
The pertinent facts are as follows:
Petitioner Zaldivar is one of several defendants in Criminal Cases Nos.
12159-12161 and 12163-12177 (for violation of the Anti-Graft and
Corrupt Practices Act) pending before the Sandiganbayan. The Office of
the Tanodbayan conducted the preliminary investigation and filed the
criminal informations in those cases (originally TBP Case No. 86-00778).
On 10 September 1987, petitioner filed with this Court a Petition for
Certiorari, Prohibition and Mandamus (G.R. Nos. 79690-707) naming as
respondents both the Sandiganbayan and Hon. Raul M. Gonzalez.
Among other things, petitioner assailed: (1) the 5 February 1987
Resolution 1 of the Tanodbayan" recommending the filing of criminal
informations against petitioner Zaldivar and his co-accused in TBP Case
No. 86-00778; and (2) the 1 September 1987 Resolution 2 of the
Sandiganbayan in Criminal Case Nos. 12159-12161 and 12163-12177
denying his Motion to Quash the criminal informations filed in those
cases by the "Tanodbayan." In this respect, petitioner alleged that
respondent Gonzales, as Tanodbayan and under the provisions of the
1987 Constitution, was no longer vested with power and authority
independently to investigate and to institute criminal cases for graft and
corruption against public officials and employees, and hence that the
informations filed in Criminal Cases Nos. 12159-12161 and 12163-
12177 were all null and void.
On 11 September 1987, this Court issued a Resolution, which read:
"G.R. Nos. 79690-707 (Enrique A. Zaldivar vs. The Honorable
Sandiganbayan and Honorable Raul M. Gonzalez, Claiming To Be and
Acting as Tanodbayan-Ombudsman under the 1987 Constitution).
Acting on the special civil action for certiorari, prohibition and mandamus
under Rule 65 of the Rules of Court, with urgent motion for preliminary
injunction, the Court Resolved, without giving due course to the petition,
to require the respondents to COMMENT thereon, within ten (10) days
from notice.
The Court further Resolved to ISSUE a TEMPORARY RESTRAINING
ORDER, effective immediately and continuing until further orders from
this Court, ordering respondent Sandiganbayan to CEASE and DESIST
from hearing and trying Criminal cases Nos. 12159 to 12161 and 12163
to 12177 insofar as petitioner Enrique Zaldivar is concerned and from
hearing and resolving the Special Prosecutor's motion to suspend dated
September 3, 1987."
The parties later filed their respective pleadings.
Petitioner Zaldivar filed with the Court a second Petition for Certiorari and
Prohibition (G.R. No. 80578) on 19 November 1987, initially naming only
Hon. Raul M. Gonzalez as respondent. The Petition assailed the 24
September 1987 Resolution 3 of the "Tanodbayan" in TBP Case No. 87-
01304 recommending that additional criminal charges for graft and
PINEDAPCGRNMAN
corruption be filed against petitioner Zaldivar and five (5) other
individuals. Once again, petitioner raised the argument of the
Tanodbayan's lack of authority under the 1987 Constitution to file such
criminal cases and to investigate the same. Petitioner also moved for the
consolidation of that petition with G.R. No. 79690-707.
In a Resolution dated 24 November 1987, 4 this Court, without giving
due course to the second petition: (1) required respondent Gonzales to
submit Gonzalez to submit a comment thereon: and (2) issued a
temporary restraining order "ordering respondent Hon. Raul M. Gonzalez
to CEASE and DESIST from further acting in TBP Case No. 87-01394 .
. . and particularly, from filing the criminal information consequent thereof
and from conducting preliminary investigation therein." In a separate
resolution of the same date, 5 G.R. Nos. 79690-707 and G.R. No. 80578
were ordered consolidated by the Court.
In the meantime, however, on 20 November 1987 or four (4) days prior
to issuance by this Court of a temporary restraining order in G.R. No.
6 with the Sandiganbayan, which issued on 23 November 1987 an Order
of Arrest 7 for petitioner Zaldivar and his co-accused in Criminal Case
No. 12570. Upon Motion 8 of petitioner Zaldivar, this Court issued the
following Resolution on 8 December 1987.
"G.R. No. 80578 (Enrique A. Zaldivar vs. Hon. Raul M. Gonzalez and
Sandiganbayan). The motion filed by the Solicitor General for
respondents for extensions of thirty (30) days from the expiration of the
original period within which to file comment on the petition for certiorari
and prohibition with prayer for a writ of preliminary injunction or
restraining order is GRANTED.
Acting on the manifestation with motion to treat the Sandiganbayan as
party-respondent, the Court Resolved to (a) Consider IMPLEADED the
Sandiganbayan as party respondent; and (b) In pursuance of and
supplementing the Temporary Restraining Order of November 24, 1987
ordering respondent Hon Raul M. Gonzalez to CEASE and DESIST from
further acting TBP No. 87-01304 entitled, "Commission on Audit vs. Gov.
Enrique Zaldivar, et al., and particularly, from filing the criminal
information consequent thereof and from conducting preliminary
investigation therein" ISSUE a TEMPORARY RESTRAINING ORDER
effective immediately and continuing until further orders from this Court,
ordering respondents Hon. Raul M. Gonzalez and Sandiganbayan to
CEASE and DESIST from further acting in Criminal case No. 12570,
entitled, "People of the Philippines vs. Enrique M. Zaldivar, et al.' and
from enforcing the order of arrest issued by the Sandiganbayan in said
case."
The Solicitor general filed a Comment 9 on the petition in G.R. No.
80578, and we required the petitioner to submit a Reply 10 thereto.
On 9 February 1988, petitioner Zaldivar filed with the Court a Motion to
Cite in Contempt 11 directed at respondent Gonzalez. The Motion cited
as bases the acts of respondent Gonzalez in: (1) having caused the filing
of the information against petitioner in Criminal case No. 12570 before
the Sandiganbayan; and (2) issuing certain allegedly contemptuous
statements to the media in relation to the proceedings in G.R. No. 80578.
In respect of the latter, petitioner annexed to his Motion a photocopy of
a news article, reproduced here in toto, which appeared in the 30
November 1987 issue of the "Philippine daily Globe."
Tanod Scores SC for Quashing Graft Case
TANODBAYAN Justice Raul M. Gonzalez said yesterday the Supreme
Court order stopping him from investigating graft cases involving Antique
Gov. Enrique Zaldivar "can aggravate the thought that affluent persons
can prevent the progress of a trial.'
'What I am afraid of (with the issuance of the order) is that it appears that
Page 39
while rich and influential persons get favorable actions from the Supreme
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LEGAL ETHICS
Court, it is difficult for an ordinary litigant to get his petition to be given
due course.' Gonzales told the Daily Globe in an exclusive interview.
Gonzalez said the high tribunal's order 'heightens the people's
apprehension over the justice system in this country, especially because
the people have been thinking that only the small fry can get it while big
fishes go scot-free.'
Gonzalez was reacting to an order issued by the tribunal last week after
Zaldivar petitioned the court to stop the Tanodbayan from investigating
graft cases filed against him.
Zaldivar had charged that Gonzalez was biased in his investigations
because the latter wanted to help promote the political fortunes of a
friend from Antique, lawyer Bonifacio Alentajan.
Acting on Zaldivar's petition, the high court stopped Gonzalez from
investigating a graft charge against the governor, and from instituting any
complaint the Sandiganbayan.
'While President Aquino had been prodding me to prosecute graft cases
even if they involve the high and mighty, the Supreme Court had been
restraining me.' Gonzalez said.
In accordance with the President's order, Gonzalez said he had filed graft
cases against two 'very powerful' officials of the Aquino government
Commissioner Quintin Doromal of the Presidential Commission on Good
Government and Secretary Jiamil I.M. Dialan of the Office of Muslim
Affairs and Cultural Communities.
'While I don't with to discuss the merits of the Zaldivar petition before the
Supreme Court, I am a little bit disturbed that (the order) can aggravate
the thinking of some people that affluent persons can prevent the
progress of a trial,' he said.
He disclosed that he had a talk with the Chief Executive over the
weekend and that while she symphatizes with local officials who are
charged in court during election time, 'she said that it might be a
disservice to the people and the voters who are entitled to know their
candidates.'
Gonzalez said that while some cases against local against local officials
during election time could be mere harassment's suits, the Constitution
makes it a right of every citizen to be informed of the character of the
candidate, who should be subject to scrutiny."(Italics supplied)
Acting on petitioner's Motion to Cite in Contempt, the Court on 16
February 1988 required respondent Gonzalez "to COMMENT on
aforesaid Motion within ten (10) days from notice." 12
On 27 April 1988 , the Court rendered its Decision 13 (per curiam) in the
Consolidated Petitions. The dispositive portion thereof read:
"WHEREFORE, We hereby:
(1) GRANT the consolidated petitions filed by petitioner Zaldivar
and hereby NULLIFY the criminal informations filed against him in the
Sandiganbayan; and
(2) ORDER respondent Raul Gonzalez ro cease and desists
from conducting investigations and filing criminal cases with the
Sandiganbayan or otherwise exercising the powers and functions of the
Ombudsman.
SO ORDERED."
A Motion for Reconsideration 14 was filed by respondent Gonzalez the
next day, 28 April 1988. In his Motion, respondent Gonzalez, after having
argued the legal merits of his position, made the following statements
totally unrelated to any legal issue raised either in the Court's Decision
or in his own Motion:
1. That he "ha(d) been approached twice by a leading member
of the court . . . and he was asked to 'go slow' on Zaldivar and 'not to be
too hard on him;'"
PINEDAPCGRNMAN
2. That he "was approached and asked to 'refrain' from
investigating the COA report on illegal disbursements in the Supreme
Court because 'it will embarrass the Court; '" and
3. That "(i)n several instances, the undersigned respondent was
called over the phone be a leading member of the Court and was asked
to dismiss the cases against (two Members of the Court)."
Respondent Gonzalez also attached three (3) handwritten notes 15
which he claimed were sent by "some members of this Honorable Court,
interceding for cases pending before this office (i. e., the Tanodbayan)."
He either released his Motion for Reconsideration with facsimiles of said
notes to the press or repeated to the press the above extraneous
statements: the metropolitan papers for the next several days carried
long reports on those statements and variations and embellishments
thereof.
On 2 May 1988, the Court issued the following Resolution in the
Consolidated Petitions:
"G.R. No. 79690-707 (Enrique Zaldivar vs. The Hon. Sandiganbayan, et
al.); G.R. No. 80578 (Enrique A. Zaldivar vs. Hon. Raul M. Gonzalez,
etc.).
1. Acting on the Motion for Reconsideration filed by respondent
Gonzalez under date of April 28, 1988, the Court Resolved to REQUIRE
the petitioner to COMMENT thereon within ten (10) days from notice
hereof.
2. It appearing that respondent Raul M. Gonzalez has made
public statements to the media which not only deal with matters sub-
judice but also appear offensive to and disrespectful of the Court and its
individual members and calculated, directly or indirectly, to bring the
Court into disrepute, discredit and ridicule and to denigrate and degrade
the administration of justice, the Court Resolved to require respondent
Gonzalez to explain in writing within ten (10) days from notice hereof,
why he should not be punished for contempt of court and/or subjected to
administrative sanctions for making such public statements reported in
the media, among others, in the issues of the 'Daily Inquirer,' the
'Journal,' the 'Manila Time,' the 'Philippine Star,' the 'Manila Chronicle,'
the 'Daily Globe' and the 'Manila Standard' of April 29 and 30, and May
1, 1988, to wit:
(a) That the Court resolution in question is merely 'an offshoot of
the position he had taken that SC Justices cannot claim immunity from
suit or investigation by government prosecutors,' or motivated by a desire
to stop him 'from investigating cases against some of their portages or
friends;'
(2) That no less than six of the members of the Court 'interceded
for and on behalf of persons with pending cases before the Tanodbayan,'
or sought 'to pressure him to render decisions favorable to their
colleagues and friends;'
(c) That attempts were made to influence him 'to go slow' on
Zaldivar and 'not to be too hard on him,' and 'to refrain' from investigating
the Commission on Audit report on illegal disbursements in the Supreme
Court because 'it will embarrass the Court;'
(d) That there were also attempts to cause the dismissal of cases
against two Associate Justices; and
(e) That the Court had dismissed judges 'without rhyme or
reason' and disbarred lawyers 'without due process.'
3. It further appearing that three (3) affidavits relative to the
purpose of and circumstances attendant upon the notes written to said
public respondent by three (3) members of the Court have since been
submitted to the Court and now form part of its official records, the Court
further Resolved to require the Clerk of Court to ATTACH to this
Resolution copies of said sworn statements and the annexes thereto
Page 40
appended, and to DIRECT respondent Gonzalez also to comment
thereon within the same period of ten(10) days.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
4. It finally appearing that notice of the Resolution of February
16, 1988 addressed to respondent Gonzalez was misdelivered and
therefore not served on him, the Court Resolved to require the Clerk of
Court to CAUSE SERVICE of said Resolution on the respondent and to
REQUIRE the latter to comply therewith."
Respondent Gonzalez subsequently filed with this Court on 9 May 1988
an Omnibus Motion for Extension and Inhibition 16 alleging, among other
things: that the above quoted 2 May 1988 Resolution of the Court
"appears to have overturned that presumption [of innocence] against
him;" and that "he gravely doubts whether that 'cold neutrality [of an
impartial judge]' is still available to him" there being allegedly "at least 4
members of this Tribunal who will not be able to sit in judgment with
substantial sobriety and neutrality." Respondent Gonzalez closed out his
pleading with a prayer that the four (4) Members of the Court identified
and referred to there by him inhibit themselves in the deliberation and
resolution of the Motion to Cite in Contempt.
On 19 may 1988, 17 after receipt of respondent's Supplemental Motion
for Reconsideration, 18 this Court in an extended per curiam Resolution
19 denied the Motion and Supplemental Motion for Reconsideration.
That denial was made "final and immediately executory."
Respondent Gonzalez has since then filed the following pleadings of
record:
1. Manifestation with Supplemental Motion to Inhibit, 20 dated
23 May 1988;
2. Motion to Transfer Administrative Proceedings to the
Integrated Bar of the Philippines, 21 dated 20 May 1988;
3. Urgent Motion for Additional Extension of Time to File
Explanation Ex Abundante Cautelam, 22 dated 26 May 1988;
4. Urgent Ex-Parte Omnibus Motion
(a) For Extension of Time
(b) For Inhibition, and
(c) For Transfer of Administrative Proceedings to the IBP, Under
Rule 139-B, 23 dated 4 June 1988 (with Annex "A;' 24 an anonymous
letter dated 27 May 1988 from the alleged Concerned Employees of the
Supreme Court" and addressed to respondent);
5. Ex-Parte Manifestation, 25 dated 7 June 1988;
6. Urgent Ex-Parte Motion for Reconsideration, 26 dated 6 June
1988; and
7. Urgent Ex-Parte Manifestation with Motion 27 dated 23
September 1988.
In compliance with the 2 may 1988 Resolution of this Court quoted
earlier, respondent Gonzalez submitted on 17 June 1988 an Answer with
Explanation and Comment 28 offering respondent's legal arguments and
defenses against the contempt and disciplinary charges presently
pending before this Court. Attached to that pleading as Annex "A" thereof
was respondent's own personal Explanation/Compliance. 29 A second
explanation called "Compliance," 30 with annexes, was also submitted
by respondent on 22 July 1988.
II
We begin be referring to the authority of the Supreme Court to discipline
officers of the court and members of the court and members of the Bar.
The Supreme Court, as regular and guardian of the legal profession, has
plenary disciplinary authority over attorneys. The authority to discipline
lawyers stems from the Court's constitutional mandate to regulate
admission to the practice of law, which includes as well authority to
regulate the practice itself of law. 31 Quite apart from this constitutional
mandate, the disciplinary authority of the Supreme Court over members
of the Bar is an inherent power incidental to the proper administration of
justice and essential to an orderly discharge of judicial functions. 32
Moreover, the Supreme Court has inherent to punish for contempt, to
control in the furtherance of justice the conduct of ministerial officers of
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the Court including lawyers and all other persons connected in any
manner with a case before the Court. 33 The power to punish for
contempt is "necessary for its own protection against an improper
interference with the due administration of justice, " "(it) is not dependent
upon the complaint of any of the parries litigant." 34
There are, in other words, two (2) related powers which come into play
in cases like that before us here; the Court's inherent power to discipline
attorneys and the contempt power. The disciplinary authority of the Court
over members of the Bar is broader that the power to punish for
contempt. Contempt of court may be committed both by lawyers and
non-lawyers, both in and out of court. Frequently, where the contemnor
is a lawyer, the contumacious conduct also constitutes professional
misconduct which calls into play the disciplinary authority of the Supreme
Court. 35 Where the respondent is a lawyer, however, the Supreme
Court's disciplinary authority over lawyers may come into play whether
or not the misconduct with which the respondent is charged also
constitutes contempt of court. The powers to punish for contempt of court
does not exhaust the scope of disciplinary authority of the Court over
lawyers. 36 The disciplinary authority of the Court over members of the
Bar is but corollary to the Court's exclusive power of admission to the
Bar. A lawyers is not merely a professional but also an officer of the court
and as such, he is called upon to share in the task and responsibility of
dispensing justice and resolving disputes in society. Any act on his part
which visibly tends to obstruct, pervert, or impede and degrade the
administration of justice constitutes both professional misconduct calling
for the exercise of disciplinary action against him and contumacious
conduct warranting application of the contempt power.
It is sometimes asserted that in the exercise of the power to punish for
contempt or to the disciplinary authority of the Court over members of
the Bar, the Court is acting as offended party, prosecutor and arbiter at
one and the same time. Thus, in the present case, respondent Gonzalez
first sought to get some members of the Court to inhibit themselves in
the resolution of this case for alleged bias and prejudice against him. A
little later, he in effect asked the whole Court to inhibit itself from passing
upon the issues involved in this proceeding and to pass on responsibility
for this matter to the Integrated Bar of the Philippines, upon the ground
that respondent cannot expect due process from this Court, that the
Court has become incapable of judging him impartially and fairly.
Respondent Gonzalez misconceives the nature of the proceeding at bar
as well as the function of the members of the Court in such proceeding.
Respondent's contention is scarcely an original one. In In Re Almacen,
37 then Associate (later Chief) Justice Fred Fruiz Castro had occasion
to deal with this contention in the following lucid manner:
"xxx xxx xxx
It is not accurate to say, nor is it an obstacle to the exercise of our
authority in the premises, that, as Atty. Almacen would have it appear,
the members of the Court are the 'complaints, prosecutors and judges'
all rolled up into one in this instance. This is an utter misapprehension, if
not a total distortion, not only of the nature of the proceeding at hand but
also of our role therein.
Accent should be laid on the fact that disciplinary proceedings like the
present are sui generis. Neither purely civil nor purely criminal, this
proceeding is not and does not involve a trial of an action or a suit,
but is rather an investigation by the Court into the conduct of its officers.
Not being intended to inflict punishment, it is in no sense a criminal
prosecution. Accordingly, there is neither a plaintiff nor a prosecutor
there. It may be initiated by the Court motu proprio. Public interest is its
primary objective, and the real question for determination is whether or
not the attorney is still a fit person to be allowed the privileged as such.
Page 41
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
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LEGAL ETHICS
the Court with the end in view of preserving the purity of the legal
profession and the proper and honest administration of justice by purging
the profession of members who by their misconduct have proved
themselves no longer worthy to be entrusted with the duties and
responsibilities pertaining to the office of an attorney. In such posture,
there can thus be no occasion to speak of a complainant or a prosecutor.
Undeniably, the members of the Court are, to a certain degree, aggrieved
parties. Any tirade against the individual members thereof. But in the
exercise of its disciplinary powers, the Court acts as an entity separate
and distinct from the individual personalities of its members. Consistently
with the intrinsic nature of a collegiate court, the individual members act
not as such individuals as a duly constituted court. The distinct
individualities are lost in the majesty of their office. So that, in a very real
sense, if there be any complainant in the case at bar, it can only by the
Court itself, not the individual members thereof as well as the people
themselves whose rights, fortunes and properties, may, even lives,
would be placed at grave hazard should the administration of justice be
threatened by the retention in the Bar of men unfit to discharge the
solemn responsibilities of membership in the legal fraternity.
Finally, the power to exclude persons from the practice of law is but a
necessary incident of the power to admit persons to said practice. By
constitutional precept, this power is vested exclusively in this Court. This
duty it cannot abdicate just as much as it cannot unilaterally renounce
jurisdiction legally invested upon it. So that even if it be concede that the
members collectively are in a sense the aggrieved parties, that fact alone
does not and cannot disqualify them from the exercise of the power
because public policy demands that they, acting as a Court, exercise the
power in all cases which call for disciplinary action. The present is such
a case. In the end, the imagined anomaly of the merger in one entity of
the personalities of complaint, prosecutor and judge is absolutely
inexistent.
xxx xxx xxx." 38
It should not be necessary for the members of this Court expressly to
disclaim any bias or prejudice against the respondent that would prevent
them from the acting in accordance with the exacting requirements of
their oaths of office. It also appears to the Court that for all the members
to inhibit themselves from sitting on this case is to abdicate the
responsibility with which the Constitution has burdened the. Reference
of complaints against attorneys either to the Integrated Bar of the
Philippines or to the Solicitor General is not mandatory upon the
Supreme Court; such reference to the Integrated Bar of the Philippines
or to the Solicitor General is certainly not an exclusive procedure under
the terms of Rule 139-B of the Revised Rules of Court, especially where
the charge consists of acts done before the Supreme Court. There is no
need for further investigation of facts in the present case for it is not
substantially disputed by respondent Gonzalez that he uttered or wrote
certain statements attributed to him. In any case, respondents had the
amplest opportunity to present his defense; his defense is not that he did
not make the statements ascribed to him but that those statements give
rise to no liability on his party, having been made in the exercise of his
freedom of speech. The issues which thus need to be resolved here are
issues of law and of basic and the Court, not any other agency, is
compelled to resolve such issues.
III
It is necessary to become very explicit as to what respondent Gonzalez
was saying in his statements set out above. Respondent has not denied
making the above statements; indeed, he acknowledges that the
newspaper reports of the statements attributed to him are substantially
correct. 39
Respondent Gonzalez was in effect saying, firstly, that the Supreme
Court deliberately rendered an erroneous or wrong decision when it
PINEDAPCGRNMAN
rendered its per curiam Decision dated 27 April 1988 in G.R. Nos. 79690-
707 and 80578. That decision according to respondent Gonzales, was
issued as an act of retaliation by the Court against him for the position
he had taken "that the (Supreme Court) Justices cannot claim immunity
from suit or investigation by government prosecutors," and in order to
stop respondent from investigating cases against "some of (the)
proteges or friends (of some Supreme Court Justices)." The Court
cannot, of course, and will not debate the correctness of its Decision of
27 April 1988 and of its Resolution dated 19 May 1988 (denying
respondent Gonzalez' Motion for Reconsideration) in the consolidated
Zaldivar case. Respondent Gonzalez, and anyone else for that matter,
is free intellectually to accept or not accept the reasoning of the Court
set out in its per curiam Decision and Resolution in the consolidated
Zaldivar cases. This should not, however, obscure the seriousness of the
assault thus undertaken by respondent against the Court and the
appalling implications of a such assault for the integrity of the system of
administration of justice in country. Respondent has said that the Court
rendered it Decision and Resolution without regard to the legal merits of
the Zaldivar cases and had used the judicial process to impose private
punishment upon respondent for positions he had taken (unrelated to the
Zaldivar cases) in carrying out his duties. It is very difficult to imagine a
more serious affront to, or greater outrage upon, the honor and dignity of
this Court that this. Respondent's statements is also totally baseless.
Respondent's statements were made in complete disregard of the fact
that his continuing authority to act as Tanodbayan or Ombudsman after
the effectivity of the 1987 Constitution, had been questioned before this
Court as early as 10 September 1987 in the Petition for Certiorari,
Prohibition and Mandamus filed against him in these consolidated
Petitions, 40 that is more than seven (7) months before the Court
rendered its Decision. Respondent also ignores the fact that one day
later, this Court issued a Temporary Restraining Order effective
immediately Sandiganbayan to cease and desist from hearing the
criminal cases filed against petitioner Zaldivar by respondent Gonzalez
Respondent also disregards the fact that on 24 November 1987, upon
the filing of a second Petition for Certiorari for Prohibition by Mr. Zaldivar,
the Court issued a Temporary Restraining Order this time requirement
the respondent to cease and desist from further acting in TBP Case No.
87-0934. Thus, the decision finally reached by this Court in April 1988 on
the constitutional law issue pending before the Court for the preceding
eight (8) months, could scarcely have been invented as a reprisal simply
against respondent.
A second charge that respondent Gonzalez hurled against members of
the Supreme Court is that they have improperly "pressured" him render
decisions favorable to their "colleagues and friends," including dismissal
of "cases" against two (2) members of the Court. This particularly
deplorable charge too is entirely baseless, as even a cursory
examination of the contents of the handwritten notes of three (3)
members of this Court addressed to respondent (which respondent
attached to his Motion for Reconsideration of the Decision of this Court
of 27 April 1988 in the consolidated Petitions) will show. It is clear, and
respondent Gonzalez does not pretend otherwise, that the subject
matters of the said notes had no relation at all to the issues in G.R. Nos.
79690-707 and 80578. This charge appears to have made in order to try
to impart some substance (at least in the mind of respondent) to the first
accusation made by respondent that the Court had deliberately rendered
a wrong decision to get even with respondent who had, with great
fortitude, resisted "pressure" from some members of the Court. Once
again, in total effect, the statements made by respondent appear
designed to cast the Court into gross disrepute, and to cause among the
Page 42
general public scorn for and distrust in the Supreme Court and, more
generally, the judicial institutions of the Republic.
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LEGAL ETHICS
Respondent Gonzalez has also asserted that the Court was preventing
him from prosecuting "rich and powerful persons," that the Court was in
effect discriminating between the rich and powerful on the one hand and
the poor and defenseless upon the other, and allowing "rich and
powerful" accused persons to go "scot-free" while presumably allowing
or affirming the conviction of poor and small offenders. This accusation
can only be regarded as calculated to present the Court in an extremely
bad light. It may be seen as intended to foment hatred against the
Supreme Court; it is also suggestive of the divisive tactics of
revolutionary class war.
Respondents, finally, assailed the Court for having allegedly "dismissed
judges 'without rhyme or reason' and disbarred lawyers 'without due
process.'" The Court notes that this last attacks is not without relation to
the other statements made by respondent against the Court. The total
picture that respondent clearly was trying to paint of the Court is that of
an "unjudicial" institution able and willing to render "clearly erroneous"
decisions by way of reprisal against its critics, as a body that acts
arbitrarily and capriciously denying judges and lawyers due process of
law. Once again, the purport of respondent's attack against the Court as
an institution unworthy of the people's faith and trusty, is unmistakable.
Had respondent undertaken to examine the records of the two(2) judges
and the attorney he later identified in one of his Explanations he would
have discovered that the respondents in those administrative cases had
ample opportunity to explain their side and submit evidence in support
thereof. 41 He would have also found that there were both strong
reasons for and an insistent rhyme in the disciplinary measures there
administered by the Court in the continuing effort to strengthen the
judiciary and upgrade the membership of the Bar. It is appropriate to
recall in this connection that due process as a constitutional precept does
not, always and in all situations, require the trial-type proceeding, 42 that
the essence of due process is to be found in the reasonable opportunity
to be heard and to submit any evidence one may have in support' of
one's defense. 43 "To be heard" does not only mean verbal arguments
in court; one may be heard also through pleadings. Where opportunity to
be heard, either through oral arguments or pleadings, is accorded, there
is no denial of procedural due process. 44
As noted earlier, respondent Gonzalez was required by the Court to
explain why he should not be punished for contempt and/or subjected to
administrative discipline for making the statements adverted to above. In
his subsequent pleadings where asked the full Court to inhibit itself and
to transfer the administrative proceedings to the Integrated Bar of the
Philippines, respondent made, among others, the following allegations:
(a) That the Members of the Court "should inhibit [themselves] in
the contempt and administrative charges against the respondent, in the
light of the manifest prejudice and anger they hold against respondents
as shown in the language of the resolution on the Motion for
Reconsideration;' (b) That "the entire membership of the court has
already lost that 'cold neutrality of an impartial judge' [to] be able to allow
fairness and due process in the contempt citation as well as in the
possible administrative charge;"
(c) That "respondent honestly feels that this court as angry and
prejudiced as it is, respondent has no china man's chance to get fair
hearing in the contempt and possible administrative charges;"
(d) That one must consider "the milieu before this Tribunal with,
perhaps passion and obfuscation running riot;"
(e) That respondent, "after having been castigated with such
venom by the entire Court in its decision denying the Motion for
Reconsideration, does not have confidence in the impartiality of the
entire Court" and that he "finds it extremely difficult to believe that the
members of this Tribunal can still act with unbiased demeanor towards
him; and
PINEDAPCGRNMAN
(f) That "the Tribunal is determined to disbar [respondent]
without due process" and that a specified Member of the court "has been
tasked to be the ponente, or at least prepare the decision."
(Underscoring in the original)
Thus, instead of explaining or seeking to mitigate his statements earlier
made, respondent sought to heap still more opprobrium upon the Court,
accusing it of being incapable of judging his acts and statements justly
and according to law. Once again, he paints this Court as a body not only
capable of acting without regard to due process but indeed determined
so to act. A grand design to hold up this Court to public scorn and
disrespect as an unworthy tribunal, one obfuscated by passion and
anger at respondent, emerges once more. It is very difficult for members
of this Court to understand how respondent Gonzalez could suppose that
judges on the highest tribunal of the land would be ready and willing to
violate their most solemn oath of office merely to gratify any imagined
private feelings aroused by respondent. The universe of the Court
revolves around the daily demands of law and justice and duty, not
around respondent nor any other person or group of persons.
Whether or not the statements made by respondent Gonzalez may
reasonably be regarded by this Court as contumacious or as warranting
exercise of the disciplinary authority of this Court over members of the
Bar, may best be assayed by examining samples of the kinds of
statements which have been held in our jurisdiction as constituting
contempt or otherwise warranting the exercise of the court's authority.
1. In Montecillo v. Gica, 45 Atty. Quirino del Mar as counsel for
Montecillo, who was accused in a slander case, moved to reconsider a
decision of the Court of Appeals in favor of the complainant with a veiled
threat that he should interpose his next appeal to the President of the
Philippines. In his Motion for Reconsideration, he referred to the
provisions of the Revised Penal Code on "knowingly rendering an unjust
judgment," and "judgment rendered through negligence" and implied that
the Court of Appeals had allowed itself to be deceived. Atty. del Mar was
held guilty of contempt of court by the Court of Appeals. He then sued
the three (3) justices of the Court of Appeals for damages before the
Court of First Instance of Cebu, seeking to hold them liable for their
decision in the appealed slender case. This suit was terminated,
however, by compromise agreement after Atty. del mar apologized to the
Court of Appeals and the justices concerned and agreed to pay moral
damages to the justice. Atty. del Mar some time later filed with this Court
a Petition for Review on Certiorari of a decision of the Court of Appeals
in a slander case. This Court denied the Petition for review. Atty. del Mar
then filed a Motion for reconsideration and addressed a letter to the Clerk
of the Supreme Court asking for the names of the justices of this Court
who had voted in favor of and those who had voted against his Motion
for Reconsideration. After his Motion for Reconsideration was denied
fore lack of merit, Atty. del Mar filed a Manifestation in this Court saying:
"I can at this time reveal to you that, had your Clerk of Court furnished
me with certified of the last two Resolutions of the supreme court
confirming the decision of the Court of Appeals in the case entitled
Francisco M. Gica vs. Jorge Montecillo, I would have filed against the
Justices supporting the same, civil and criminal suits as i did to the
justices of the Court of Appeals who, rewarding the abhorrent falsification
committed by Mr. Gica, reversed for him the decisions of the City Court
of First Instance of Cebu, not with a view to obtaining a favorable
judgment therein but for the purpose of exposing to the people the
corroding evils extant in our Government, so that they may well know
them and work for their extermination." (60 SCRA at 240' italics supplied)
Counsel was asked to explain why he should not be administratively
dealt with for making the above statements. In his additional explanation,
Page 43
Atty. del mar made the following statements:
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LEGAL ETHICS
". . . Graft, corruption and justice are rampant in and outside of the
Government. It is this state of things that convinced me that all human
efforts to correct and/or reform the said evils will be fruitless and as
stated in my manifestation to you. I have already decided to retire from
a life of militancy to a life of seclusion, leaving to God the filling-up
deficiencies." (60 SCRA at 242)
The Court suspended Atty. del mar, "until further orders," from the
practice of law saying:
". . . Respondent is utilizing what exists in his mind as state of graft,
corruption and injustice allegedly rampant in and outside of the
government as justification for his contemptuous statements. In other
words, he already assumed by his own contemptuous utterances that
because there is an alleged existence of rampant corruption, graft and
injustice in and out of the government, We, by Our act in G.R. No. L-
36800, are among the corrupt , the grafters and those allegedly
committing injustice. We are at a complete loss to follow respondent del
Mar's logic. . .
xxx xxx xxx
"To aged brethren of the bar it may appear belated to remind them that
second only to the duty of maintaining allegiance to the Republic of the
Philippines and to support the Constitution and obey the laws of the
Philippines, is the duty of all attorneys to observe and maintain the
respect due to the courts of justice and judicial officers (Sec. 20 (b) Rule
138, Rules of court). But We do remind them of said duty to emphasize
to their younger brethren its paramount importance. A lawyer must
always remember that he is an officer of the court exercising a high
privilege and serving in the noble mission of administering justice."
xxx xxx xxx
As already stated, the decision of the Court of Appeals in C.A. G.R. No.
45604-R was based on its evaluation of the evidence on only one specific
issue. We in turn denied in G.R. No. L-368000 the petition for review on
certiorari of the decision because We found no reason for disturbing the
appellate court's finding and conclusion. In both instances, both the
Court of Appeals and this Court exercised judicial discretion in a case
under respective jurisdiction. The intemperate and imprudent act of
respondent del Mar in resorting to veiled threats to make both Courts
reconsider their respective stand in the decision and the resolution that
spelled disaster for his client cannot be anything but pure contumely for
said tribunals.
It is manifest that respondent del mar has scant respect for the two
highest court of the hand when on the flimsy ground of alleged error in
deciding a case, he proceeded to challenge the integrity of both Courts
by claiming that they knowingly rendered unjust judgment. In short, his
allegation is that they acted with intent and malice, if not with gross
ignorance of the law, in disposing of the case of his client.
xxx xxx xxx
. . . To those who are in the practice of law and those who in the future
will choose to enter this profession. We with to point to this case as a
reminder for them to imprint in their hearts and minds that an attorney
owes it to himself to respect the courts of justice and its officers as a
fealty for the stability of our democratic institutions.: (60 SCRA at 242-
247; italic supplied)
2. In Surigao Mineral Reservation Board v. Cloribel, 46 four (4)
members of the bar, acting as counsels for MacArthur International
Minerals Company were required by this Court to explain certain
statements made in MacArthur's third Motion for Reconsideration:
"d. ' . . .; and the Supreme Court has overlooked the applicable
law due to the misrepresentation and obfuscation of the petitioners'
counsel.' (Last sentence, par. 1, Third Motion for Reconsideration dated
Sept. 10, 1968).
PINEDAPCGRNMAN
e. '. . . Never has any civilized democratic tribunal ruled that
such a gimmick (referring to the "right to reject any and all bids") can be
used by vulturous executives to cover and excuse losses to the public, a
government agency or just plain fraud . . . and it is thus difficult, in the
light of our upbringing and schooling, even under may of the incumbent
justices, that the Honorable supreme Court intends to create a decision
that in effect does precisely that in a most absolute manner.' (Second
sentence, par. 7, Third Motion for Reconsideration dated Sept. 10,
1968)." (31 SCRA at 6)
They were also asked to explain the statements made in their Motion to
inhibit filed on 21 September 1968 asking
"Mr. Chief Justice Roberto Concepcion and Mr. Justice Fred Ruiz Castro
to inhibit themselves from considering, judging and resolving the case or
any issue or aspect thereof retroactive to January 11, 1967. The motion
charges '[t]hat the brother of the Honorable Associate Justice Castro is
a vice-president of the favored party who is the chief beneficiary of the
false, erroneous and illegal decision dated January 31, 1968' and the ex-
parte preliminary injunction rendered in the above entitled case, the latter
in effect prejudging and predetermining this case even before the joining
of an issue. As to the Chief Justice, the motion states '[t]hat the son of
the Honorable Chief Justice Roberto to Conception was given a
significant appointment in the Philippine Government by the President a
short time before the decision of July 31, 1968 was rendered in this case.'
The appointment referred to was as secretary of the newly-created
Board of Investments. The motion presents a lengthy discourse on
judicial ethics, makes a number of side comments projecting what is
claimed to be the patent wrongfulness of the July 31, 1968 decision. It
enumerates 'incidents' which, according to the motion, brought about
respondent MacArthur's belief that 'unjudicial prejudice' had been
caused it and that there was 'unjudicial favoritism' in favor of 'petitioners,
their appointing authority and a favored party directly benefited by the
said decision.'" (31 SCRA at 6-7)
Another attorney entered his appearance as new counsel for MacArthur
and filed a fourth Motion for Reconsideration without leave of court,
which Motion contained the following paragraphs:]
"4. The said decision is illegal because it was penned by the
Honorable Chief Justice Roberto Concepcion when in fact he was
outside the borders of the Republic of the Philippines at the time of the
Oral Argument of the above-entitled case which condition is prohibited
by the new Rules of Court _ Section 1, Rule 51, and we quote" '
Justices; who may take part. . . . Only those members present when
any matter is submitted for oral argument will take part in its
consideration and adjudication . . .' This requirement is especially
significant in the present instance because the member who penned the
decision was the very member who was absent for approximately four
months or more. This provision also applies to the Honorable Justices
Claudio Teehankee and Antonio Barredo.
xxx xxx xxx
6. That if the respondent MacArthur International Minerals
Company abandons its quest for justice in the judiciary of the Philippine
Government, it will inevitably either raise the graft and corruption of
Philippine Government Officials in the bidding of May 12, 1965, required
by the Nickel law to determine the operator of the Surigao nickel
deposits, the World Court on grounds of deprivation of justice and
confiscation or property and/or to the United States Government either
its executive or judicial branches or both, on the grounds of confiscation
of respondent's proprietary vested rights by the Philippine Government
without either compensation or due process of law and invoking the
Hickenlooper Amendment requiring the cutting off of all aid and benefits
Page 44
to the Philippine Government, including the sugar price premium,
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
amounting to more than fifty million dollars annually, until restitution or
compensation is made." (31 SCRA at 10-11)
Finding their explanations unsatisfactory, the Court, speaking through
Mr. Justice Sanchez, held three (3) attorneys guilty of contempt:
"1. We start with the case of Atty. Vicente L. Santiago. In his third
motion for reconsideration, we indeed, find language that is not to be
expected of an officer of the courts. He pictures petitioners as 'vulturous
executives.' He speaks of this Court as a 'civilized, democratic tribunal,'
but by innuendo would suggest that it is not.
In his motion tom inhibit, his first paragraph categorizes our decision of
July 31, 1968 as 'false, erroneous and illegal' in a presumptuous manner.
He then charges that the ex parte preliminary injunction we issued in this
case prejudiced and predetermined the case even before the joining of
an issue. He accuses in a reckless manner two justices of this Court for
being interested in the decision of this case: Associate Justice Fred Ruiz
Castro, because his brother is the vice president of the favored party who
is the chief beneficiary of the decision, and Chief Justice Roberto
Concepcion, whose son was appointed secretary of the newly-created
Board of Investments, 'a significant appointment in the Philippine
Government by the President, a shortime before the decision of July 31
1968 was rendered.' In this backdrop, he proceeds to state that 'it would
seem that the principles thus established [the moral and ethical
guidelines for inhibition of any judicial authority] by the Honorable
Supreme Court should removed conditions have been known to create
favoritism, only to conclude that there is no reason for a belief that the
conditions obtaining in the case of the Chief Justice and justice Castro
'would be less likely to engender favoritism and prejudice for or against
a particular cause or party.' Implicit in this at least is that the Chief Justice
and Justice Castro are insensible to delicadeza, which could make their
actuation suspect. He makes it plain in the motion that the Chief Justice
and Justice Castro not only were not free from the appearance of
impropriety but did arouse suspicion that their relationship did affect their
judgment. He appoints out that courts must be above suspicion at all
times like Ceasar's wife, warns that loss of confidence for the Tribunal;
or a member thereof should not be allowed to happen in our country,
'although the process has already begun.'
xxx xxx xxx
What is disconcerting is that Atty. Santiago's accusations have no basis
in fact and in law. The slur made is not limited to the Chief Justice and
Justice Castro. It sweepingly casts aspersion on the whole court. For,
inhibition is also asked if, we repeated, 'any other justices who have
received favors or benefits directly or indirectly from any of the petitioners
or any members of any board-petitioner or their agents or principals,
including the president.' The absurdity of this posture is at once apparent.
For one thing, the justices of this Court are appointed by the President
and in that sense may be considered to have each received a favor from
the President. Should these justices inhibit themselves every time a case
involving the Administration crops up? Such a thought may not certainly
be entertained. The consequence thereof would be to paralyze the
machinery of this Court. we would in fact, be wreaking havoc on the
tripartite system of government operating in this country. Counsel is
presumed to know this But why the unfounded charge? There is the not-
too-well concealed effort on the part of a losing litigant's attorney to
downgrade this Court.
The mischief that system from all of the foregoing gross disrespect is
easy to discern. Such disrespect detracts much from the dignity of a court
of justice. Decidedly not an expression of faith, councel's words are
intended to create an atmosphere of distrust, of disbelief.
xxx xxx xxx
The precepts, the teachings, the injunctions just recited are not
unfamiliar to lawyers. And yet, this Court finds in the language of Atty.
PINEDAPCGRNMAN
Santiago a style that undermines and degrades the administration of
justice. The stricture in Section 3 (d) of Rule 71 of the Rules against
improper conduct tending to degrade the administration of justice is
thus transgressed. Atty. Santiago is guilty of contempt of court.
xxx xxx xxx
Third. The Motion contained an express threat to take the case to the
world Court and/or the United States government. It be member that
respondent MacArthur at that time was still trying to overturn the decision
of this Court of July 31, 1968. In doing so, unnecessary statements were
injected. More specifically, the motion announced that MacArthur 'will
inevitably . . . raise the graft and corruption of [the] Philippine government
officials in the bidding of May 12, 1965 . . . to the world Court' and would
invoke 'the Hickenlooper Amendment requiring the cutting off of all aid
and benefits to the Philippine Government, including the sugar price
premium, amount to more than fifty million dollars annually . . .'
This is a clear attempt to influence or bend the mind of this Court to
decide the case' in its favor. A notice of appeal to the World Court has
even been embodied in Meads' return. There is a gross inconsistency
between the appeal and the move to reconsider the decision. An appeal
from a decision presupposes that a party has already abandoned any
move to reconsider that decision. And yet, it would appear that the
appeal to the World Court is being dangled as threat to effect a change
of there decision of this Court. Such act has no aboveboard explanation.
xxx xxx xxx
The dignity of the court, experience teaches, can never be protected
where infraction of ethics meets with complacency rather than
punishment. The people should not be given cause to break faith with
the belief that a judge is the epitome of honor amongst men. To preserve
its dignity, a court of justice should not yield to the assaults of disrespect.
Punctilio of honor, we prefer to think, is standard of behavior so desirable
in a lawyer pleading as cause before a court of justice." (31 SCRA at 13-
23; italics supplied)
3. In In re Almacen, supra, Atty. Vicente Raul Almacen, in
protest against what he asserted was "a great injustice committed his
client by the Supreme Court," filed a Petition to Surrender Lawyer's
Certificate of Title. He alleged that his client was deeply aggrieved by
this Court's "unjust judgment," and had become "one of the sacrificial
victims before the altar of hypocrisy," saying that "justice as administered
by the presents members of the Supreme Court [was] not only blind, but
also deaf and dumb." Atty. Almacen vowed to argue the cause of his
client "in the people's forum" so that "the people may know of this silent
injustice committed by this Court" and that "whatever mistakes, wrongs
and injustices that were committed [may] never be repeated." Atty.
Almacen released to the press the contents of his Petition and on 26
September 1967, the "Manila Times" published statements attributed to
him as follows:
"Vicente Raul Almacen, in an unprecedented petition, said he did not
expose the tribunal's unconstitutional and obnoxious' practice of
arbitrarily denying petitions or appeals without any reason.
Because of the tribunal's 'short-cut justice.' Almacen deplored, his client
was condemned to pay P120, 000, without knowing why he least the
case.
xxx xxx xxx
There is no use continuing his law practice, Almacen said in this petition,
'where our Supreme Court is composed of men who are calloused to our
pleas of justice, who ignore without reason their own applicable
decisions and commit culpable violations of the Constitution with
impunity.'
xxx xxx xxx
Page 45
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
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
responsible to all cases brought to, its attention without discrimination,
and will purge itself of those unconstitutional and obnoxious "lack of
merit" or denied resolutions.'" (31 SCRA 1t 565-566; italics supplied)
Atty. Almacen was required by this Court to show cause why disciplinary
action should not be taken against hi. His explanation which in part read:
"xxx xxx xxx
The phrase, Justice is blind is symbolized in paintings that can be found
in all courts and government offices. We have added only two more
symbols, that it is also deaf and dumb. Deaf in the sense that no
members of this Court has ever heard our cries for charity, generosity,
fairness, understanding, sympathy and for justice; dumb in the sense,
that inspire of or beggings, supplications, and pleadings to give us
reasons why our appeals has been DENIED, not one word was spoken
or given . . . We refer to no human defect or ailment in the above
statement. WE only described the impersonal state of things and nothing
more.
xxx xxx xxx
As we have sated, we have lost our faith and confidence in the members
of this Court and for which reason we offered to surrender our lawyer's
certificate, IN TRUST ONLY. Because what has been lost today may be
regained tomorrow. As the offer was intended as our self-imposed
sacrifice, then we alone may decide as to when we must end our self-
sacrifice. If we have to choose between forcing ourselves to have faith
an confidence in the members of then Court but disregard our
Constitution and to uphold the Constitution and be condemned by the
members of this Court, there is no choice we must uphold the latter." (31
SCRA at 572; italics supplied)
was found by the Court to be "undignified and cynical" and rejected. The
Court indefinitely suspended Almacen from the practice of law holding
through Mr. Justice Fred Ruiz Castro, that Almacen had exceeded the
boundaries of "fair criticism."
4. In Paragas v. Cruz, 47 counsel, whose Petition for Certiorari
was dismissed by this Court, made the following statements in his Motion
for Reconsideration:
"The petitioner respectfully prays for a reconsideration of the resolution
of this Honorable Court dated April 20, 1965 on the ground that it
constitutes a violation of Section 14 of Rule 112 of the Rules of Court
promulgated by this very Hon. Supreme Court, and on the further ground
that is likewise a violation of the most important right in the bill of Rights
of the Constitution of the Philippines, a culpable violation which is a
ground for impeachment.
. . . The rule of law in a democracy should always be upheld and
protected by all means, because the rule of law creates and preserves
peace and order and gives satisfaction and contentment to all
concerned. But when the laws and the rules are violated, the victims
resort, sometimes, to armed force and to the ways of the cave-men! We
do not want Verzosa and Reyes repeated again and again, killed in the
premises of the Supreme Court and in those of the City Hall of Manila.
Educated people should keep their temper under control at all times! But
justice should be done to all concerned to perpetuate the very life of
Democracy on the face of the earth.'" (14 SCRA 1t 810; italics supplied)
The Court considered the above statements as derogatory to the dignity
of the Court and required counsel to show cause why administrative
action should not be taken against him. Counsel later explained that he
had merely related factual events (i.e., the killing of Verzosa and Reyes)
and to express his desire to avoid repetition of such acts. The Court,
through Mr. Justice J.B.L. Reyes, found these explanations
unsatisfactory and the above statements contumacious:
". . . The expressions contained in the motion fore reconsideration . . .
are plainly contemptuous and disrespectful, and reference to the recent
killing of two employees is but a covert threat upon the members of the
PINEDAPCGRNMAN
Court. . . That such treats and disrespectful language contained in a
pleading filed in courts are constitutive of direct contempt has been
repeatedly decided(Salcedo vs. Hernandez, 61 Phil,. 724; People vs.
Venturanza, 52 Off. Gaz. 769; Medina vs. Rivera, 66 Phil. 151; De Joya
vs. Court of First Instance of Rizal , L-9785, September 19, 1956; Sison
vs. Sandejas, L-9270, April 29, 1959; Lualhati vs. Albert, 57 Phil. 86).
What makes the present case more deplorable is that the guilty party is
a member of the bar; for, as remarked in People vs. Carillo, 77 Phil. 580
'Counsel should conduct himself towards the judges who try his cases
with that courtesy all have a right to expect. As an officer of the court, it
is his sworn and moral duty to help build and not destroy unnecessarily
that high esteem and regard towards the courts so essential to the proper
administration of justice.'
It is right and plausible that an attorney in defending the cause and rights
of his client, should do so with all the fervor and energy of which he is
capable, but it is not, and ever will be so, for him to exercise said by
resorting to intimidation or proceeding without the propriety and respect
which the dignity of the courts require. (Salcedo vs. Hernandez, [In re
Francisco], 61 Phil. 729)" (14 SCRA at 811-812; italics supplied)
5. In In re Sotto, 48 a newspaper reporter, Mr. Angel Parazo,
invoking the Press Freedom Law, refused to divulge the source of the
news item which carried his by-line and was sent to jail for so refusing.
Atty. Vicente Sotto, a senator and author of said law, caused the
publication of the following item in a number of daily newspapers in
Manila:
"As author of the Press Freedom Law (Republic Act No. 53), interpreted
by the Supreme Court in the case of Angel Parazo, reported of a local
daily, who now has suffer 30 days imprisonment, for his refusal to divulge
the source of a news published in his paper, I regret to say that our high
Tribunal has not only erroneously interpreted said law, but that it is once
more putting in evidence the incompetency or narrow mindedness of the
majority of its members. In the wake of so many blunders and injustices
deliberately committed during these last years, I believe that the only
remedy to put an end to so much evil, is to change the members of the
supreme Court. To this effect, I announce that one of the first measures,
which I will introduce in the coming congressional sessions, will have as
its object the complete reorganization of the supreme Court. As it is now
constituted, the Supreme Court of today constitutes a constant peril to
liberty and democracy. It need be said loudly,, very loudly, so that even
the deaf may hear: The supreme Court of today is a far cry from the
impregnable bulwark of justice of those memorable times of Cayetano
Arellano, Victorino Mapa, Manuel Araullo and other learned jurists who
were the honor and glory of the Philippine Judiciary." (82 Phil. at 597-
598; italics supplied)
In finding Atty. Sotto in contempt, despite his avowals of good faith his
invocation of the constitutional guarantee of free speech and in requiring
to show why he should not be disbarred, the Court, through Mr. Justice
Feria, said
"To hurl the false charged that this Court been for the last years
committing deliberately 'so many blunders and injustices,' that is to say,
that it has been deciding in favor of one party knowing that the law and
justice is on the part of the adverse party and not on the one in whose
favor the decision was rendered, in may cases decided during the last
years, would tend necessarily to undermine the confidence of the people
in the honesty and integrity of the members of this Court, and
consequently to lower and degrade the administration of justice by this
Court. The Supreme Court of the Philippine is, under the Constitution,
the last bulwark to which the filipino people may repair to obtain relied
Page 46
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
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
of the members of this court and believe that they cannot expect justice
therefrom, they might be driven to take the law into their hands, and
disorder and perhaps chaos might be the result. As a member of the bar
and an officer of the courts Atty. Vicente Sotto, like any other, is in duty
bound to uphold the dignity and authority of this Court, to which he owes
fidelity according to the oath he has taken as such attorney, and not to
promote distrust in the administration of justice. Respect to the courts
guarantees the stability of other institutions, without such guaranty would
be resting on a very shaky foundation." (82 Phil. at 601-602; italics
supplied)
6. In Salcedo v. Hernandez, 49 Atty. Vicente Francisco filed a
Motion before the supreme Court which contained the following
paragraph (in translation:
"We should like frankly and respectfully to make it of record that the
resolution of this court, denying our motion for reconsideration is
absolutely erroneous and constitutes an outrage to the rights of the
petitioner Felipe Salcedo and a mockery of the popular will expressed at
the polls in the municipality of Tiaong, Tayabas. We wish to exhaust all
the means within our power in order that this error may be corrected by
the very court which has committed it, because we should now want
some citizen. particularly some voter of the municipality of Tiaong,
Tayabas, resort to the press publicly to denounce, as he has a right to
do, the judicial outrage of which the herein petitioner has been the victim,
and because it is pour utmost desire to safeguard the prestige of this
honorable court and of each and very member thereof in the eyes of the
public. But, at the same time we wish to state sincerely that erroneous
decisions like these, which the affected party and his thousands of voters
will necessarily consider unjust, increase the proselytes of sakdalism'
and make the public lose confidence in the administration of justice." (61
Phil. at 726; italics supplied)
When required by the Court to show cause why he should not be
declared in contempt, Atty. Francisco respondent by saying that it was
not contempt to tell the truth. examining the statement made above, the
Court held:
'. . . [they] disclose, in the opinion of this court, an inexcusable disrespect
of the authority of the court and an intentional contempt of its dignity,
because the court is thereby charged with no less than having proceeded
in utter disregard of the laws, the rights of the parties, and of the
untoward consequences, or with having abused its power and mocked
and flouted the rights of Attorney Vicente J. Francisco's client, because
the acts of outraging and mocking from which the words 'outrage' and
mockery' used therein are derived, means exactly the same as all these,
according to the Dictionary of the Spanish Language published by the
Spanish Academy (Dictionary of the Spanish Language, 15th ed., pages
132-513).
The insertion of the phrases in question in said motion of Attorney
Vicente J. Francisco, for may years a member of the Philippine bar, was
either justified nor in the least necessary, because in order to call the
attention of the court in a special way to the essential points relied upon
in his argument and to emphasize the force thereof, the many reasons
stated in his said motion were sufficient and the phrases in question were
superfluous. In order to appeal to reason and justice, it is highly improper
and amiss to make trouble and resort to, threats, as Attorney Vicente J.
Francisco has done, because both means are annoying and good
practice can ever sanction them by reason of their natural tendency to
disturb and hinder the free exercise of serene and impartial judgment,
particularly in judicial matters, in the consideration of question submitted
for resolution.
There is no question that said paragraph of Attorney Vicente Francisco's
motion contains a more or less veiled threat to the court because it is
insinuated therein, after the author shows the course which the voters of
PINEDAPCGRNMAN
Tiaong should follow in case he fails in his attempt, that they will resort
to the press for the purpose of denouncing, what he claim to be judicial
outrage of which his client has been victim; and because he states in a
threatening manner with the intention of predisposing the mind of the
reader against the court, thus creating an atmosphere of prejudices
against it in order to make it odious in the public eye, that decisions of
the nature of that referred to in his motion to promote distrust in the
administration of justice an increase the proselytes of sakdalism, a
movement with seditious and revolutionary tendencies the activities of
which, as is of public knowledge, occurred in this country a few days ago.
This cannot mean otherwise than contempt of the dignity of the court and
disrespect of the authority thereof on the part of Attorney Vicente J.
Francisco, because he presumes that the court is so devoid of the sense
of justice that, if he did not resort to intimidation, it would maintain its
error notwithstanding the fact that it may be proven,, with good reasons,
that it has acted erroneously.
As a member of the bar and an officer of this court, Attorney Vicente J.
Francisco], as any attorney, is in duty bound to uphold its dignity and
authority and to defend its integrity, not only because it has conferred
upon him the high privilege, not a right (Malcolm, Legal ethics, 158 and
160), of being what he now is: a priest of justice (In re Thatcher, 80 Ohio
St., Rep., 492, 669), but also because in so doing, he neither creates nor
promotes distrust in the administration of justice, and prevents anybody
from harboring and encouraging discontent which, in many cases, is the
source of disorder, thus undermining the foundation upon which rests
that bulwark called judicial power to which those who are aggrieved turn
for protection and relief." (61 Phil. at 727-728; italics supplied)
It should not be supposed that the six (6) cases above discussed exhaust
our case law on this matter. In the following cases, among others, the
supreme Court punished for contempt or administratively disciplined
lawyers who had made statements not very different from those made in
the cases discussed above:
1) In re Wenceslao Laureta, 148 SCRA 382 (1987);
2) Borromeo v. Court of Appeals, 87 SCRA 67 (1978);
3) Rheem of the Philippines v. Ferre, 20 SCRA 441 (1967);
4) Malolos v. Reyes, 1 SCRA 559 (1961);
5) De Joya, et al. v. Court of First Instance of Rizal, Pasay City
Branch, 99 Phil. 907 (1956);
6) People v. Venturanza, et al., 98 Phil. 211 (1956);
7) In re Suzano A. Velasquez, per curiam Resolution
(unreported), Promulgated 29 April 1955;
8) Cornejo v. Tan, 85 Phil. 772 (1950);
9) People v. Carillo, 77 Phil. 572 (1946);
10) Intestate Estate of Rosario Olba; Contempt Proceedings
against Antonio Franco, 67 Phil. 312 (1939); and
11) Lualhati v. Albert, 57 Phil. 86 (1932).
Considering the kinds of statements of lawyers discussed above which
the Court has in the past penalized as contemptuous or as warranting
application of disciplinary sanctions, this Country is compelled to hold
that the statements here made by respondent Gonzalez clearly
constitute contempt and call for the exercise of the disciplinary authority
of the Supreme Court. Respondent's statements, especially the charge
that the Court deliberately rendered an erroneous and unjust decisions
in the Consolidated Petitions, necessarily implying that the justices of this
Court betrayed their oath of office, merely to wreak vengeance upon the
respondent here, constitute the grossest kind of disrespect for the Court.
Such statements ever clearly debase and degrade the supreme Court
and, through the Court, the entire system of administration of justice in
the country. That respondent's baseless charges have had some impact
Page 47
outside the internal world of subjective intent, is clearly demonstrated by
the filing of a complaint for impeachment of thirteen (13) out of the then
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
fourteen (14) incumbent members of this Court, a complaint the
centerpiece of which is a repetition of the appalling claim of respondent
that this Court deliberately rendered a wrong decision as an act of
reprisal against the respondent.
IV
The principal defense of respondent defense of respondent Gonzalez is
that he was merely exercising his constitutional right of free speech. He
also invokes the related doctrines of qualified privileged communications
fair criticism in the public interest.
Respondent Gonzalez is entitled to the constitutional guarantee of free
speech. No one seeks to deny him that right, least of all this Court. What
respondent seems unaware of is that freedom of speech and of
expression, like all constitutional freedoms, is not absolute and that
freedom of expression needs on occasion to be adjusted to and
accommodated with the requirements of equally important public
interest. One of these fundamental public interests is the maintenance of
the integrity and orderly functioning of the administration of justice. There
is bo antinomy between free expression and the integrity of the system
of administering justice. For the protection and maintenance of freedom
of expression itself can be secured only within the context of a
functioning and orderly system of dispensing justice, within the context,
in other words, of viable independent institutions for delivery of justice
which are accepted by the general community. As Mr. Justice Frankfurter
put it:
". . . A free press is not to be preferred to an independent judiciary, nor
an independent judiciary ro a free press. Neither has primacy over the
other; both are indispensable to a free society.
The freedom of the press in itself presupposes an independent judiciary
through which that freedom may, if necessary, be vindicated. And one of
the potent means for assuring judges their independence is a free press."
50
Mr. Justice Malcolm of this Court expressed the same thought in the
following:
"The Organic Act wisely guarantees freedom of speech and press. This
constitutional right must be protected in its fullest extent. The Court has
heretofore given evidence of its tolerant regard for charges under the
Libel Law which come dangerously close to its violation. We shall
continue in this chosen path. The liberty of the citizens must be
preserved in all of its completeness. But license or abuse of liberty of the
press and of the citizens should not be confused with liberty in its true
sense. As important as is the maintenance of unmuzzled press and the
free exercise of the rights of the citizens is the maintenance of the
independence of the Judiciary. Respect for the Judiciary cannot be had
if persons are privileged to scorn a resolution of the court adopted for
good purposes, and if such persons are to be permitted by subterranean
means to diffuse inaccurate accounts of confidential proceedings to the
embarrassment of the parties and the courts." 51 (Italics supplied)
Only slightly (f at all ) less important is the public interest in the capacity
of the Court effectively to prevent and control professional misconduct
on the part of lawyers who are, first and foremost, indispensable
participants in the task of rendering justice to every man. Some courts
have held, persuasively it appears to us, that a lawyer's right of free
expression may have to be more limited than that of a layman. 52
It is well to recall that respondent Gonzalez, apart from being a lawyer
and an officer of the court, is also a Special Prosecutor who owes duties
of fidelity and respect to the Republic and to this Court as the
embodiment and the repository of the judicial power in the government
of the republic. The responsibility of the respondent "to uphold the dignity
and authority of this Court" and "not to promote distrust in the
administration of justice "53 is heavier that of a private practicing lawyer.
PINEDAPCGRNMAN
Respondent Gonzalez claims to be and he is, of course, entitled to
criticize the rulings of this court, to point out where he feels the Court
may have lapsed into error. Once more, however, the right of criticism is
not unlimited. Its limits were marked out by Mr. Justice Castro in In re
Almacen which are worth noting:
"But it is the cardinal condition of all such criticism that it shall be bona
fide, and shall not spill over the walls of decency and propriety. A wide
chasm exists between fair criticism, on the one hand, and abuse and
slander of courts and the judges thereof, on the other. Intemperate and
unfair criticism is a gross violation of the duty of respect to courts. It is
such a misconduct that subjects a lawyer to disciplinary action."
The lawyer's duty to render respectful subordination to the courts is
essential to the orderly administration of justice. Hence, in the assertion
of their clients' right, lawyers even those gifted with superior intellect
are enjoined to rein up their tempers.
. . . "54 (Italics supplied)
The instant proceeding is not addressed to the fact that respondent has
criticized the Court; it is addressed rather to the nature of that criticism
or comment and the manner in which it was carried out.
Respondent Gonzalez disclaims an intent to attack and denigrate the
court. The subjectivities of the respondent are irrelevant so far as
characterization of his conduct or misconduct is concerned. He will not,
however, be allowed to disclaim the natural and plain import of his words
and acts. 55 It is, upon the other hand, not irrelevant to point out that
respondent offered no apology in his two (2) explanations and exhibited
no repentance. 56
Respondent Gonzalez also defends himself contending that no injury to
the judiciary has been shown, and points to the fact that this Court denied
his Motion for reconsideration of its per curiam Decision of 27 April 1988
and reiterated and amplified that Decision in its Resolution of 19 May
1988. In the first place, proof of actual damage sustained by a court or
the judiciary in general is not essential for a finding of contempt or for the
application of the disciplinary authority of the Court. Insofar as the
Consolidated Petitions are concerned this Court after careful review of
the bases of its 27 April 1988 Decision, denied respondent's Motion for
reconsideration thereof and rejected the public pressures brought to bear
upon this Court by the respondent through his much publicized acts and
statements for which he is here being required to account. Obstructing
the free and undisturbed resolution of a particular case is not the only
species of injury that the Court has a right and a duty to prevent and
redress. What is at stake in cases of this kind is the integrity of the judicial
institutions of the country in general and of the Supreme Court in
particular. Damage to such institutions might not be quantifiable at a
given moment in time but damage there will surely by if acts like those of
respondent Gonzalez are not effectively stopped and countered. The
level of trust and confidence of the general public in the courts, including
the court of last resort, is not easily measured; but few will dispute that a
high level of such trust and confidence is critical for the stability of
democratic government.
Respondent Gonzalez lastly suggest that punishment for contempt is not
the proper remedy in this case and suggests that the members of this
Court have recourse to libel suits against him. While the remedy of libel
suits by individual members of this Court may well be available against
respondent Gonzalez, such is by no means an exclusive remedy.
Moreover, where as in the instant case, it is not only the individual
members of the Court but the Court itself as an institution that has been
falsely attacked, libel suits cannot be an adequate remedy. 57
The Court concludes that respondent Gonzalez is guilty both of contempt
of court in facie curiae and of gross misconduct as an officer of the court
Page 48
and member of the Bar.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
ACCORDINGLY, the Court Resolved to SUSPEND Atty. Raul M.
Gonzalez from the practice of law indefinitely and until further others from
this Court, the suspension to take effect immediately.
Let copies of this Resolution be finished the Sandiganbayan, the
Ombudsman, the Secretary of Justice, the Solicitor General and the
Court of Appeals for their information and guidance.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino,
Medialdea and Regalado, JJ., concur.
Raul M. Gonzalez suspended from the practice of law indefinitely.
2004 RULES ON NOTARIAL PRACTICE
A.M. No. 02-8-13-SC: Rules on Notarial Practice of 2004
(August 1, 2004)
Qualifications of a Notary Public
1. Must be citizen of the Philippines
2. Must be over twenty-one (21) years of age
3. Must be a resident in the Philippines for at least one (1) year
and maintains a regular place of work or business in the city
or province where the commission is to be issued
4. Must be a member of the Philippine Bar in good standing with
clearances from the Office of the Bar Confidant of the
Supreme Court and the Integrated Bar of the Philippines
5. Must not have been convicted in the first instance of any
crime involving moral turpitude (Rule III, Section 1)
Jurisdiction and Term
A notary public may perform notarial acts in any place within the territorial
jurisdiction of the commissioning court for a period of two (2) years
commencing on the 1st day of January of the year in which the
commissioning is made UNLESS earlier revoked or the notary public has
resigned according to these Rules and the Rules of Court (Rule III,
Section 11).
Powers and Limitations of Notaries Public
Powers
A notary public is empowered to do the following acts:
(JAOSAC)
1. Acknowledgments;
2. Oaths and affirmations;
3. Jurats;
4. Signature witnessings;
5. Copy certifications; and
6. Any other act authorized by these Rules.
A notary public is authorized to certify the affixing of a
signature by thumb or other mark on an instrument or
document presented for notarization if:
1. The thumb or other mark is affixed in the presence of the
notary public and of two (2) disinterested and unaffected
witnesses to the instrument or document;
2. Both witnesses sign their own names in addition to the thumb
or other mark;
3. The notary public writes below the thumb or other mark:
Thumb or Other Mark affixed by (name of signatory by mark)
in the presence of (names and addresses of witnesses) and
undersigned notary public, and
4. The notary public notarizes the signature by thumb or other
mark through an acknowledgment, jurat or signature
witnessing.
PINEDAPCGRNMAN
A notary public is authorized to sign on behalf of a person who
is physically unable to sign or make a mark on an instrument
or document if:
1. The notary public is directed by the person unable to sign or
make a mark to sign on his behalf;
2. The signature of the notary public is affixed in the presence
of two (2) disinterested and unaffected witnesses to the
instrument or document;
3. Both witnesses sign their own names;
4. The notary public writes below his signature: Signature
affixed by notary in the presence of (names and addresses of
person and two (2) witnesses), and
5. The notary public notarizes his signature by acknowledgment
or jurat (Rule IV, Section 1).
Prohibitions
General Rule: A notary public shall not perform a notarial act
outside his regular place of work or business.
Exceptions: A notarial act may be performed at the request of the
parties in the following sites located within his territorial
jurisdiction:
a. Public offices, convention halls and similar places where
oaths of office may be administered;
b. Public function areas in hotels and similar places for the
signing of instruments or documents requiring notarization;
c. Hospitals and medical institutions where a party to the
instrument or document is confined for treatment; and
d. Any place where a party to the instrument or document
requiring notarization is under detention.
A person shall not perform a notarial act if:
1. the person involved as signatory to the instrument or document-
a. Is not in the notarys presence at the time of the notarization;
and
b. Is not personally known to the notary public or otherwise
identified by the notary public through competent evidence of
identity as defined by these Rules (Rule IV, Section 2).
2. the certificate containing an information known or believed to be
false; and
3. he shall not affix an official signature or seal on a notarial certificate
that is incomplete (Rule IV, Section 5).
Disqualifications
A notary public is disqualified from performing a notarial if he:
1) Is a party to the instrument or document;
2) Will receive, as a direct or indirect result any commission, fee,
advantage, right, title, interest, cash, property, or other
consideration, except as provided that is to be notarized;
3) Is a spouse, common-law partner, ancestor, descendant, or
relative by affinity or consanguinity of the principal within the
fourth civil degree (Rule IV, Section 3).
When notary public may refuse to notarize even if appropriate fee
is tendered:
1) When the notary knows or has good reason to believe
that the notarial act or transaction is unlawful or
immoral.
Page 49
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
2) When the signatory shows a demeanor which
engenders in the mind of the notary public reasonable
doubt as to the formers knowledge of the
consequences of the transaction requiring a notarial act.
3) If in the notarys judgment, the signatory is not acting in
his/her own free will (Rule IV, Section 4).
4) If the document or instrument to be notarized is
considered as an improper document by these Rules.
NOTE: A blank or incomplete instrument or document OR an
instrument or document without appropriate notarial certification is
considered an Improper Instrument/Document (Rule IV, Section 6).
Notarial Certificates
Contents of the Concluding part of the Notarial Certificate:
1) The name of the notary public as exactly indicated in the
commission;
2) The serial number of the commission of the notary public;
3) The words Notary Public and the province or city where the
notary public is commissioned, the expiration date of the
commission and the office address of the notary public; and
4) The Roll of Attorneys number, the Professional Tax Receipt
number and the place and date of issuance thereof and the
IBP Membership number (Rule VIII, Section 2).
Revocation of Commission
The Executive Judge shall revoke a commission for any ground on which
an application for a commission may be denied.
In addition, the Executive Judge may revoke the commission of or
impose sanctions upon any notary public who:
1) Fails to keep a notarial register;
2) Fails to make the appropriate entry or entries in his
notarial register concerning his notarial acts;
3) Fails to send the copy of the entries to the Executive
Judge within the first ten (10) days of the month
following;
4) Fails to affix to acknowledgments the date of expiration
of his commission;
5) Fails to submit his notarial register, when filled, to the
Executive Judge;
6) Fails to make his report, within a reasonable time, to
the Executive Judge concerning the performance of his
duties, as may be required by the Judge;
7) Fails to require the presence of the principal at the time
of the notarial act;
8) Fails to identify a principal on the basis of personal
knowledge or competent evidence;
9) Executes a false or incomplete certificate under
Section 5, Rule IV;
10) Knowingly performs or fails to perform any other act
prohibited or mandated by these Rules; and
11) Commits any other dereliction or act which in the
judgment of the Executive Judge constitutes good
cause for the revocation of the commission or
imposition of administrative sanction (Rule XI, Section
1).
Punishable Acts
PINEDAPCGRNMAN
The Executive Judge shall cause the prosecution of any person who:
1) Knowingly acts or otherwise impersonates a
notary public;
2) Knowingly obtains, conceals, defaces, or destroys
the seal, notarial register, or official records of a
notary public; and
Knowingly solicits, coerces, or in any way influences a notary public to
commit official misconduct (Rule XII, Section 1).
A.C. No. 5838. January 17, 2005]
SPOUSES BENJAMIN SANTUYO AND EDITHA SANTUYO,
complainants, vs. ATTY. EDWIN A. HIDALGO, respondent.
RESOLUTION
CORONA, J.:
In a verified complaint-affidavit dated September 18, 2001,[1] spouses
Benjamin Santuyo and Editha Santuyo accused respondent Atty. Edwin
A. Hidalgo of serious misconduct and dishonesty for breach of his
lawyers oath and the notarial law.
Complainants stated that sometime in December 1991, they purchased
a parcel of land covered by a deed of sale. The deed of sale was
allegedly notarized by respondent lawyer and was entered in his notarial
register as Doc. No. 94 on Page No. 19 in Book No. III, Series of 1991.
Complainant spouses averred that about six years after the date of
notarization, they had a dispute with one Danilo German over the
ownership of the land. The case was estafa through falsification of a
public document.
During the trial of the case, German presented in court an affidavit
executed by respondent denying the authenticity of his signature on the
deed of sale. The spouses allegedly forged his notarial signature on said
deed.[2]
According to complainants, respondent overlooked the fact that the
disputed deed of sale contained all the legal formalities of a duly
notarized document, including an impression of respondents notarial dry
seal. Not being persons who were learned in the technicalities
surrounding a notarial act, spouses contended that they could not have
forged the signature of herein respondent. They added that they had no
access to his notarial seal and notarial register, and could not have made
any imprint of respondents seal or signature on the subject deed of sale
or elsewhere.[3]
In his answer[4] to the complaint, respondent denied the allegations
against him. He denied having notarized any deed of sale covering the
disputed property. According to respondent, he once worked as a junior
lawyer at Carpio General and Jacob Law Office where he was asked to
apply for a notarial commission. While he admitted that he notarized
several documents in that office, these, however, did not include the
subject deed of sale. He explained that, as a matter of office procedure,
documents underwent scrutiny by the senior lawyers and it was only
when they gave their approval that notarization was done. He claimed
that, in some occasions, the secretaries in the law firm, by themselves,
would affix the dry seal of the junior associates on documents relating to
cases handled by the law firm. Respondent added that he normally
required the parties to exhibit their community tax certificates and made
them personally acknowledge the documents before him as notary
public. He would have remembered complainants had they actually
appeared before him. While he admitted knowing complainant Editha
Santuyo, he said he met the latters husband and co-complainant only on
November 5, 1997, or about six years from the time that he purportedly
notarized the deed of sale. Moreover, respondent stressed that an
Page 50
examination of his alleged signature on the deed of sale revealed that it
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
was forged; the strokes were smooth and mild. He suspected that a lady
was responsible for forging his signature.
To further refute the accusations against him, respondent stated that, at
the time the subject deed of sale was supposedly notarized, on
December 27, 1991, he was on vacation. He surmised that complainants
must have gone to the law office and enticed one of the secretaries, with
the concurrence of the senior lawyers, to notarize the document. He
claimed he was a victim of a criminal scheme motivated by greed.
The complaint was referred to the Integrated Bar of the Philippines (IBP)
for investigation, report and recommendation. In a report[5] it submitted
to the Court, the IBP noted that the alleged forged signature of
respondent on the deed of sale was different from his signatures in other
documents he submitted during the investigation of the present case.[6]
However, it ruled that respondent was also negligent because he allowed
the office secretaries to perform his notarial functions, including the
safekeeping of his notarial dry seal and notarial register.[7]It thus
recommended:
WHEREFORE[,] in view of the foregoing, it is respectfully recommended
that respondents commission as notary public be revoked for two (2)
years if he is commissioned as such; or he should not be granted a
commission as notary public for two (2) years upon receipt hereof.[8]
After going over the evidence submitted by the parties, complainants did
not categorically state that they appeared before respondent to have the
deed of sale notarized. Their appearance before him could have
bolstered this allegation that respondent signed the document and that it
was not a forgery as he claimed. The records show that complainants
themselves were not sure if respondent, indeed, signed the document;
what they were sure of was the fact that his signature appeared thereon.
They had no personal knowledge as well as to who actually affixed the
signature of respondent on the deed.
Furthermore, complainants did not refute respondents contention that he
only met complainant Benjamin Santuyo six years after the alleged
notarization of the deed of sale. Respondents assertion was
corroborated by one Mrs. Lyn Santy in an affidavit executed on
November 17, 2001[9] wherein she stated that complainant Editha
Santuyo had to invite respondent to her house on November 5, 1997 to
meet her husband since the two had to be introduced to each other. The
meeting between complainant Benjamin Santuyo and respondent was
arranged after the latter insisted that Mr. Santuyo personally
acknowledge a deed of sale concerning another property that the
spouses bought.
In finding respondent negligent in performing his notarial functions, the
IBP reasoned out:
xxx xxx xxx.
Considering that the responsibility attached to a notary public is sensitive
respondent should have been more discreet and cautious in the
execution of his duties as such and should not have wholly entrusted
everything to the secretaries; otherwise he should not have been
commissioned as notary public.
For having wholly entrusted the preparation and other mechanics of the
document for notarization to the secretary there can be a possibility that
even the respondents signature which is the only one left for him to do
can be done by the secretary or anybody for that matter as had been the
case herein.
As it is respondent had been negligent not only in the supposed
notarization but foremost in having allowed the office secretaries to make
the necessary entries in his notarial registry which was supposed to be
done and kept by him alone; and should not have relied on somebody
else.[10]
WHEREFORE, respondent Atty. Edwin A. Hidalgo is hereby found
GUILTY of negligence in the performance of his duties as notary public
PINEDAPCGRNMAN
and is hereby SUSPENDED from his commission as a notary public for
a period of two years, if he is commissioned, or if he is not, he is
disqualified from an appointment as a notary public for a period of two
years from finality of this resolution, with a warning that a repetition of
similar negligent acts would be dealt with more severely.
SO ORDERED.
Panganiban, (Chairman), Sandoval-Gutierrez, Carpio-Morales, and
Garcia, JJ., concur.
A.C. No. 5864 April 15, 2005
ARTURO L. SICAT, Complainant,
vs.
ATTY. GREGORIO E. ARIOLA, JR., respondent.
RESOLUTION
PER CURIAM:
In an affidavit-complaint,1 complainant Arturo L. Sicat, a Board Member
of the Sangguniang Panglalawigan of Rizal, charged respondent Atty.
Gregorio E. Ariola, the Municipal Administrator of Cainta, Rizal, with
violation of the Code of Professional Responsibility by committing fraud,
deceit and falsehood in his dealings, particularly the notarization of a
Special Power of Attorney (SPA) purportedly executed by a one Juanito
C. Benitez. According to complainant, respondent made it appear that
Benitez executed the said document on January 4, 2001 when in fact the
latter had already died on October 25, 2000.
He alleged that prior to the notarization, the Municipality of Cainta had
entered into a contract with J.C. Benitez Architect and Technical
Management, represented by Benitez, for the construction of low-cost
houses. The cost of the architectural and engineering designs amounted
to P11,000,000 and two consultants were engaged to supervise the
project. For the services of the consultants, the Municipality of Cainta
issued a check dated January 10, 2001 in the amount of P3,700,000,
payable to J.C. Benitez Architects and Technical Management and/or
Cesar Goco. The check was received and encashed by the latter by
virtue of the authority of the SPA notarized by respondent Ariola.
Complainant further charged respondent with the crime of falsification
penalized under Article 171 of the Revised Penal Code by making it
appear that certain persons participated in an act or proceeding when in
fact they did not.
In his Comment,2 respondent explained that, as early as May 12, 2000,
Benitez had already signed the SPA. He claimed that due to
inadvertence, it was only on January 4, 2001 that he was able to notarize
it. Nevertheless, the SPA notarized by him on January 4, 2001 was not
at all necessary because Benitez had signed a similar SPA in favor of
Goco sometime before his death, on May 12, 2000. Because it was no
longer necessary, the SPA was cancelled the same day he notarized it,
hence, legally, there was no public document that existed. Respondent
prayed that the complaint be dismissed on the ground of forum-shopping
since similar charges had been filed with the Civil Service Commission
and the Office of the Deputy Ombudsman for Luzon. According to him,
the complaints were later dismissed based on findings that the assailed
act referred to violations of the implementing rules and regulations of PD
1594,3 PD 1445,4 RA 71605 and other pertinent rules of the Commission
on Audit (COA). He stressed that no criminal and administrative charges
were recommended for filing against him.
In a Resolution dated March 12, 2003,6 the Court referred the complaint
to the Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation. On August 26, 2003, the IBP submitted its
investigation report:
Page 51
x x x it is evident that respondent notarized the Special Power of Attorney
dated 4 January 2001 purportedly executed by Juanito C. Benitez long
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
after Mr. Benitez was dead. It is also evident that respondent cannot
feign innocence and claim that he did not know Mr. Benitez was already
dead at the time because respondent, as member of the Prequalification
and Awards Committee of the Municipality of Cainta, personally knew
Mr. Benitez because the latter appeared before the Committee a number
of times. It is evident that the Special Power of Attorney dated 4 January
2001 was part of a scheme of individuals to defraud the Municipality of
Cainta of money which was allegedly due them, and that respondent by
notarizing said Special Power of Attorney helped said parties succeed in
their plans.7
The IBP recommended to the Court that respondent's notarial
commission be revoked and that he be suspended from the practice of
law for a period of one year.8
After a careful review of the records, we find that respondent never
disputed complainant's accusation that he notarized the SPA purportedly
executed by Benitez on January 4, 2001. He likewise never took issue
with the fact that on said date, Benitez was already dead. His act was a
serious breach of the sacred obligation imposed upon him by the Code
of Professional Responsibility, specifically Rule 1.01 of Canon 1, which
prohibited him from engaging in unlawful, dishonest, immoral or deceitful
conduct. As a lawyer and as an officer of the court, it was his duty to
serve the ends of justice,9 not to corrupt it. Oath-bound, he was expected
to act at all times in accordance with law and ethics, and if he did not, he
would not only injure himself and the public but also bring reproach upon
an honorable profession.10
In the recent case of Zaballero v. Atty. Mario J. Montalvan,11 where the
respondent notarized certain documents and made it appear that the
deceased father of complainant executed them, the Court declared the
respondent there guilty of violating Canon 10, Rule 10.01 of the Code of
Professional Responsibility.12 The Court was emphatic that lawyers
commissioned as notaries public should not authenticate documents
unless the persons who signed them are the very same persons who
executed them and personally appeared before them to attest to the
contents and truth of what are stated therein. The Court added that
notaries public must observe utmost fidelity, the basic requirement in the
performance of their duties, otherwise the confidence of the public in the
integrity of notarized deeds and documents will be undermined.
In the case at bar, the records show that Benitez died on October 25,
2000. However, respondent notarized the SPA, purportedly bearing the
signature of Benitez, on January 4, 2001 or more than two months after
the latter's death. The notarial acknowledgement of respondent declared
that Benitez "appeared before him and acknowledged that the instrument
was his free and voluntary act." Clearly, respondent lied and intentionally
perpetuated an untruthful statement. Notarization is not an empty,
meaningless and routinary act.13 It converts a private document into a
public instrument, making it admissible in evidence without the necessity
of preliminary proof of its authenticity and due execution.14
Neither will respondent's defense that the SPA in question was
superfluous and unnecessary, and prejudiced no one, exonerate him of
accountability. His assertion of falsehood in a public document
contravened one of the most cherished tenets of the legal profession and
potentially cast suspicion on the truthfulness of every notarial act. As the
Municipal Administrator of Cainta, he should have been aware of his
great responsibility not only as a notary public but as a public officer as
well. A public office is a public trust. Respondent should not have caused
disservice to his constituents by consciously performing an act that
would deceive them and the Municipality of Cainta. Without the
fraudulent SPA, the erring parties in the construction project could not
have encashed the check amounting to P3,700,000 and could not have
foisted on the public a spurious contract all to the extreme prejudice
PINEDAPCGRNMAN
of the very Municipality of which he was the Administrator. According to
the COA Special Task Force:
Almost all acts of falsification of public documents as enumerated in
Article 171 in relation to Article 172 of the Revised Penal Code were
evident in the transactions of the Municipality of Cainta with J.C. Benitez
& Architects Technical Management for the consultancy services in the
conduct of Detailed Feasibility Study and Detailed Engineering Design
of the Proposed Construction of Cainta Municipal Medium Rise Low Cost
Housing, in the contract amount of P11,000,000. The agent resorted to
misrepresentation, manufacture or fabrication of fictitious document,
untruthful narration of facts, misrepresentation, and counterfeiting or
imitating signature for the purpose of creating a fraudulent contract. All
these were tainted with deceit perpetrated against the government
resulting to undue injury. The first and partial payment, in the amount
of P3,700,000.00 was made in the absence of the required outputs. x x
x15
We need not say more except that we are constrained to change the
penalty recommended by the IBP which we find too light.
WHEREFORE, respondent Atty. Gregorio E. Ariola, Jr., is found guilty of
gross misconduct and is hereby DISBARRED from the practice of law.
Let copies of this Resolution be furnished the Office of the Bar Confidant
and entered in the records of respondent, and brought to the immediate
attention of the Ombudsman.
SO ORDERED.
RULE 1.01: A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct.
[A.C. No. 3319. June 8, 2000]
LESLIE UI, complainant, vs. ATTY. IRIS BONIFACIO, respondent.
DECISION
DE LEON, JR., J.:
Before us is an administrative complaint for disbarment against Atty. Iris
Bonifacio for allegedly carrying on an immoral relationship with Carlos L.
Ui, husband of complainant, Leslie Ui.
The relevant facts are:
On January 24, 1971 complainant Leslie Ui married Carlos L. Ui at the
Our Lady of Lourdes Church in Quezon City[1] and as a result of their
marital union, they had four (4) children, namely, Leilani, Lianni, Lindsay
and Carl Cavin, all surnamed Ui. Sometime in December 1987, however,
complainant found out that her husband, Carlos Ui, was carrying on an
illicit relationship with respondent Atty. Iris Bonifacio with whom he begot
a daughter sometime in 1986, and that they had been living together at
No. 527 San Carlos Street, Ayala Alabang Village in Muntinlupa City.
Respondent who is a graduate of the College of Law of the University of
the Philippines was admitted to the Philippine Bar in 1982.
Carlos Ui admitted to complainant his relationship with the respondent.
Complainant then visited respondent at her office in the later part of June
1988 and introduced herself as the legal wife of Carlos Ui. Whereupon,
respondent admitted to her that she has a child with Carlos Ui and
alleged, however, that everything was over between her and Carlos Ui.
Complainant believed the representations of respondent and thought
things would turn out well from then on and that the illicit relationship
between her husband and respondent would come to an end.
However, complainant again discovered that the illicit relationship
between her husband and respondent continued, and that sometime in
December 1988, respondent and her husband, Carlos Ui, had a second
child. Complainant then met again with respondent sometime in March
1989 and pleaded with respondent to discontinue her illicit relationship
Page 52
with Carlos Ui but to no avail. The illicit relationship persisted and
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
complainant even came to know later on that respondent had been
employed by her husband in his company.
A complaint for disbarment, docketed as Adm. Case No. 3319, was then
filed on August 11, 1989 by the complainant against respondent Atty. Iris
Bonifacio before the Commission on Bar Discipline of the Integrated Bar
of the Philippines (hereinafter, Commission) on the ground of immorality,
more particularly, for carrying on an illicit relationship with the
complainants husband, Carlos Ui. In her Answer,[2] respondent averred
that she met Carlos Ui sometime in 1983 and had known him all along
to be a bachelor, with the knowledge, however, that Carlos Ui had
children by a Chinese woman in Amoy, China, from whom he had long
been estranged. She stated that during one of their trips abroad, Carlos
Ui formalized his intention to marry her and they in fact got married in
Hawaii, USA in 1985[3]. Upon their return to Manila, respondent did not
live with Carlos Ui. The latter continued to live with his children in their
Greenhills residence because respondent and Carlos Ui wanted to let
the children gradually to know and accept the fact of his second marriage
before they would live together.[4]
In 1986, respondent left the country and stayed in Honolulu, Hawaii and
she would only return occasionally to the Philippines to update her law
practice and renew legal ties. During one of her trips to Manila sometime
in June 1988, respondent was surprised when she was confronted by a
woman who insisted that she was the lawful wife of Carlos Ui. Hurt and
desolate upon her discovery of the true civil status of Carlos Ui,
respondent then left for Honolulu, Hawaii sometime in July 1988 and
returned only in March 1989 with her two (2) children. On March 20,
1989, a few days after she reported to work with the law firm [5] she was
connected with, the woman who represented herself to be the wife of
Carlos Ui again came to her office, demanding to know if Carlos Ui has
been communicating with her.
It is respondents contention that her relationship with Carlos Ui is not
illicit because they were married abroad and that after June 1988 when
respondent discovered Carlos Uis true civil status, she cut off all her ties
with him. Respondent averred that Carlos Ui never lived with her in
Alabang, and that he resided at 26 Potsdam Street, Greenhills, San
Juan, Metro Manila. It was respondent who lived in Alabang in a house
which belonged to her mother, Rosalinda L. Bonifacio; and that the said
house was built exclusively from her parents funds.[6] By way of
counterclaim, respondent sought moral damages in the amount of Ten
Million Pesos (Php10,000,000.00) against complainant for having filed
the present allegedly malicious and groundless disbarment case against
respondent.
In her Reply[7] dated April 6, 1990, complainant states, among others,
that respondent knew perfectly well that Carlos Ui was married to
complainant and had children with her even at the start of her relationship
with Carlos Ui, and that the reason respondent went abroad was to give
birth to her two (2) children with Carlos Ui.
During the pendency of the proceedings before the Integrated Bar,
complainant also charged her husband, Carlos Ui, and respondent with
the crime of Concubinage before the Office of the Provincial Fiscal of
Rizal, docketed as I.S. No. 89-5247, but the same was dismissed for
insufficiency of evidence to establish probable cause for the offense
charged. The resolution dismissing the criminal complaint against
respondent reads:
Complainants evidence had prima facie established the existence of the
"illicit relationship" between the respondents allegedly discovered by the
complainant in December 1987. The same evidence however show that
respondent Carlos Ui was still living with complainant up to the latter part
of 1988 and/or the early part of 1989.
It would therefore be logical and safe to state that the "relationship" of
respondents started and was discovered by complainant sometime in
PINEDAPCGRNMAN
1987 when she and respondent Carlos were still living at No. 26 Potsdam
Street, Northeast Greenhills, San Juan, MetroManila and they,
admittedly, continued to live together at their conjugal home up to early
(sic) part of 1989 or later 1988, when respondent Carlos left the same.
From the above, it would not be amiss to conclude that altho (sic) the
relationship, illicit as complainant puts it, had been prima facie
established by complainants evidence, this same evidence had failed to
even prima facie establish the "fact of respondents cohabitation in the
concept of husband and wife at the 527 San Carlos St., Ayala Alabang
house, proof of which is necessary and indispensable to at least create
probable cause for the offense charged. The statement alone of
complainant, worse, a statement only of a conclusion respecting the fact
of cohabitation does not make the complainants evidence thereto any
better/stronger (U.S. vs. Casipong and Mongoy, 20 Phil. 178).
It is worth stating that the evidence submitted by respondents in support
of their respective positions on the matter support and bolster the
foregoing conclusion/recommendation.
WHEREFORE, it is most respectfully recommended that the instant
complaint be dismissed for want of evidence to establish probable cause
for the offense charged.
RESPECTFULLY SUBMITTED.[8]
Complainant appealed the said Resolution of the Provincial Fiscal of
Rizal to the Secretary of Justice, but the same was dismissed [9] on the
ground of insufficiency of evidence to prove her allegation that
respondent and Carlos Ui lived together as husband and wife at 527 San
Carlos Street, Ayala Alabang, Muntinlupa, Metro Manila.
In the proceedings before the IBP Commission on Bar Discipline,
complainant filed a Motion to Cite Respondent in Contempt of the
Commission [10] wherein she charged respondent with making false
allegations in her Answer and for submitting a supporting document
which was altered and intercalated. She alleged that in the Answer of
respondent filed before the Integrated Bar, respondent averred, among
others, that she was married to Carlos Ui on October 22, 1985 and
attached a Certificate of Marriage to substantiate her averment.
However, the Certificate of Marriage [11] duly certified by the State
Registrar as a true copy of the record on file in the Hawaii State
Department of Health, and duly authenticated by the Philippine
Consulate General in Honolulu, Hawaii, USA revealed that the date of
marriage between Carlos Ui and respondent Atty. Iris Bonifacio was
October 22, 1987, and not October 22, 1985 as claimed by respondent
in her Answer. According to complainant, the reason for that false
allegation was because respondent wanted to impress upon the said IBP
that the birth of her first child by Carlos Ui was within the wedlock.[12] It is
the contention of complainant that such act constitutes a violation of
Articles 183[13] and 184[14] of the Revised Penal Code, and also contempt
of the Commission; and that the act of respondent in making false
allegations in her Answer and submitting an altered/intercalated
document are indicative of her moral perversity and lack of integrity
which make her unworthy to be a member of the Philippine Bar.
In her Opposition (To Motion To Cite Respondent in
Contempt),[15] respondent averred that she did not have the original copy
of the marriage certificate because the same was in the possession of
Carlos Ui, and that she annexed such copy because she relied in good
faith on what appeared on the copy of the marriage certificate in her
possession.
Respondent filed her Memorandum [16] on February 22, 1995 and raised
the lone issue of whether or not she has conducted herself in an immoral
manner for which she deserves to be barred from the practice of law.
Respondent averred that the complaint should be dismissed on two (2)
Page 53
grounds, namely:
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LEGAL ETHICS
(i) Respondent conducted herself in a manner consistent with the
requirement of good moral character for the practice of the legal
profession; and
(ii) Complainant failed to prove her allegation that respondent conducted
herself in an immoral manner.[17]
In her defense, respondent contends, among others, that it was she who
was the victim in this case and not Leslie Ui because she did not know
that Carlos Ui was already married, and that upon learning of this fact,
respondent immediately cut-off all her ties with Carlos Ui. She stated that
there was no reason for her to doubt at that time that the civil status of
Carlos Ui was that of a bachelor because he spent so much time with
her, and he was so open in his courtship.[18]
On the issue of the falsified marriage certificate, respondent alleged that
it was highly incredible for her to have knowingly attached such marriage
certificate to her Answer had she known that the same was altered.
Respondent reiterated that there was no compelling reason for her to
make it appear that her marriage to Carlos Ui took place either in 1985
or 1987, because the fact remains that respondent and Carlos Ui got
married before complainant confronted respondent and informed the
latter of her earlier marriage to Carlos Ui in June 1988. Further,
respondent stated that it was Carlos Ui who testified and admitted that
he was the person responsible for changing the date of the marriage
certificate from 1987 to 1985, and complainant did not present evidence
to rebut the testimony of Carlos Ui on this matter.
Respondent posits that complainants evidence, consisting of the pictures
of respondent with a child, pictures of respondent with Carlos Ui, a
picture of a garage with cars, a picture of a light colored car with Plate
No. PNS 313, a picture of the same car, and portion of the house and
ground, and another picture of the same car bearing Plate No. PNS 313
and a picture of the house and the garage,[19] does not prove that she
acted in an immoral manner. They have no evidentiary value according
to her. The pictures were taken by a photographer from a private security
agency and who was not presented during the hearings. Further, the
respondent presented the Resolution of the Provincial Fiscal of Pasig in
I.S. Case No. 89-5427 dismissing the complaint filed by Leslie Ui against
respondent for lack of evidence to establish probable cause for the
offense charged [20] and the dismissal of the appeal by the Department
of Justice [21]to bolster her argument that she was not guilty of any
immoral or illegal act because of her relationship with Carlos Ui. In fine,
respondent claims that she entered the relationship with Carlos Ui in
good faith and that her conduct cannot be considered as willful, flagrant,
or shameless, nor can it suggest moral indifference. She fell in love with
Carlos Ui whom she believed to be single, and, that upon her discovery
of his true civil status, she parted ways with him.
In the Memorandum [22] filed on March 20, 1995 by complainant Leslie
Ui, she prayed for the disbarment of Atty. Iris Bonifacio and reiterated
that respondent committed immorality by having intimate relations with a
married man which resulted in the birth of two (2) children. Complainant
testified that respondents mother, Mrs. Linda Bonifacio, personally knew
complainant and her husband since the late 1970s because they were
clients of the bank where Mrs. Bonifacio was the Branch Manager.[23] It
was thus highly improbable that respondent, who was living with her
parents as of 1986, would not have been informed by her own mother
that Carlos Ui was a married man. Complainant likewise averred that
respondent committed disrespect towards the Commission for
submitting a photocopy of a document containing an intercalated date.
In her Reply to Complainants Memorandum [24], respondent stated that
complainant miserably failed to show sufficient proof to warrant her
disbarment. Respondent insists that contrary to the allegations of
complainant, there is no showing that respondent had knowledge of the
fact of marriage of Carlos Ui to complainant. The allegation that her
PINEDAPCGRNMAN
mother knew Carlos Ui to be a married man does not prove that such
information was made known to respondent.
Hearing on the case ensued, after which the Commission on Bar
Discipline submitted its Report and Recommendation, finding that:
In the case at bar, it is alleged that at the time respondent was courted
by Carlos Ui, the latter represented himself to be single. The Commission
does not find said claim too difficult to believe in the light of contemporary
human experience.
Almost always, when a married man courts a single woman, he
represents himself to be single, separated, or without any firm
commitment to another woman. The reason therefor is not hard to
fathom. By their very nature, single women prefer single men.
The records will show that when respondent became aware the (sic) true
civil status of Carlos Ui, she left for the United States (in July of 1988).
She broke off all contacts with him. When she returned to the Philippines
in March of 1989, she lived with her brother, Atty. Teodoro Bonifacio, Jr.
Carlos Ui and respondent only talked to each other because of the
children whom he was allowed to visit. At no time did they live together.
Under the foregoing circumstances, the Commission fails to find any act
on the part of respondent that can be considered as unprincipled or
disgraceful as to be reprehensible to a high degree. To be sure, she was
more of a victim that (sic) anything else and should deserve compassion
rather than condemnation. Without cavil, this sad episode destroyed her
chance of having a normal and happy family life, a dream cherished by
every single girl.
x..........................x..........................x"
Thereafter, the Board of Governors of the Integrated Bar of the
Philippines issued a Notice of Resolution dated December 13, 1997, the
dispositive portion of which reads as follows:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, the Report and Recommendation of the Investigating
Commissioner in the above-entitled case, herein made part of this
Resolution/Decision as Annex "A", and, finding the recommendation fully
supported by the evidence on record and the applicable laws and rules,
the complaint for Gross Immorality against Respondent is DISMISSED
for lack of merit. Atty. Iris Bonifacio is REPRIMANDED for knowingly and
willfully attaching to her Answer a falsified Certificate of Marriage with a
stern warning that a repetition of the same will merit a more severe
penalty."
We agree with the findings aforequoted.
The practice of law is a privilege. A bar candidate does not have the right
to enjoy the practice of the legal profession simply by passing the bar
examinations. It is a privilege that can be revoked, subject to the
mandate of due process, once a lawyer violates his oath and the dictates
of legal ethics. The requisites for admission to the practice of law are:
a. he must be a citizen of the Philippines;
b. a resident thereof;
c. at least twenty-one (21) years of age;
d. a person of good moral character;
e. he must show that no charges against him involving moral turpitude,
are filed or pending in court;
f. possess the required educational qualifications; and
g. pass the bar examinations.[25] (Italics supplied)
Clear from the foregoing is that one of the conditions prior to admission
to the bar is that an applicant must possess good moral character. More
importantly, possession of good moral character must be continuous as
a requirement to the enjoyment of the privilege of law practice, otherwise,
the loss thereof is a ground for the revocation of such privilege. It has
been held -
Page 54
If good moral character is a sine qua non for admission to the bar, then
the continued possession of good moral character is also a requisite for
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
retaining membership in the legal profession. Membership in the bar may
be terminated when a lawyer ceases to have good moral character.
(Royong vs. Oblena, 117 Phil. 865).
A lawyer may be disbarred for "grossly immoral conduct, or by reason of
his conviction of a crime involving moral turpitude". A member of the bar
should have moral integrity in addition to professional probity.
It is difficult to state with precision and to fix an inflexible standard as to
what is "grossly immoral conduct" or to specify the moral delinquency
and obliquity which render a lawyer unworthy of continuing as a member
of the bar. The rule implies that what appears to be unconventional
behavior to the straight-laced may not be the immoral conduct that
warrants disbarment.
Immoral conduct has been defined as "that conduct which is willful,
flagrant, or shameless, and which shows a moral indifference to the
opinion of the good and respectable members of the community." (7
C.J.S. 959).[26]
In the case at bar, it is the claim of respondent Atty. Bonifacio that when
she met Carlos Ui, she knew and believed him to be single. Respondent
fell in love with him and they got married and as a result of such marriage,
she gave birth to two (2) children. Upon her knowledge of the true civil
status of Carlos Ui, she left him.
Simple as the facts of the case may sound, the effects of the actuations
of respondent are not only far from simple, they will have a rippling effect
on how the standard norms of our legal practitioners should be defined.
Perhaps morality in our liberal society today is a far cry from what it used
to be before. This permissiveness notwithstanding, lawyers, as keepers
of public faith, are burdened with a higher degree of social responsibility
and thus must handle their personal affairs with greater caution. The
facts of this case lead us to believe that perhaps respondent would not
have found herself in such a compromising situation had she exercised
prudence and been more vigilant in finding out more about Carlos Uis
personal background prior to her intimate involvement with him.
Surely, circumstances existed which should have at least aroused
respondents suspicion that something was amiss in her relationship with
Carlos Ui, and moved her to ask probing questions. For instance,
respondent admitted that she knew that Carlos Ui had children with a
woman from Amoy, China, yet it appeared that she never exerted the
slightest effort to find out if Carlos Ui and this woman were indeed
unmarried. Also, despite their marriage in 1987, Carlos Ui never lived
with respondent and their first child, a circumstance that is simply
incomprehensible considering respondents allegation that Carlos Ui was
very open in courting her.
All these taken together leads to the inescapable conclusion that
respondent was imprudent in managing her personal affairs. However,
the fact remains that her relationship with Carlos Ui, clothed as it was
with what respondent believed was a valid marriage, cannot be
considered immoral. For immorality connotes conduct that shows
indifference to the moral norms of society and the opinion of good and
respectable members of the community.[27] Moreover, for such conduct
to warrant disciplinary action, the same must be "grossly immoral," that
is, it must be so corrupt and false as to constitute a criminal act or so
unprincipled as to be reprehensible to a high degree.[28]
We have held that "a member of the Bar and officer of the court is not
only required to refrain from adulterous relationships x x x but must also
so behave himself as to avoid scandalizing the public by creating the
belief that he is flouting those moral standards."[29] Respondents act of
immediately distancing herself from Carlos Ui upon discovering his true
civil status belies just that alleged moral indifference and proves that she
had no intention of flaunting the law and the high moral standard of the
legal profession. Complainants bare assertions to the contrary deserve
no credit. After all, the burden of proof rests upon the complainant, and
PINEDAPCGRNMAN
the Court will exercise its disciplinary powers only if she establishes her
case by clear, convincing and satisfactory evidence.[30] This, herein
complainant miserably failed to do.
On the matter of the falsified Certificate of Marriage attached by
respondent to her Answer, we find improbable to believe the averment
of respondent that she merely relied on the photocopy of the Marriage
Certificate which was provided her by Carlos Ui. For an event as
significant as a marriage ceremony, any normal bride would verily recall
the date and year of her marriage. It is difficult to fathom how a bride,
especially a lawyer as in the case at bar, can forget the year when she
got married. Simply stated, it is contrary to human experience and highly
improbable.
Furthermore, any prudent lawyer would verify the information contained
in an attachment to her pleading, especially so when she has personal
knowledge of the facts and circumstances contained therein. In attaching
such Marriage Certificate with an intercalated date, the defense of good
faith of respondent on that point cannot stand.
It is the bounden duty of lawyers to adhere unwaveringly to the highest
standards of morality. The legal profession exacts from its members
nothing less. Lawyers are called upon to safeguard the integrity of the
Bar, free from misdeeds and acts constitutive of malpractice. Their
exalted positions as officers of the court demand no less than the highest
degree of morality.
WHEREFORE, the complaint for disbarment against respondent Atty.
Iris L. Bonifacio, for alleged immorality, is hereby DISMISSED.
However, respondent is hereby REPRIMANDED for attaching to her
Answer a photocopy of her Marriage Certificate, with an altered or
intercalated date thereof, with a STERN WARNING that a more severe
sanction will be imposed on her for any repetition of the same or similar
offense in the future.
SO ORDERED.
[SBC Case No. 519. July 31, 1997]
PATRICIA FIGUEROA, complainant, vs. SIMEON BARRANCO,
JR., respondent.
RESOLUTION
ROMERO, J.:
In a complaint made way back in 1971, Patricia Figueroa petitioned that
respondent Simeon Barranco, Jr. be denied admission to the legal
profession. Respondent had passed the 1970 bar examinations on the
fourth attempt, after unsuccessful attempts in 1966, 1967 and
1968. Before he could take his oath, however, complainant filed the
instant petition averring that respondent and she had been sweethearts,
that a child out of wedlock was born to them and that respondent did not
fulfill his repeated promises to marry her.
The facts were manifested in hearings held before Investigator Victor F.
Sevilla in June and July 1971. Respondent and complainant were
townmates in Janiuay, Iloilo. Since 1953, when they were both in their
teens, they were steadies. Respondent even acted as escort to
complainant when she reigned as Queen at the 1953 town
fiesta. Complainant first acceded to sexual congress with respondent
sometime in 1960. Their intimacy yielded a son, Rafael Barranco, born
on December 11, 1964.[1] It was after the child was born, complainant
alleged, that respondent first promised he would marry her after he
passes the bar examinations. Their relationship continued and
respondent allegedly made more than twenty or thirty promises of
marriage. He gave only P10.00 for the child on the latters birthdays. Her
trust in him and their relationship ended in 1971, when she learned that
respondent married another woman.Hence, this petition.
Page 55
Upon complainants motion, the Court authorized the taking of
testimonies of witnesses by deposition in 1972. On February 18, 1974,
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
respondent filed a Manifestation and Motion to Dismiss the case citing
complainants failure to comment on the motion of Judge Cuello seeking
to be relieved from the duty to take aforesaid testimonies by
deposition. Complainant filed her comment stating that she had
justifiable reasons in failing to file the earlier comment required and that
she remains interested in the resolution of the present case. On June 18,
1974, the Court denied respondents motion to dismiss.
On October 2, 1980, the Court once again denied a motion to dismiss on
the ground of abandonment filed by respondent on September 17,
1979.[2] Respondents third motion to dismiss was noted in the Courts
Resolution dated September 15, 1982.[3] In 1988, respondent repeated
his request, citing his election as a member of the Sangguniang Bayan
of Janiuay, Iloilo from 1980-1986, his active participation in civic
organizations and good standing in the community as well as the length
of time this case has been pending as reasons to allow him to take his
oath as a lawyer.[4]
On September 29, 1988, the Court resolved to dismiss the complaint for
failure of complainant to prosecute the case for an unreasonable period
of time and to allow Simeon Barranco, Jr. to take the lawyers oath upon
payment of the required fees.[5]
Respondents hopes were again dashed on November 17, 1988 when
the Court, in response to complainants opposition, resolved to cancel his
scheduled oath-taking. On June 1, 1993, the Court referred the case to
the Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.
The IBPs report dated May 17, 1997 recommended the dismissal of the
case and that respondent be allowed to take the lawyers oath.
We agree.
Respondent was prevented from taking the lawyers oath in 1971
because of the charges of gross immorality made by complainant. To
recapitulate, respondent bore an illegitimate child with his sweetheart,
Patricia Figueroa, who also claims that he did not fulfill his promise to
marry her after he passes the bar examinations.
We find that these facts do not constitute gross immorality warranting the
permanent exclusion of respondent from the legal profession. His
engaging in premarital sexual relations with complainant and promises
to marry suggests a doubtful moral character on his part but the same
does not constitute grossly immoral conduct. The Court has held that to
justify suspension or disbarment the act complained of must not only be
immoral, but grossly immoral. A grossly immoral act is one that is so
corrupt and false as to constitute a criminal act or so unprincipled or
disgraceful as to be reprehensible to a high degree.[6] It is a willful,
flagrant, or shameless act which shows a moral indifference to the
opinion of respectable members of the community.[7]
We find the ruling in Arciga v. Maniwang[8] quite relevant because mere
intimacy between a man and a woman, both of whom possess no
impediment to marry, voluntarily carried on and devoid of any deceit on
the part of respondent, is neither so corrupt nor so unprincipled as to
warrant the imposition of disciplinary sanction against him, even if as a
result of such relationship a child was born out of wedlock.[9]
Respondent and complainant were sweethearts whose sexual relations
were evidently consensual. We do not find complainants assertions that
she had been forced into sexual intercourse, credible. She continued to
see and be respondents girlfriend even after she had given birth to a son
in 1964 and until 1971. All those years of amicable and intimate relations
refute her allegations that she was forced to have sexual congress with
him. Complainant was then an adult who voluntarily and actively pursued
their relationship and was not an innocent young girl who could be easily
led astray. Unfortunately, respondent chose to marry and settle
permanently with another woman. We cannot castigate a man for
seeking out the partner of his dreams, for marriage is a sacred and
PINEDAPCGRNMAN
perpetual bond which should be entered into because of love, not for any
other reason.
We cannot help viewing the instant complaint as an act of revenge of a
woman scorned, bitter and unforgiving to the end. It is also intended to
make respondent suffer severely and it seems, perpetually, sacrificing
the profession he worked very hard to be admitted into. Even assuming
that his past indiscretions are ignoble, the twenty-six years that
respondent has been prevented from being a lawyer constitute sufficient
punishment therefor. During this time there appears to be no other
indiscretion attributed to him.[10] Respondent, who is now sixty-two years
of age, should thus be allowed, albeit belatedly, to take the lawyers oath.
WHEREFORE, the instant petition is hereby DISMISSED. Respondent
Simeon Barranco, Jr. is ALLOWED to take his oath as a lawyer upon
payment of the proper fees.
SO ORDERED.
[A.C. No. 4585. November 12, 2004]
MICHAEL P. BARRIOS, complainant, vs. ATTY. FRANCISCO P.
MARTINEZ, respondent
DECISION
PER CURIAM:
This is a verified petition[1] for disbarment filed against Atty. Francisco
Martinez for having been convicted by final judgment in Criminal Case
No. 6608 of a crime involving moral turpitude by Branch 8 of the Regional
Trial Court (RTC) of Tacloban City.[2]
The dispositive portion of the same states:
WHEREFORE, this Court finds the accused Francisco Martinez guilty
beyond reasonable doubt of the crime for (sic) violation of Batas
Pambansa Blg. 22 charged in the Information. He is imposed a penalty
of ONE (1) YEAR imprisonment and fine double the amount of the check
which is EIGHT THOUSAND (8,000.00) PESOS, plus payment of the tax
pursuant to Section 205 of the Internal Revenue Code and costs against
the accused.[3]
Complainant further submitted our Resolution dated 13 March 1996 and
the Entry of Judgment from this Court dated 20 March 1996.
On 03 July 1996, we required[4] respondent to comment on said petition
within ten (10) days from notice. On 17 February 1997, we issued a
second resolution[5] requiring him to show cause why no disciplinary
action should be imposed on him for failure to comply with our earlier
Resolution, and to submit said Comment. On 07 July 1997, we imposed
a fine of P1,000 for respondents failure to file said Comment and required
him to comply with our previous resolution within ten days.[6] On 27 April
1998, we fined respondent an additional P2,000 and required him to
comply with the resolution requiring his comment within ten days under
pain of imprisonment and arrest for a period of five (5) days or until his
compliance.[7] Finally, on 03 February 1999, or almost three years later,
we declared respondent Martinez guilty of Contempt under Rule 71, Sec.
3[b] of the 1997 Rules of Civil Procedure and ordered his imprisonment
until he complied with the aforesaid resolutions.[8]
On 05 April 1999, the National Bureau of Investigation reported[9] that
respondent was arrested in Tacloban City on 26 March 1999, but was
subsequently released after having shown proof of compliance with the
resolutions of 17 February 1997 and 27 April 1998 by remitting the
amount of P2,000 and submitting his long overdue Comment.
In the said Comment[10] dated 16 March 1999, respondent stated that:
1. He failed to respond to our Resolution dated 17 February 1997 as he
was at that time undergoing medical treatment at Camp Ruperto
Kangleon in Palo, Leyte;
2. Complainant Michael Barrios passed away sometime in June 1997;
Page 56
and
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LEGAL ETHICS
3. Said administrative complaint is an offshoot of a civil case which was
decided in respondents favor (as plaintiff in the said case). Respondent
avers that as a result of his moving for the execution of judgment in his
favor and the eviction of the family of herein complainant Michael Barrios,
the latter filed the present administrative case.
In the meantime, on 11 September 1997, a certain Robert Visbal of the
Provincial Prosecution Office of Tacloban City submitted a letter[11] to the
First Division Clerk of Court alleging that respondent Martinez also stood
charged in another estafa case before the Regional Trial Court of
Tacloban City, Branch 9, as well as a civil case involving the victims of
the Doa Paz tragedy in 1987, for which the Regional Trial Court of Basey,
Samar, Branch 30 rendered a decision against him, his appeal thereto
having been dismissed by the Court of Appeals.
In the said Decision of Branch 30 of the Regional Trial Court of
Basey, Samar,[12] it appears that herein respondent Atty. Martinez
offered his legal services to the victims of the Doa Paz tragedy for
free. However, when the plaintiff in the said civil case was issued a check
for P90,000 by Sulpicio Lines representing compensation for the deaths
of his wife and two daughters,Atty. Martinez asked plaintiff to endorse
said check, which was then deposited in the account of Dr. Martinez,
Atty. Martinezs wife. When plaintiff asked for his money, he was only
able to recover a total of P30,000. Atty. Martinez claimed the remaining
P60,000 as his attorneys fees. Holding that it was absurd and totally
ridiculous that for a simple legal service he would collect 2/3 of the money
claim, the trial court ordered Atty. Martinez to pay the plaintiff therein the
amount of P60,000 with interest, P5,000 for moral and exemplary
damages, and the costs of the suit.
Said trial court also made particular mention of Martinezs dilatory tactics
during the trial, citing fourteen (14) specific instances thereof. Martinezs
appeal from the above judgment was dismissed by the Court of Appeals
for his failure to file his brief, despite having been granted three thirty
(30)-day extensions to do so.[13]
On 16 June 1999, we referred[14] the present case to the Integrated Bar
of the Philippines (IBP) for investigation, report, and recommendation.
The report[15] of IBP Investigating Commissioner Winston D. Abuyuan
stated in part that:
Several dates for the hearing of the case were scheduled but none of the
parties appeared before the Commission, until finally it was considered
submitted for resolution last 27 June 2002. On the same date respondent
filed a motion for the dismissal of the case on the ground that the
complainant died sometime in June 1997 and that dismissal is warranted
because the case filed by him does not survive due to his demise; as a
matter of fact, it is extinguished upon his death.
We disagree with respondents contention.
Pursuant to Section 1, Rule 139-B of the Revised Rules of Court, the
Honorable Supreme Court or the IBP may motu proprio initiate the
proceedings when they perceive acts of lawyers which deserve
sanctions or when their attention is called by any one and a probable
cause exists that an act has been perpetrated by a lawyer which requires
disciplinary sanctions.
As earlier cited, respondent lawyers propensity to disregard or ignore
orders of the Honorable Supreme Court for which he was fined twice,
arrested and imprisoned reflects an utter lack of good moral character.
Respondents conviction of a crime involving moral turpitude (estafa
and/or violation of BP Blg. 22) clearly shows his unfitness to protect the
administration of justice and therefore justifies the imposition of
sanctions against him (see In re: Abesamis, 102 Phil. 1182; In
re: Jaramillo, 101 Phil. 323; In re: Vinzon, 19 SCRA 815; Medina vs.
Bautista, 12 SCRA 1, People vs. Tuanda, Adm. Case No. 3360, 30 Jan.
1990).
PINEDAPCGRNMAN
WHEREFORE, premises considered, it is respectfully recommended
that respondent Atty. Francisco P. Martinez be disbarred and his name
stricken out from the Roll of Attorneys immediately.
On 27 September 2003, the IBP Board of Governors passed a
Resolution[16] adopting and approving the report and recommendation of
its Investigating Commissioner.
On 03 December 2003, respondent Martinez filed a Motion for
Reconsideration and/or Reinvestigation,[17] in the instant case alleging
that:
1. The Report and Recommendation of the IBP Investigating
Commissioner is tantamount to a deprivation of property without due
process of law, although admittedly the practice of law is a privilege;
2. If respondent is given another chance to have his day in court and
allowed to adduce evidence, the result/outcome would be entirely
different from that arrived at by the Investigating Commissioner; and
3. Respondent is now 71 years of age, and has served the judiciary in
various capacities (from acting city judge to Municipal Judges League
Leyte Chapter President) for almost 17 years prior to resuming his law
practice.
On 14 January 2004, we required[18] complainant to file a comment within
ten days. On 16 February 2004, we received a Manifestation and
Motion[19] from complainants daughter, Diane Francis Barrios Latoja,
alleging that they had not been furnished with a copy of respondents
Motion, notwithstanding the fact that respondent ostensibly lives next
door to complainants family. Required to Comment on 17 May 2004,
respondent has until now failed to do so.
The records show that respondent, indeed, failed to furnish a copy of
said Motion to herein complainant. The records also show that
respondent was given several opportunities to present evidence by this
Court[20] as well as by the IBP.[21] Indeed, he only has himself to blame,
for he has failed to present his case despite several occasions to do so. It
is now too late in the day for respondent to ask this court to receive his
evidence.
This court, moreover, is unwilling to exercise the same patience that it
did when it waited for his comment on the original petition. At any rate,
after a careful consideration of the records of the instant case, we find
the evidence on record sufficient to support the IBPs findings.
Under Sec. 27, Rule 138 of the Rules of Court, a member of the Bar may
be disbarred or suspended from his office as attorney by the Supreme
Court for any deceit, malpractice, or other gross misconduct in such
office, grossly immoral conduct, or by reason of his conviction of a crime
involving moral turpitude, or for any violation of the oath which he is
required to take before admission to practice, or for a willful disobedience
of any lawful order of a superior court, or for corruptly or willfully
appearing as an attorney for a party to a case without authority to do so.
In the present case, respondent has been found guilty and convicted by
final judgment for violation of B.P. Blg. 22 for issuing a worthless check
in the amount of P8,000. The issue with which we are now concerned is
whether or not the said crime is one involving moral turpitude. [22]
Moral turpitude includes everything which is done contrary to justice,
honesty, modesty, or good morals.[23] It involves an act of baseness,
vileness, or depravity in the private duties which a man owes his fellow
men, or to society in general, contrary to the accepted and customary
rule of right and duty between man and woman, or conduct contrary to
justice, honesty, modesty, or good morals.[24]
In People of the Philippines v. Atty. Fe Tuanda,[25] where the erring
lawyer was indefinitely suspended for having been convicted of three
counts of violation of B.P. Blg. 22, we held that conviction by final
judgment of violation of B.P. Blg. 22 involves moral turpitude and stated:
Page 57
We should add that the crimes of which respondent was convicted
also import deceit and violation of her attorney's oath and the Code of
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Professional Responsibility under both of which she was bound to "obey
the laws of the land." Conviction of a crime involving moral
turpitude might not (as in the instant case, violation of B.P. Blg. 22 does
not) relate to the exercise of the profession of a lawyer; however,
itcertainly relates to and affects the good moral character of a person
convicted of such offense[26] (emphasis supplied)
Over ten years later, we reiterated the above ruling in Villaber v.
Commission on Elections[27] and disqualified a congressional candidate
for having been sentenced by final judgment for three counts of violation
of B.P. Blg. 22 in accordance with Sec. 12 of the Omnibus Election Code,
which states:
SEC. 12. Disqualifications. Any person who has been declared by
competent authority insane or incompetent, or has been sentenced by
final judgment for subversion, insurrection, rebellion, or for any offense
for which he has been sentenced to a penalty of more than eighteen
months, or for a crime involving moral turpitude, shall be disqualified to
be a candidate and to hold any office, unless he has been given plenary
pardon or granted amnesty. (emphasis supplied)
Enumerating the elements of that crime, we held that the act of a person
in issuing a check knowing at the time of the issuance that he or she
does not have sufficient funds in, or credit with, the drawee bank for the
check in full upon its presentment, is a manifestation of moral
turpitude. Notwithstanding therein petitioners averment that he was not
a lawyer, we nevertheless applied our ruling in People v. Tuanda, to the
effect that
(A) conviction for violation of B.P. Blg. 22, imports deceit and certainly
relates to and affects the good moral character of a person. [Indeed] the
effects of the issuance of a worthless check, as we held in the landmark
case of Lozano v. Martinez, through Justice Pedro L. Yap, transcends
the private interests of the parties directly involved in the transaction and
touches the interests of the community at large. The mischief it creates
is not only a wrong to the payee or holder, but also an injury to the public
since the circulation of valueless commercial papers can very well pollute
the channels of trade and commerce, injure the banking system and
eventually hurt the welfare of society and the public interest. Thus,
paraphrasing Black's definition, a drawer who issues an unfunded check
deliberately reneges on his private duties he owes his fellow men or
society in a manner contrary to accepted and customary rule of right and
duty, justice, honesty or good morals.[28] (emphasis supplied)
In the recent case of Barrientos v. Libiran-Meteoro,[29] we stated that:
(T)he issuance of checks which were later dishonored for having been
drawn against a closed account indicates a lawyers unfitness for the trust
and confidence reposed on her. It shows a lack of personal honesty and
good moral character as to render her unworthy of public confidence.
[Cuizon v. Macalino, A.C. No. 4334, 07 July 2004] The issuance of a
series of worthless checks also shows the remorseless attitude of
respondent, unmindful to the deleterious effects of such act to the public
interest and public order. [Lao v. Medel, 405 SCRA 227] It also manifests
a lawyers low regard for her commitment to the oath she has taken when
she joined her peers, seriously and irreparably tarnishing the image of
the profession she should hold in high esteem. [Sanchez v. Somoso,
A.C. No. 6061, 03 October 2003]
Clearly, therefore, the act of a lawyer in issuing a check without sufficient
funds to cover the same constitutes such willful dishonesty and immoral
conduct as to undermine the public confidence in law and lawyers. And
while the general rule is that a lawyer may not be suspended or
disbarred, and the court may not ordinarily assume jurisdiction to
discipline him for misconduct in his non-professional or private capacity,
where, however, the misconduct outside of the lawyer's professional
dealings is so gross a character as to show him morally unfit for the office
and unworthy of the privilege which his licenses and the law confer on
PINEDAPCGRNMAN
him, the court may be justified in suspending or removing him from the
office of attorney.[30]
The argument of respondent that to disbar him now is tantamount to a
deprivation of property without due process of law is also untenable. As
respondent himself admits, the practice of law is a privilege. The purpose
of a proceeding for disbarment is to protect the administration of justice
by requiring that those who exercise this important function shall be
competent, honorable and reliable; men in whom courts and clients may
repose confidence.[31] A proceeding for suspension or disbarment is not
in any sense a civil action where the complainant is plaintiff and the
respondent lawyer is a defendant. Disciplinary proceedings involve no
private interest and afford no redress for private grievance. They are
undertaken and prosecuted solely for the public welfare, and for the
purpose of preserving courts of justice from the official ministrations of
persons unfit to practice them.[32] Verily, lawyers must at all times
faithfully perform their duties to society, to the bar, to the courts and to
their clients. Their conduct must always reflect the values and norms of
the legal profession as embodied in the Code of Professional
Responsibility. On these considerations, the Court may disbar or
suspend lawyers for any professional or private misconduct showing
them to be wanting in moral character, honesty, probity and good
demeanor or to be unworthy to continue as officers of the Court.[33]
Nor are we inclined to look with favor upon respondents plea that if given
another chance to have his day in court and to adduce evidence, the
result/outcome would be entirely different from that arrived at. We note
with displeasure the inordinate length of time respondent took in
responding to our requirement to submit his Comment on the original
petition to disbar him.These acts constitute a willful disobedience of the
lawful orders of this Court, which under Sec. 27, Rule 138 of the Rules
of Court is in itself a cause sufficient for suspension or disbarment.Thus,
from the time we issued our first Resolution on 03 July 1996 requiring
him to submit his Comment, until 16 March 1999, when he submitted
said Comment to secure his release from arrest, almost three years had
elapsed.
It is revealing that despite the unwarranted length of time it took
respondent to comply, his Comment consists of all of two pages, a copy
of which, it appears, he neglected to furnish complainant.[34] And while
he claims to have been confined while undergoing medical treatment at
the time our Resolution of 17 February 1997 was issued, he merely
reserved the submission of a certification to that effect. Nor, indeed, was
he able to offer any explanation for his failure to submit his Comment
from the time we issued our first Resolution of 03 July 1996 until 16
March 1999. In fact, said Comment alleged, merely, that the
complainant, Michael Barrios, passed away sometime in June 1997, and
imputed upon the latter unsupported ill-motives for instituting the said
Petition against him, which argument has already been resolved
squarely in the abovementioned IBP report.
Moreover, the IBP report cited the failure of both parties to appear before
the Commission as the main reason for the long delay, until the same
was finally submitted for Resolution on 27 June 2002. Respondent,
therefore, squandered away seven years to have his day in court and
adduce evidence in his behalf, which inaction also unduly delayed the
courts prompt disposition of this petition.
In Pajares v. Abad Santos,[35] we reminded attorneys that there must be
more faithful adherence to Rule 7, Section 5 of the Rules of Court [now
Rule 7, Section 3] which provides that the signature of an attorney
constitutes a certificate by him that he has read the pleading and that to
the best of his knowledge, information and belief, there is good ground
to support it; and that it is not interposed for delay, and expressly
Page 58
admonishes that for a willful violation of this rule an attorney may be
subjected to disciplinary action.[36] It is noteworthy that in the past, the
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LEGAL ETHICS
Court has disciplined lawyers and judges for willful disregard of its orders
to file comments or appellants briefs, as a penalty for disobedience
thereof. [37]
For the same reasons, we are disinclined to take respondents old age
and the fact that he served in the judiciary in various capacities in his
favor. If at all, we hold respondent to a higher standard for it, for a judge
should be the embodiment of competence, integrity, and
independence,[38] and his conduct should be above reproach.[39] The fact
that respondent has chosen to engage in private practice does not mean
he is now free to conduct himself in less honorable or indeed in a less
than honorable manner.
We stress that membership in the legal profession is a
privilege,[40] demanding a high degree of good moral character, not only
as a condition precedent to admission, but also as a continuing
requirement for the practice of law.[41] Sadly, herein respondent falls
short of the exacting standards expected of him as a vanguard of the
legal profession.
The IBP Board of Governors recommended that respondent be
disbarred from the practice of law. We agree.
We come now to the matter of the penalty imposable in this case. In Co
v. Bernardino and Lao v. Medel, we upheld the imposition of one years
suspension for non-payment of debt and issuance of worthless checks,
or a suspension of six months upon partial payment of the
obligation.[42] However, in these cases, for various reasons, none of the
issuances resulted in a conviction by the erring lawyers for
either estafa or B.P. Blg. 22. Thus, we held therein that the issuance of
worthless checks constitutes gross misconduct, for which a lawyer may
be sanctioned with suspension from the practice of law.
In the instant case, however, herein respondent has been found
guilty and stands convicted by final judgment of a crime involving moral
turpitude. In People v. Tuanda, which is similar to this case in that both
respondents were convicted for violation of B.P. Blg. 22 which we have
held to be such a crime, we affirmed the order of suspension from the
practice of law imposed by the Court of Appeals, until further orders.
However, in a long line of cases, some of which were decided
after Tuanda, we have held disbarment to be the appropriate penalty for
conviction by final judgment for a crime involving moral turpitude. Thus:
1. In In The Matter of Disbarment Proceedings v. Narciso N.
Jaramillo,[43] we disbarred a lawyer convicted of estafa without
discussing the circumstances behind his conviction. We held that:
There is no question that the crime of estafa involves moral turpitude.
The review of respondent's conviction no longer rests upon us. The
judgment not only has become final but has been executed. No elaborate
argument is necessary to hold the respondent unworthy of the privilege
bestowed on him as a member of the bar. Suffice it to say that, by his
conviction, the respondent has proved himself unfit to protect the
administration of justice.[44]
2. In In Re: Dalmacio De Los Angeles,[45] a lawyer was convicted of the
crime of attempted bribery in a final decision rendered by the Court of
Appeals. And since bribery is admittedly a felony involving moral
turpitude (7 C.J.S., p. 736; 5 Am. Jur. p. 428), this Court, much as it
sympathizes with the plight of respondent, is constrained to decree his
disbarment as ordained by Section 25 of Rule 127.[46]
3. In Ledesma De Jesus-Paras v. Quinciano Vailoces,[47] the erring
lawyer acknowledged the execution of a document purporting to be a last
will and testament, which later turned out to be a forgery. He was found
guilty beyond reasonable doubt of the crime of falsification of public
document, which the Court held to be a crime involving moral turpitude,
said act being contrary to justice, honesty and good morals, and was
subsequently disbarred.
PINEDAPCGRNMAN
4. In In Re: Disbarment Proceedings Against Atty. Diosdado Q.
Gutierrez,[48] Atty. Gutierrez was convicted for murder. After serving a
portion of the sentence, he was granted a conditional pardon by the
President. Holding that the pardon was not absolute and thus did not
reach the offense itself but merely remitted the unexecuted portion of his
term, the court nevertheless disbarred him.
5. In In Re: Atty. Isidro P. Vinzon,[49] Atty. Vinzon was convicted of the
crime of estafa for misappropriating the amount of P7,000.00, and was
subsequently disbarred. We held thus:
Upon the other hand, and dealing now with the merits of the case, there
can be no question that the term moral turpitude includes everything
which is done contrary to justice, honesty, or good morals. In essence
and in all respects, estafa, no doubt, is a crime involving moral turpitude
because the act is unquestionably against justice, honesty and good
morals (In re Gutierrez, Adm. Case No. 263, July 31, 1962; Bouvier's
Law Dictionary; In re Basa, 41 Phil. 275-76). As respondent's guilt
cannot now be questioned, his disbarment is inevitable. (emphasis
supplied)[50]
6. In In Re: Attorney Jose Avancea,[51] the conditional pardon extended
to the erring lawyer by the Chief Executive also failed to relieve him of
the penalty of disbarment imposed by this court.
7. In In Re Disbarment of Rodolfo Pajo,[52] a lawyer was charged and
found guilty of the crime of falsification of public document for having
prepared and notarized a deed of sale of a parcel of land knowing that
the supposed affiant was an impostor and that the vendor had been dead
for almost eight years. We ruled that disbarment follows as a
consequence of a lawyer's conviction by final judgment of a crime
involving moral turpitude, and since the crime of falsification of public
document involves moral turpitude, we ordered respondents name
stricken off the roll of attorneys.
8. In Adelina T. Villanueva v. Atty. Teresita Sta. Ana,[53] we upheld the
recommendation of the IBP Board of Governors to disbar a lawyer who
had been convicted of estafa through falsification of public documents,
because she was totally unfit to be a member of the legal profession.[54]
9. In Victoriano P. Resurreccion v. Atty. Ciriaco C. Sayson,[55] a lawyer
was disbarred for having been convicted of estafa by final judgment for
misappropriating the funds of his client.
In this case as well, we find disbarment to be the appropriate penalty. Of
all classes and professions, the lawyer is most sacredly bound to uphold
the laws. He is their sworn servant; and for him, of all men in the world,
to repudiate and override the laws, to trample them underfoot and to
ignore the very bands of society, argues recreancy to his position and
office and sets a pernicious example to the insubordinate and dangerous
elements of the body politic.[56]
WHEREFORE, respondent Atty. Francisco P. Martinez is
hereby DISBARRED and his name is ORDERED STRICKEN from the
Roll of Attorneys. Let a copy of this Decision be entered in the
respondents record as a member of the Bar, and notice of the same be
served on the Integrated Bar of the Philippines, and on the Office of the
Court Administrator for circulation to all courts in the country.
SO ORDERED.
A.C. No. 9115 September 17, 2014
REBECCA MARIE UY YUPANGCO-NAKPIL, Complainant,
vs.
ATTY. ROBERTO L. UY, Respondent.
RESOLUTION
PERLAS-BERNABE, J.:
This is an administrative case against respondent Atty. Roberto L. Uy
Page 59
(respondent) for unprofessional and unethical conduct, stemming from a
complaint filed by private complainant Rebecca Marie Uy Yupangco-
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Nakpil (Rebecca), represented by her attorney-in-fact, Bella Asuncion
Pollo (Bella).
The Facts
Rebecca is the natural niece and adopted daughter of the late Dra.
Pacita Uy y Lim (Pacita).1 She was adjudged as the sole and exclusive
legal heir of Paci ta by virtue of an Order2 dated August 10, 1999 issued
by the Regional Trial Court of Manila, Branch 34 in SPEC. PROC. No.
95-7520 l (SP 95-75201). At the time of her death, Pacita was a
stockholder in several corporations primarily engaged in acquiring,
developing, and leasing real properties, namely, Uy Realty Company,
Inc. (URCI), Jespajo Realty Corporation, Roberto L. Uy Realty and
Development Corporation, Jesus Uy Realty Corporation, Distelleria La
Jarolina, Inc., and Pacita Lim Uy Realty, Inc.3
In her Complaint4 filed on May 9, 2005,5 Rebecca, through her attorney-
in fact, Bella, averred that respondent, her alleged illegitimate
halfcousin,6 continuously failed and refused to comply with the court
order in SP 95-75201 declaring her as the successor-in-interest to all of
Pacitas properties, as well as her requests for the accounting and
delivery of the dividends and other proceeds or benefits coming from
Pacitas stockholdings in the aforementioned corporations.7 She added
that respondent mortgaged a commercial property covered by Transfer
Certificate of Title No. T-133606 (subject property) in favor of Philippine
Savings Bank in the total amount of 54,000,000.00,8 despite an existing
Trust Agreement9 executed on October 15, 1993 (subject Trust
Agreement) wherein respondent, in his capacity as President of URCI,
already recognized her to be the true and beneficial owner of the
same.10 Accordingly, she demanded that respondent return the said
property by executing the corresponding deed of conveyance in her favor
together with an inventory and accounting of all the proceeds therefrom,
but to no avail.11 In this relation, Rebecca claimed that it was only on
September 2, 2005 or after she had already instituted various legal
actions and remedies that respondent and URCIagreed to transfer the
subject property to her pursuant to a compromise agreement.12
In his Answer With Compulsory Counterclaim,13 respondent denied
Rebeccas allegations and raised the affirmative defenses of forum
shopping and prescription. He pointed out that Rebecca had filed several
cases raising the single issue on the correct interpretation of the subject
trust agreement. He also contended that the parties transactions in this
case were made way back in 1993 and 1995 without a complaint having
been filed until Bella came into the picture and instituted various suits
covering the same issue.14 As such, he sought the dismissal of the
complaint, and further prayed for the payment of moral damages and
attorneys fees by way of counterclaim.15
On September 8, 2005, Rebecca filed a Motion to Withdraw
Complaint16 in CBD Case No. 05-1484 for the reason that "the facts
surrounding the same arose out of a misunderstanding and
misapprehension of the real facts surrounding their dispute."17
However, on October 6, 2005, Bella filed a Manifestation with Leave of
Court to File Motion for Intervention,18praying that the investigation of the
charges against respondent continue in order to weed out erring
members of the legal profession.19
The Report and Recommendation of the IBP
On October 8, 2007, the Integrated Bar of the Philippines (IBP)
Investigating Commissioner issuedhis Report and
Recommendation,20 finding respondent guilty of serious misconduct in
violation of Rule 1.01, Canon 1 of the Code of Professional Responsibility
(Code), and, thus, recommended the penalty of suspension for a period
of six (6) months.21
On matters of procedure, the Investigating Commissioner opined that
Rebeccas motion to withdraw did notserve as a bar for the further
consideration and investigation ofthe administrative case against
PINEDAPCGRNMAN
respondent. As basis, he cites Section 5, Rule 139-B of the Rules of
Court which provides that "[n]o investigation shall be interrupted or
terminated by reason of the desistance, settlement, compromise,
restitution, withdrawal of the charges, or failure of the complainant to
prosecute the same." Separately, the Investigating Commissioner
denied the claim of forum shopping, noting that disciplinary cases are sui
generis and may, therefore, proceed independently.22
On the merits of the charge, the Investigating Commissioner observed
that respondent lacked the good moral character required from members
of the Bar when the latter failed to comply with the demands of Rebecca
under the subject trust agreement, not to mention his unworthy and
deceitful acts of mortgaging the subject property without the formers
consent. In fine, respondent was found guilty of serious misconduct in
violation of Rule 1.01, Canon 1 of the Code, for which the above-stated
penalty was recommended.23
In a Resolution24 dated November 10, 2007, the IBP Board of Governors
adopted and approved the Investigating Commissioners Report and
Recommendation.
The Issue Before the Court
The basic issue in this case is whether or not respondent should be held
administratively liable.
The Courts Ruling
Rule 1.01, Canon 1 of the Code, as itis applied to the members of the
legal profession, engraves an overriding prohibition against any form of
misconduct, viz.:
CANON 1 - A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY
THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND
LEGAL PROCESSES.
Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct.
The gravity of the misconduct determinative as it is of the errant
lawyers penalty depends on the factual circumstances of each case.
Here, the Court observes that the squabble which gave rise to the
present administrative case largely constitutes an internal affair, which
had already been laid to rest by the parties. This is clearly exhibited by
Rebeccas motion to withdraw filed in this case as well as the
compromise agreement forged in Civil Case No. 04-108887 which
involves the subject propertys alleged disposition in violation of the
subject trust agreement. As the Court sees it, his failure to complywith
the demands of Rebecca which she takes as an invocation of her rights
under the subject trust agreement as well as respondents acts of
mortgaging the subject property without the formers consent, sprung
from his own assertion of the rights he believed he had over the subject
property. The propriety of said courses of action eludes the Courts
determination,for that matter had never been resolved on its merits in
view of the aforementioned settlement. Rebecca even states in her
motion to withdraw that the allegations she had previously made arose
out of a "misapprehension of the real facts surrounding their dispute" and
even adds that respondent "had fully explained to [her] the real nature
and extent of her inheritance x x x toher entire satisfaction," leading her
to state that she is "now fully convinced that [her] complaint has no basis
in fact and in law."25 Accordingly, with the admitted misstatement of facts,
the observations of the Investigating Commissioner, as adopted by the
IBP, hardly hold water so as to support the finding of "serious
misconduct" which would warrant its recommended penalty.1wphi1
Be that as it may, the Court, nonetheless, finds that respondent
committed some form of misconduct by, as admitted, mortgaging the
subject property, notwithstanding the apparent dispute over the same.
Regardless of the merits of his own claim, respondent should have
Page 60
exhibited prudent restraint becoming of a legal exemplar. He should not
have exposed himself even to the slightest risk of committing a property
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LEGAL ETHICS
violation nor any action which would endanger the Bar's reputation.
Verily, members of the Bar are expected at all times to uphold the
integrity and dignity of the legal profession and refrain from any act or
omission which might lessen the trust and confidence reposed by the
public in the fidelity, honesty, and integrity of the legal profession.26 By
no insignificant measure, respondent blemished not only his integrity as
a member of the Bar, but also that of the legal profession. In other words,
his conduct fell short of the exacting standards expected of him as a
guardian of law and justice. Although to a lesser extent as compared to
what has been ascribed by the IBP, the Court still holds respondent guilty
of violating Rule 1. 01, Canon 1 of the Code. Considering that this is his
first offense as well as the peculiar circumstances of this case, the Court
believes that a fine of P15,000.00 would suffice.
WHEREFORE, respondent Atty. Roberto L. Uy is found GUILTY of
violating Rule 1.01, Canon 1 of the Code of Professional Responsibility.
Accordingly, he is ordered to pay a FINE of P15,000.00 within ten (10)
days from receipt of this Resolution. Further, he is STERNLY WARNED
that a repetition of the same or similar acts will be dealt with more
severely.
Let a copy of this Resolution be attached to respondent's record in this
Court as attorney. Further, let copies of this Resolution be furnished the
Integrated Bar of the Philippines and the Office of the Court
Administrator, which is directed to circulate them to all the courts in the
country for their information and guidance.
SO ORDERED.
RULE 1.02: NOT TO COUNSEL OR DEFY LAW
A lawyer shall not counsel or abet activities aimed at defiance of
the law or at lessening confidence in the legal system.
A.C. No. 6057 June 27, 2006
PETER T. DONTON, Complainant,
vs.
ATTY. EMMANUEL O. TANSINGCO, Respondent.
DECISION
CARPIO, J.:
The Case
This is a disbarment complaint against respondent Atty. Emmanuel O.
Tansingco ("respondent") for serious misconduct and deliberate violation
of Canon 1,1 Rules 1.012 and 1.023 of the Code of Professional
Responsibility ("Code").
The Facts
In his Complaint dated 20 May 2003, Peter T. Donton ("complainant")
stated that he filed a criminal complaint for estafa thru falsification of a
public document4 against Duane O. Stier ("Stier"), Emelyn A. Maggay
("Maggay") and respondent, as the notary public who notarized the
Occupancy Agreement.
The disbarment complaint arose when respondent filed a counter-charge
for perjury5 against complainant. Respondent, in his affidavit-complaint,
stated that:
5. The OCCUPANCY AGREEMENT dated September 11, 1995 was
prepared and notarized by me under the following circumstances:
A. Mr. Duane O. Stier is the owner and long-time resident of a real
property located at No. 33 Don Jose Street, Bgy. San Roque, Murphy,
Cubao, Quezon City.
B. Sometime in September 1995, Mr. Stier a U.S. citizen and thereby
disqualified to own real property in his name agreed that the property
be transferred in the name of Mr. Donton, a Filipino.
C. Mr. Stier, in the presence of Mr. Donton, requested me to prepare
several documents that would guarantee recognition of him being the
actual owner of the property despite the transfer of title in the name of
Mr. Donton.
PINEDAPCGRNMAN
D. For this purpose, I prepared, among others, the OCCUPANCY
AGREEMENT, recognizing Mr. Stiers free and undisturbed use of the
property for his residence and business operations. The OCCUPANCY
AGREEMENT was tied up with a loan which Mr. Stier had extended to
Mr. Donton.6
Complainant averred that respondents act of preparing the Occupancy
Agreement, despite knowledge that Stier, being a foreign national, is
disqualified to own real property in his name, constitutes serious
misconduct and is a deliberate violation of the Code. Complainant
prayed that respondent be disbarred for advising Stier to do something
in violation of law and assisting Stier in carrying out a dishonest scheme.
In his Comment dated 19 August 2003, respondent claimed that
complainant filed the disbarment case against him upon the instigation
of complainants counsel, Atty. Bonifacio A. Alentajan,7 because
respondent refused to act as complainants witness in the criminal case
against Stier and Maggay. Respondent admitted that he "prepared and
notarized" the Occupancy Agreement and asserted its genuineness and
due execution.
In a Resolution dated 1 October 2003, the Court referred the matter to
the Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.
The IBPs Report and Recommendation
In her Report dated 26 February 2004 ("Report"), Commissioner
Milagros V. San Juan ("Commissioner San Juan") of the IBP
Commission on Bar Discipline found respondent liable for taking part in
a "scheme to circumvent the constitutional prohibition against foreign
ownership of land in the Philippines." Commissioner San Juan
recommended respondents suspension from the practice of law for two
years and the cancellation of his commission as Notary Public.
In Resolution No. XVI-2004-222 dated 16 April 2004, the IBP Board of
Governors adopted, with modification, the Report and recommended
respondents suspension from the practice of law for six months.
On 28 June 2004, the IBP Board of Governors forwarded the Report to
the Court as provided under Section 12(b), Rule 139-B8 of the Rules of
Court.
On 28 July 2004, respondent filed a motion for reconsideration before
the IBP. Respondent stated that he was already 76 years old and would
already retire by 2005 after the termination of his pending cases. He also
said that his practice of law is his only means of support for his family
and his six minor children.
In a Resolution dated 7 October 2004, the IBP denied the motion for
reconsideration because the IBP had no more jurisdiction on the case as
the matter had already been referred to the Court.
The Ruling of the Court
The Court finds respondent liable for violation of Canon 1 and Rule 1.02
of the Code.
A lawyer should not render any service or give advice to any client which
will involve defiance of the laws which he is bound to uphold and obey.9 A
lawyer who assists a client in a dishonest scheme or who connives in
violating the law commits an act which justifies disciplinary action against
the lawyer.10
By his own admission, respondent admitted that Stier, a U.S. citizen, was
disqualified from owning real property.11Yet, in his motion for
reconsideration,12 respondent admitted that he caused the transfer of
ownership to the parcel of land to Stier. Respondent, however, aware of
the prohibition, quickly rectified his act and transferred the title in
complainants name. But respondent provided "some safeguards" by
preparing several documents,13including the Occupancy Agreement,
that would guarantee Stiers recognition as the actual owner of the
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property despite its transfer in complainants name. In effect, respondent
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
advised and aided Stier in circumventing the constitutional prohibition
against foreign ownership of lands14 by preparing said documents.
Respondent had sworn to uphold the Constitution. Thus, he violated his
oath and the Code when he prepared and notarized the Occupancy
Agreement to evade the law against foreign ownership of lands.
Respondent used his knowledge of the law to achieve an unlawful end.
Such an act amounts to malpractice in his office, for which he may be
suspended.15
In Balinon v. De Leon,16 respondent Atty. De Leon was suspended from
the practice of law for three years for preparing an affidavit that virtually
permitted him to commit concubinage. In In re: Santiago,17 respondent
Atty. Santiago was suspended from the practice of law for one year for
preparing a contract which declared the spouses to be single again after
nine years of separation and allowed them to contract separately
subsequent marriages.
WHEREFORE, we find respondent Atty. Emmanuel O.
Tansingco GUILTY of violation of Canon 1 and Rule 1.02 of the Code of
Professional Responsibility. Accordingly, we SUSPEND respondent
Atty. Emmanuel O. Tansingco from the practice of law for SIX
MONTHS effective upon finality of this Decision.
Let copies of this Decision be furnished the Office of the Bar Confidant
to be appended to 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.
SO ORDERED.
G.R. No. 1203, In re Terrell, 2 Phil. 266
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
In the matter of the suspension of HOWARD D. TERRELL from the
practice of law.
Solicitor-General Araneta for Government.
W. A. Kincaid for defendant.
PER CURIAM:
Howard D. Terrell, an attorney-at-law, was ordered to show cause in the
Court of First Instance, in the city of Manila, on the 5th day of February,
1903, why he should not be suspended as a member of the bar of the
city of Manila for the reasons:
First, that he had assisted in the organization of the "Centro Bellas Artes"
Club, after he had been notified that the said organization was made for
the purpose of evading the law then in force in said city; and,
Secondly, for acting as attorney for said "Centro Bellas Artes" during the
time of and after its organization, which organization was known to him
to be created for the purpose of evading the law.
The accused appeared on the return day, and by his counsel, W. A.
Kincaid, made answer to these charges, denying the same, and filed
affidavits in answer thereto. After reading testimony given by said
Howard D. Terrell, in the case of the United States vs. H. D.
Terrell,1 wherein he was charged with estafa, and after reading the said
affidavits in his behalf, and hearing his counsel, the court below found,
and decided as a fact, that the charges aforesaid made against Howard
D. Terrell were true, and thereupon made an order suspending him from
his office as a lawyer in the Philippine Islands, and directed the clerk of
the court to transmit to this court a certified copy of the order of
suspension, as well as a full statement of the facts upon which the same
was based.
We have carefully considered these facts, and have reached the
conclusion that they were such as to justify the court below in arriving at
the conclusion that the knowledge and acts of the accused in connection
PINEDAPCGRNMAN
with the organization of the "Centro Bellas Artes" Club were of such a
nature and character as to warrant his suspension from practice.
The promoting of organizations, with knowledge of their objects, for the
purpose of violating or evading the laws against crime constitutes such
misconduct on the part of an attorney, an officer of the court, as amounts
to malpractice or gross misconduct in his office, and for which he may be
removed or suspended. (Code of Civil Procedure, sec. 21.) The assisting
of a client in a scheme which the attorney knows to be dishonest, or the
conniving at a violation of law, are acts which justify disbarment.
In this case, however, inasmuch as the defendant in the case of the
United States, vs. Terrell was acquitted on the charge of estafa, and has
not, therefore, been convicted of crime, and as the acts with which he is
charged in this proceeding, while unprofessional and hence to be
condemned, are not criminal in their nature, we are of opinion that the
ends of justice will be served by the suspension of said Howard D. Terrell
from the practice of law in the Philippine Islands for the term of one year
from the 7th day of February, 1903.
It is therefore directed that the said Howard D. Terrell be suspended from
the practice of law for a term of one year from February 7, 1903. It is so
ordered.
[G.R. No. 159486-88. November 25, 2003]
PRESIDENT JOSEPH EJERCITO ESTRADA, petitioner, vs. THE
HONORABLE SANDIGANBAYAN [SPECIAL DIVISION], HON.
MINITA CHICO-NAZARIO, HON. EDILBERTO SANDOVAL, HON.
TERESITA LEONARDO-DE CASTRO, and THE PEOPLE OF THE
PHILIPPINES, respondents.
RESOLUTION
PER CURIAM:
On 23 September 2003, this Court issued its resolution in the above-
numbered case; it read:
The case for consideration has been brought to this Court via a Petition
for Certiorari under Rule 65 of the Rules of Court filed by Joseph Ejercito
Estrada, acting through his counsel Attorney Alan F. Paguia, against the
Sandiganbayan, et al. The Petition prays
1. That Chief Justice Davide and the rest of the members of the
Honorable Court disqualify themselves from hearing and deciding this
petition;
2. That the assailed resolutions of the Sandiganbayan be vacated and
set aside; and
3. That Criminal Cases No. 26558, No. 26565 and No. 26905 pending
before the Sandiganbayan be dismissed for lack of jurisdiction.
Attorney Alan F. Paguia, speaking for petitioner, asserts that the
inhibition of the members of the Supreme Court from hearing the petition
is called for under Rule 5.10 of the Code of Judicial Conduct prohibiting
justices or judges from participating in any partisan political activity which
proscription, according to him, the justices have violated by attending the
EDSA 2 Rally and by authorizing the assumption of Vice-President
Gloria Macapagal Arroyo to the Presidency in violation of the 1987
Constitution. Petitioner contends that the justices have thereby
prejudged a case that would assail the legality of the act taken by
President Arroyo. The subsequent decision of the Court in Estrada v.
Arroyo (353 SCRA 452 and 356 SCRA 108) is, petitioner states, a patent
mockery of justice and due process.
Attorney Paguia first made his appearance for petitioner when he filed
an Omnibus Motion on 19 May 2003, before the Sandiganbayan, asking
that the appointment of counsels de officio (sic) be declaredfunctus
officio and that, being the now counsel de parte, he be notified of all
subsequent proceedings in Criminal Cases No. 26558, No. 26565 and
No. 26905 pending therein. Finally, Attorney Paguia asked that all the
Page 62
foregoing criminal cases against his client be dismissed.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
During the hearing of the Omnibus Motion on 30 May 2003, petitioner
presented to the court several portions of the book, entitled Reforming
the Judiciary, written by Justice Artemio Panganiban, to be part of the
evidence for the defense. On 9 June 2003, petitioner filed a motion
pleading, among other things, that
a) x x x President Estrada be granted the opportunity to prove the truth
of the statements contained in Justice Artemio Panganibans book,
REFORMING THE JUDICIARY, in relation to the prejudgment
committed by the Supreme Court justices against President Estrada in
the subject case/s of Estrada v. Arroyo, 353 SCRA 452 and 356 SCRA
108; and,
b) A subpoena ad testificandum and duces tecum be issued to Justice
Artemio Panganiban, Justice Antonio Carpio, Justice Renato Corona,
Secretary Angelo Reyes of the Department of National Defense, Vice
President Gloria Macapagal-Arroyo, Senator Aquilino Pimentel, Jr., and
Chief Justice Hilario Davide, Jr. for them to testify and bring whatever
supporting documents they may have in relation to their direct and
indirect participation in the proclamation of Vice President Gloria
Macapagal Arroyo on January 20, 2001, as cited in the book of Justice
Panganiban, including the material events that led to that proclamation
and the ruling/s in the Estrada vs. Arroyo, supra. (Rollo, pp. 6-7.)
The truth referred to in paragraph a) of the relief sought in the motion of
petitioner pertains to what he claims should have been included in the
resolution of the Sandiganbayan; viz:
The request of the movant is simply for the Court to include in its Joint
Resolution the TRUTH of the acts of Chief Justice Davide, et al., last
January 20, 2001 in:
a) going to EDSA 2;
b) authorizing the proclamation of Vice-President Arroyo as President on
the ground of permanent disability even without proof of compliance with
the corresponding constitutional conditions, e.g., written declaration by
either the President or majority of his cabinet; and
c) actually proclaiming Vice-President Arroyo on that same ground of
permanent disability.
It is patently unreasonable for the Court to refuse to include these
material facts which are obviously undeniable. Besides, it is the only
defense of President Estrada. (Petition, Rollo, pp. 13-14.)
On 2 July 2003, the Sandiganbayan issued an order denying the
foregoing motion, as well as the motion to dismiss, filed by petitioner.
Forthwith, petitioner filed a Mosyong Pangrekonsiderasyon of the
foregoing order. According to Attorney Paguia, during the hearing of
his Mosyong Pangrekonsiderasyon on 11 June 2003, the three justices
of the Special Division of the Sandiganbayan made manifest their bias
and partiality against his client. Thus, he averred, Presiding Justice
Minita V. Chico-Nazario supposedly employed foul and disrespectful
language when she blurted out, Magmumukha naman kaming
gago, (Rollo, p. 13.) and Justice Teresita Leonardo-De Castro
characterized the motion as insignificant even before the prosecution
could file its comments or opposition thereto, (Rollo, p. 12.) remarking in
open court that to grant Estradas motion would result in chaos and
disorder. (Ibid.) Prompted by the alleged bias and partial attitude of the
Sandiganbayan justices, Attorney Paguia filed, on 14 July 2003, a
motion for their disqualification. On 31 July 2003, petitioner received the
two assailed resolutions, i.e., the resolution (Promulgated on 30 July
2003.) of 28 July 2003, denying petitioners motion for reconsideration
of 6 July 2003; viz:
WHEREFORE, premises considered, accused-movant Joseph Ejercito
Estradas Mosyong Pangrekonsiderasyon (Na tumutukoy sa Joint
Resolution ng Hulyo 2, 2003) dated July 6, 2003 is DENIED for lack of
merit. (Rollo, p. 37.)
PINEDAPCGRNMAN
and the resolution (Promulgated on 30 July 2003.) of 25 July 2003,
denying petitioners motion for disqualification of 14 July 2003; viz:
WHEREFORE, prescinding from all the foregoing, the Court, for want of
merit, hereby DENIES the Motion for Disqualification. (Rollo, p. 48.)
The instant petition assailing the foregoing orders must be DISMISSED
for gross insufficiency in substance and for utter lack of merit. The
Sandiganbayan committed no grave abuse of discretion, an
indispensable requirement to warrant a recourse to the extraordinary
relief of petition for certiorari under Rule 65 of the Revised Rules of Civil
Procedure. On the one hand, petitioner would disclaim the authority and
jurisdiction of the members of this tribunal and, on the other hand, he
would elevate the petition now before it to challenge the two resolutions
of the Sandiganbayan. He denounces the decision as being a patent
mockery of justice and due process. Attorney Pagula went on to state
that-
The act of the public officer, if LAWFUL, is the act of the public office.
But the act of the public officer, if UNLAWFUL, is not the act of the public
office. Consequently, the act of the justices, if LAWFUL, is the act of the
Supreme Court. But the act of the justices, if UNLAWFUL, is not the act
of the Supreme Court. It is submitted that the Decision in ESTRADA vs.
ARROYO being patently unlawful in view of Rule 5.10 of the CODE OF
JUDICIAL CONDUCT, is not the act of the Supreme Court but is merely
the wrong or trespass of those individual Justices who falsely spoke and
acted in the name of the Supreme Court. (Urbano vs. Chavez, 183 SCRA
[347]). Furthermore, it would seem absurd to allow the Justices to use
the name of the Supreme Court as a shield for their UNLAWFUL act.
(Petition, Rollo, p. 11.)
Criticism or comment made in good faith on the correctness or
wrongness, soundness or unsoundness, of a decision of the Court would
be welcome for, if well-founded, such reaction can enlighten the court
and contribute to the correction of an error if committed. (In Re Sotto, 82
Phil 595.)
The ruling in Estrada v. Arroyo, being a final judgment, has long put to
end any question pertaining to the legality of the ascension of Arroyo into
the presidency. By reviving the issue on the validity of the assumption of
Mme. Gloria Macapagal-Arroyo to the presidency, Attorney Paguia is
vainly seeking to breathe life into the carcass of a long dead issue.
Attorney Paguia has not limited his discussions to the merits of his clients
case within the judicial forum; indeed, he has repeated his assault on the
Court in both broadcast and print media. Rule 13.02 of the Code of
Professional Responsibility prohibits a member of the bar from making
such public statements on any pending case tending to arouse public
opinion for or against a party. By his acts, Attorney Paguia may have
stoked the fires of public dissension and posed a potentially dangerous
threat to the administration of justice.
It is not the first time that Attorney Paguia has exhibited similar conduct
towards the Supreme Court. In a letter, dated 30 June 2003, addressed
to Chief Justice Hilario G. Davide, Jr., and Associate Justice Artemio V.
Panganiban, he has demanded, in a clearly disguised form of forum
shopping, for several advisory opinions on matters pending before the
Sandiganbayan. In a resolution, dated 08 July 2003, this Court has
strongly warned Attorney Alan Paguia, on pain of disciplinary sanction,
to desist from further making, directly or indirectly, similar submissions
to this Court or to its Members. But, unmindful of the well-meant
admonition to him by the Court, Attorney Paguia appears to persist on
end.
WHEREFORE, the instant petition for certiorari is DISMISSED, and the
Court hereby orders Attorney Alan Paguia, counsel for petitioner Joseph
Ejercito Estrada, to SHOW CAUSE, within ten days from notice hereof,
Page 63
why he should not be sanctioned for conduct unbecoming a lawyer and
an officer of the Court.
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LEGAL ETHICS
On 10 October 2003, Atty. Paguia submitted his compliance with the
show-cause order. In a three-page pleading, Atty. Paguia, in an obstinate
display of defiance, repeated his earlier claim of political partisanship
against the members of the Court.
Canon 5.10 of the Code of Judicial Conduct, which Atty. Paguia has
tirelessly quoted to give some semblance of validity for his groundless
attack on the Court and its members, provides -
Rule 5.10. A judge is entitled to entertain personal views on political
questions. But to avoid suspicion of political partisanship, a judge shall
not make political speeches, contribute to party funds, publicly endorse
candidates for political office or participate in other partisan political
activities.
Section 79(b) of the Omnibus Election Code defines the term partisan
political activities; the law states:
The term election campaign or partisan political activity refers to an act
designed to promote the election or defeat of a particular candidate or
candidates to a public office which shall include:
(1) Forming organizations, associations, clubs, committees or other
groups of persons for the purpose of soliciting votes and/or undertaking
any campaign for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies, parades,
or other similar assemblies, for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against a candidate.
(3) Making speeches, announcements or commentaries, or holding
interviews for or against the election of any candidate for public office;
(4) Publishing or distributing campaign literature or materials designed
to support or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against
a candidate.
It should be clear that the phrase partisan political activities, in its
statutory context, relates to acts designed to cause the success or the
defeat of a particular candidate or candidates who have filed certificates
of candidacy to a public office in an election. The taking of an oath of
office by any incoming President of the Republic before the Chief Justice
of the Philippines is a traditional official function of the Highest
Magistrate. The assailed presence of other justices of the Court at such
an event could be no different from their appearance in such other official
functions as attending the Annual State of the Nation Address by the
President of the Philippines before the Legislative Department.
The Supreme Court does not claim infallibility; it will not denounce
criticism made by anyone against the Court for, if well-founded, can truly
have constructive effects in the task of the Court, but it will not
countenance any wrongdoing nor allow the erosion of our peoples faith
in the judicial system, let alone, by those who have been privileged by it
to practice law in the Philippines.
Canon 11 of the Code of Professional Responsibility mandates that the
lawyer should observe and maintain the respect due to the courts and
judicial officers and, indeed, should insist on similar conduct by others.
In liberally imputing sinister and devious motives and questioning the
impartiality, integrity, and authority of the members of the Court, Atty.
Paguia has only succeeded in seeking to impede, obstruct and pervert
the dispensation of justice.
The attention of Atty. Paguia has also been called to the mandate of Rule
13.02 of the Code of Professional Responsibility prohibiting a member of
the bar from making such public statements on a case that may tend to
arouse public opinion for or against a party. Regrettably, Atty. Paguia
has persisted in ignoring the Courts well-meant admonition.
On the 7th September 2003 issue of the Daily Tribune, Atty. Paguia
wrote to say -
What is the legal effect of that violation of President Estradas right to due
process of law? It renders the decision in Estrada vs. Arroyo
PINEDAPCGRNMAN
unconstitutional and void. The rudiments of fair play were not observed.
There was no fair play since it appears that when President Estrada filed
his petition, Chief Justice Davide and his fellow justices had already
committed to the other party - GMA - with a judgment already made and
waiting to be formalized after the litigants shall have undergone the
charade of a formal hearing. After the justices had authorized the
proclamation of GMA as president, can they be expected to voluntarily
admit the unconstitutionality of their own act?
Unrelentingly, Atty. Paguia has continued to make public statements of
like nature.
The Court has already warned Atty. Paguia, on pain of disciplinary
sanction, to become mindful of his grave responsibilities as a lawyer and
as an officer of the Court. Apparently, he has chosen not to at all take
heed.
WHEREFORE, Attorney Alan Paguia is hereby indefinitely suspended
from the practice of law, effective upon his receipt hereof, for conduct
unbecoming a lawyer and an officer of the Court.
Let copies of this resolution be furnished the Office of the Bar Confidant,
the Integrated Bar of the Philippines and all courts of the land through
the Office of the Court Administrator.
SO ORDERED.
RULE 1.03: NOT TO ENCOURAGE LAWSUIT OR PROCEEDINGS
A lawyer shall not, for any corrupt motive or interest, encourage
any suit or proceeding or delay any man's cause.
[A.C. No. 4497. September 26, 2001]
MR. and MRS. VENUSTIANO G. SABURNIDO, complainants, vs.
ATTY. FLORANTE E. MADROO,[1] respondent.
DECISION
QUISUMBING, J.:
For our resolution is the administrative complaint[2] for disbarment of
respondent, Atty. Florante E. Madroo, filed by spouses Venustiano and
Rosalia Saburnido. Complainants allege that respondent has been
harassing them by filing numerous complaints against them, in addition
to committing acts of dishonesty.
Complainant Venustiano Saburnido is a member of the Philippine
National Police stationed at Balingasag, Misamis Oriental, while his wife
Rosalia is a public school teacher. Respondent is a former judge of the
Municipal Circuit Trial Court, Balingasag-Lagonglong, Misamis Oriental.
Previous to this administrative case, complainants also filed three
separate administrative cases against respondent.
In A. M. No. MTJ-90-383,[3] complainant Venustiano Saburnido filed
charges of grave threats and acts unbecoming a member of the judiciary
against respondent. Respondent was therein found guilty of pointing a
high-powered firearm at complainant, who was unarmed at the time,
during a heated altercation. Respondent was accordingly dismissed from
the service with prejudice to reemployment in government but without
forfeiture of retirement benefits.
Respondent was again administratively charged in the consolidated
cases of Sealana-Abbu v. Judge Madrono, A.M. No. 92-1-084-RTC
and Sps. Saburnido v. Judge Madrono, A.M. No. MTJ-90-486.[4]In the
first case, Assistant Provincial Prosecutor Florencia Sealana-Abbu
charged that respondent granted and reduced bail in a criminal case
without prior notice to the prosecution. In the second case, the spouses
Saburnido charged that respondent, in whose court certain confiscated
smuggled goods were deposited, allowed other persons to take the
goods but did not issue the corresponding memorandum receipts. Some
of the goods were lost while others were substituted with damaged
goods. Respondent was found guilty of both charges and his retirement
Page 64
benefits were forfeited.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
In the present case, the spouses Saburnido allege that respondent has
been harassing them by filing numerous complaints against them,
namely:
1. Adm. Case No. 90-0755,[5] for serious irregularity, filed by respondent
against Venustiano Saburnido. Respondent claimed that Venustiano
lent his service firearm to an acquaintance who thereafter extorted
money from public jeepney drivers while posing as a member of the then
Constabulary Highway Patrol Group.
2. Adm. Case No. 90-0758,[6] for falsification, filed by respondent against
Venustiano Saburnido and two others. Respondent averred that
Venustiano, with the help of his co-respondents in the case, inserted an
entry in the police blotter regarding the loss of Venustianos firearm.
3. Crim. Case No. 93-67,[7] for evasion through negligence under Article
224 of the Revised Penal Code, filed by respondent against Venustiano
Saburnido. Respondent alleged that Venustiano Saburnido, without
permission from his superior, took into custody a prisoner by final
judgment who thereafter escaped.
4. Adm. Case No. 95-33,[8] filed by respondent against Rosalia
Saburnido for violation of the Omnibus Election Code. Respondent
alleged that Rosalia Saburnido served as chairperson of the Board of
Election Inspectors during the 1995 elections despite being related to a
candidate for barangay councilor.
At the time the present complaint was filed, the three actions filed against
Venustiano Saburnido had been dismissed while the case against
Rosalia Saburnido was still pending.
Complainants allege that respondent filed those cases against them in
retaliation, since they had earlier filed administrative cases against him
that resulted in his dismissal from the judiciary. Complainants assert that
due to the complaints filed against them, they suffered much moral,
mental, physical, and financial damage. They claim that their children
had to stop going to school since the family funds were used up in
attending to their cases.
For his part, respondent contends that the grounds mentioned in the
administrative cases in which he was dismissed and his benefits forfeited
did not constitute moral turpitude. Hence, he could not be disbarred
therefor. He then argues that none of the complaints he filed against
complainants was manufactured. He adds that he was so unlucky that
Saburnido was not convicted.[9] He claims that the complaint for serious
irregularity against Venustiano Saburnido was dismissed only because
the latter was able to antedate an entry in the police blotter stating that
his service firearm was lost. He also points out that Venustiano was
suspended when a prisoner escaped during his watch. As for his
complaint against Rosalia Saburnido, respondent contends that by
mentioning this case in the present complaint, Rosalia wants to deprive
him of his right to call the attention of the proper authorities to a violation
of the Election Code.
In their reply, complainants reiterate their charge that the cases against
them were meant only to harass them. In addition, Rosalia Saburnido
stressed that she served in the BEI in 1995 only because the supposed
chairperson was indisposed. She stated that she told the other BEI
members and the pollwatchers that she was related to one candidate
and that she would desist from serving if anyone objected.Since nobody
objected, she proceeded to dispense her duties as BEI chairperson. She
added that her relative lost in that election while respondents son won.
In a resolution dated May 22, 1996,[10] we referred this matter to the
Integrated Bar of the Philippines (IBP) for investigation, report, and
recommendation.
In its report submitted to this Court on October 16, 2000, the IBP noted
that respondent and his counsel failed to appear and present evidence
in the hearing of the case set for January 26, 2000, despite notice. Thus,
respondent was considered to have waived his right to present evidence
PINEDAPCGRNMAN
in his behalf during said hearing. Neither did respondent submit his
memorandum as directed by the IBP.
After evaluating the evidence before it, the IBP concluded that
complainants submitted convincing proof that respondent indeed
committed acts constituting gross misconduct that warrant the imposition
of administrative sanction. The IBP recommends that respondent be
suspended from the practice of law for one year.
We have examined the records of this case and find no reason to
disagree with the findings and recommendation of the IBP.
A lawyer may be disciplined for any conduct, in his professional or private
capacity, that renders him unfit to continue to be an officer of the
court.[11] Canon 7 of the Code of Professional Responsibility commands
all lawyers to at all times uphold the dignity and integrity of the legal
profession. Specifically, in Rule 7.03, the Code provides:
Rule 7.03. -- A lawyer shall not engage in conduct that adversely reflects
on his fitness to practice law, nor shall he whether in public or private life,
behave in a scandalous manner to the discredit of the legal profession.
Clearly, respondents act of filing multiple complaints against herein
complainants reflects on his fitness to be a member of the legal
profession. His act evinces vindictiveness, a decidedly undesirable trait
whether in a lawyer or another individual, as complainants were
instrumental in respondents dismissal from the judiciary. We see in
respondents tenacity in pursuing several cases against complainants not
the persistence of one who has been grievously wronged but the
obstinacy of one who is trying to exact revenge.
Respondents action erodes rather than enhances public perception of
the legal profession. It constitutes gross misconduct for which he may be
suspended, following Section 27, Rule 138 of the Rules of Court, which
provides:
SEC. 27. Disbarment or suspension of attorneys by Supreme Court,
grounds therefor. -- A member of the bar may be disbarred or suspended
from his office as attorney by the Supreme Court for any deceit,
malpractice, or other gross misconduct in such office, grossly immoral
conduct, or by reason of his conviction of a crime involving moral
turpitude, or for any violation of the oath which he is required to take
before admission to practice, or for a wilful disobedience appearing as
an attorney for a party to a case without authority so to do. xxx
Complainants ask that respondent be disbarred. However, we find that
suspension from the practice of law is sufficient to discipline respondent.
The supreme penalty of disbarment is meted out only in clear cases of
misconduct that seriously affect the standing and character of the lawyer
as an officer of the court.[12] While we will not hesitate to remove an erring
attorney from the esteemed brotherhood of lawyers, where the evidence
calls for it, we will also not disbar him where a lesser penalty will suffice
to accomplish the desired end.[13] In this case, we find suspension to be
a sufficient sanction against respondent. Suspension, we may add, is not
primarily intended as a punishment, but as a means to protect the public
and the legal profession.[14]
WHEREFORE, respondent Atty. Florante E. Madroo is found GUILTY of
gross misconduct and is SUSPENDED from the practice of law for one
year with a WARNING that a repetition of the same or similar act will be
dealt with more severely. Respondents suspension is effective upon his
receipt of notice of this decision. Let notice of this decision be spread in
respondents record as an attorney in this Court, and notice of the same
served on the Integrated Bar of the Philippines and on the Office of the
Court Administrator for circulation to all the courts concerned.
SO ORDERED.
PEDRO L. LINSANGAN, A.C. No. 6672
Complainant,
Page 65
- v e r s u s -.
ATTY. NICOMEDES TOLENTINO,
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Respondent.
Promulgated:
September 4, 2009
x-----------------------------------------x
RESOLUTION
CORONA, J.:
This is a complaint for disbarment[1] filed by Pedro Linsangan of the
Linsangan Linsangan & Linsangan Law Office against Atty. Nicomedes
Tolentino for solicitation of clients and encroachment of professional
services.
Complainant alleged that respondent, with the help of paralegal Fe Marie
Labiano, convinced his clients[2] to transfer legal representation.
Respondent promised them financial assistance[3] and expeditious
collection on their claims.[4] To induce them to hire his services, he
persistently called them and sent them text messages.
To support his allegations, complainant presented the sworn
affidavit[5] of James Gregorio attesting that Labiano tried to prevail upon
him to sever his lawyer-client relations with complainant and utilize
respondents services instead, in exchange for a loan of P50,000.
Complainant also attached respondents calling card:[6]
PINEDAPCGRNMAN
canons[11] of the Code of Professional Responsibility (CPR). Moreover,
he contravened the rule against soliciting cases for gain, personally or
through paid agents or brokers as stated in Section 27, Rule 138 [12] of
the Rules of Court. Hence, the CBD recommended that respondent be
reprimanded with a stern warning that any repetition would merit a
heavier penalty.
We adopt the findings of the IBP on the unethical conduct of respondent
but we modify the recommended penalty.
The complaint before us is rooted on the alleged intrusion by respondent
into complainants professional practice in violation of Rule 8.02 of the
CPR. And the means employed by respondent in furtherance of the said
misconduct themselves constituted distinct violations of ethical rules.
Canons of the CPR are rules of conduct all lawyers must adhere to,
including the manner by which a lawyers services are to be made known.
Thus, Canon 3 of the CPR provides:
CANON 3 - A LAWYER IN MAKING KNOWN HIS LEGAL SERVICES
SHALL USE ONLY TRUE, HONEST, FAIR, DIGNIFIED AND
OBJECTIVE INFORMATION OR STATEMENT OF FACTS.
Time and time again, lawyers are reminded that the practice of law is a
profession and not a business; lawyers should not advertise their talents
as merchants advertise their wares.[13] To allow a lawyer to advertise his
talent or skill is to commercialize the practice of law, degrade the
profession in the publics estimation and impair its ability to efficiently
render that high character of service to which every member of the bar
is called.[14]

Front Rule 2.03 of the CPR provides:

NICOMEDES TOLENTINO RULE 2.03. A LAWYER SHALL NOT DO OR PERMIT TO BE DONE

LAW OFFFICE ANY ACT DESIGNED PRIMARILY TO SOLICIT LEGAL BUSINESS.
CONSULTANCY & MARITIME SERVICES
W/ FINANCIAL ASSISTANCE Hence, lawyers are prohibited from soliciting cases for the purpose of
gain, either personally or through paid agents or brokers.[15] Such
Fe Marie L. Labiano actuation constitutes malpractice, a ground for disbarment.[16]
Paralegal
Rule 2.03 should be read in connection with Rule 1.03 of the CPR which
1st MIJI Mansion, 2nd Flr. Rm. M-01 Tel: 362-7820 provides:
6th Ave., cor M.H. Del Pilar Fax: (632) 362-7821
Grace Park, Caloocan City Cel.: (0926) 2701719 RULE 1.03. A LAWYER SHALL NOT, FOR ANY CORRUPT MOTIVE
OR INTEREST, ENCOURAGE ANY SUIT OR PROCEEDING OR
DELAY ANY MANS CAUSE.

Back
SERVICES OFFERED: This rule proscribes ambulance chasing (the solicitation of almost any
CONSULTATION AND ASSISTANCE kind of legal business by an attorney, personally or through an agent in
TO OVERSEAS SEAMEN order to gain employment)[17] as a measure to protect the community
REPATRIATED DUE TO ACCIDENT, from barratry and champerty.[18]
INJURY, ILLNESS, SICKNESS, DEATH Complainant presented substantial evidence[19] (consisting of the sworn
AND INSURANCE BENEFIT CLAIMS statements of the very same persons coaxed by Labiano and referred to
ABROAD. respondents office) to prove that respondent indeed solicited legal
(emphasis supplied) business as well as profited from referrals suits.
Hence, this complaint.
Respondent, in his defense, denied knowing Labiano and authorizing the Although respondent initially denied knowing Labiano in his answer, he
printing and circulation of the said calling card.[7] later admitted it during the mandatory hearing.
The complaint was referred to the Commission on Bar Discipline (CBD)
of the Integrated Bar of the Philippines (IBP) for investigation, report and Through Labianos actions, respondents law practice was benefited.
recommendation.[8] Hapless seamen were enticed to transfer representation on the strength
Based on testimonial and documentary evidence, the CBD, in its report of Labianos word that respondent could produce a more favorable result.
Page 66

and recommendation,[9] found that respondent had encroached on the

professional practice of complainant, violating Rule 8.02[10] and other

Intelligentia et Scientia Semper Mea

LEGAL ETHICS
Based on the foregoing, respondent clearly solicited employment
violating Rule 2.03, and Rule 1.03 and Canon 3 of the CPR and Section
27, Rule 138 of the Rules of Court.
With regard to respondents violation of Rule 8.02 of the CPR, settled is
the rule that a lawyer should not steal another lawyers client nor induce
the latter to retain him by a promise of better service, good result or
reduced fees for his services.[20] Again the Court notes that respondent
never denied having these seafarers in his client list nor receiving
benefits from Labianos referrals. Furthermore, he never denied Labianos
connection to his office.[21] Respondent committed an unethical,
predatory overstep into anothers legal practice. He cannot escape
liability under Rule 8.02 of the CPR.
Moreover, by engaging in a money-lending venture with his clients as
borrowers, respondent violated Rule 16.04:
Rule 16.04 A lawyer shall not borrow money from his client unless the
clients interests are fully protected by the nature of the case or by
independent advice. Neither shall a lawyer lend money to a client except,
when in the interest of justice, he has to advance necessary expenses
in a legal matter he is handling for the client.
The rule is that a lawyer shall not lend money to his client. The only
exception is, when in the interest of justice, he has to advance necessary
expenses (such as filing fees, stenographers fees for transcript of
stenographic notes, cash bond or premium for surety bond, etc.) for a
matter that he is handling for the client.
The rule is intended to safeguard the lawyers independence of mind so
that the free exercise of his judgment may not be adversely affected.[22] It
seeks to ensure his undivided attention to the case he is handling as well
as his entire devotion and fidelity to the clients cause. If the lawyer lends
money to the client in connection with the clients case, the lawyer in
effect acquires an interest in the subject matter of the case or an
additional stake in its outcome.[23] Either of these circumstances may
lead the lawyer to consider his own recovery rather than that of his client,
or to accept a settlement which may take care of his interest in the verdict
to the prejudice of the client in violation of his duty of undivided fidelity to
the clients cause.[24]
As previously mentioned, any act of solicitation constitutes
malpractice[25] which calls for the exercise of the Courts disciplinary
powers. Violation of anti-solicitation statutes warrants serious sanctions
for initiating contact with a prospective client for the purpose of obtaining
employment.[26] Thus, in this jurisdiction, we adhere to the rule to protect
the public from the Machiavellian machinations of unscrupulous lawyers
and to uphold the nobility of the legal profession.
Considering the myriad infractions of respondent (including violation of
the prohibition on lending money to clients), the sanction recommended
by the IBP, a mere reprimand, is a wimpy slap on the wrist. The proposed
penalty is grossly incommensurate to its findings.
A final word regarding the calling card presented in evidence by
petitioner. A lawyers best advertisement is a well-merited reputation for
professional capacity and fidelity to trust based on his character and
conduct.[27] For this reason, lawyers are only allowed to announce their
services by publication in reputable law lists or use of simple professional
cards.
Professional calling cards may only contain the following details:
(a) lawyers name;
(b) name of the law firm with which he is connected;
(c) address;
PINEDAPCGRNMAN
(d) telephone number and
(e) special branch of law practiced.[28]
Labianos calling card contained the phrase with financial assistance.
The phrase was clearly used to entice clients (who already had
representation) to change counsels with a promise of loans to finance
their legal actions. Money was dangled to lure clients away from their
original lawyers, thereby taking advantage of their financial distress and
emotional vulnerability. This crass commercialism degraded the integrity
of the bar and deserved no place in the legal profession. However, in the
absence of substantial evidence to prove his culpability, the Court is not
prepared to rule that respondent was personally and directly responsible
for the printing and distribution of Labianos calling cards.
WHEREFORE, respondent Atty. Nicomedes Tolentino for violating
Rules 1.03, 2.03, 8.02 and 16.04 and Canon 3 of the Code of
Professional Responsibility and Section 27, Rule 138 of the Rules of
Court is hereby SUSPENDED from the practice of law for a period of one
year effective immediately from receipt of this resolution. He
is STERNLY WARNED that a repetition of the same or similar acts in the
future shall be dealt with more severely.
Let a copy of this Resolution be made part of his records in the Office of
the Bar Confidant, Supreme Court of the Philippines, and be furnished
to the Integrated Bar of the Philippines and the Office of the Court
Administrator to be circulated to all courts.
SO ORDERED.
RULE 1.04: ENCOURAGE CLIENT TO AVOID CONTROVERSY
A lawyer shall encourage his clients to avoid, end or settle a
controversy if it will admit of a fair settlement.
G.R. No. 104599 March 11, 1994
JON DE YSASI III, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION (FOURTH DIVISION),
CEBU CITY, and JON DE YSASI,respondents.
F.B. Santiago, Nalus & Associates for petitioner.
Ismael A. Serfino for private respondent.
REGALADO, J.:
The adage that blood is thicker than water obviously stood for naught in
this case, notwithstanding the vinculum of paternity and filiation between
the parties. It would indeed have been the better part of reason if herein
petitioner and private respondent had reconciled their differences in an
extrajudicial atmosphere of familial amity and with the grace of reciprocal
concessions. Father and son opted instead for judicial intervention
despite the inevitable acrimony and negative publicity. Albeit with
distaste, the Court cannot proceed elsewise but to resolve their dispute
with the same reasoned detachment accorded any judicial proceeding
before it.
The records of this case reveal that petitioner was employed by his
father, herein private respondent, as farm administrator of Hacienda
Manucao in Hinigaran, Negros Occidental sometime in April, 1980. Prior
thereto, he was successively employed as sales manager of Triumph
International (Phil.), Inc. and later as operations manager of Top Form
Manufacturing (Phil.), Inc. His employment as farm administrator was on
Page 67
a fixed salary, with other allowances covering housing, food, light, power,
telephone, gasoline, medical and dental expenses.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
As farm administrator, petitioner was responsible for the supervision of
daily activities and operations of the sugarcane farm such as land
preparation, planting, weeding, fertilizing, harvesting, dealing with third
persons in all matters relating to the hacienda and attending to such
other tasks as may be assigned to him by private respondent. For this
purpose, he lived on the farm, occupying the upper floor of the house
there.
Following his marriage on June 6, 1982, petitioner moved to Bacolod City
with his wife and commuted to work daily. He suffered various ailments
and was hospitalized on two separate occasions in June and August,
1982. In November, 1982, he underwent fistulectomy, or the surgical
removal of the fistula, a deep sinuous ulcer. During his recuperation
which lasted over four months, he was under the care of Dr. Patricio Tan.
In June, 1983, he was confined for acute gastroenteritis and, thereafter,
for infectious hepatitis from December, 1983 to January, 1984.
During the entire periods of petitioner's illnesses, private respondent took
care of his medical expenses and petitioner continued to receive
compensation. However, in April, 1984, without due notice, private
respondent ceased to pay the latter's salary. Petitioner made oral and
written demands for an explanation for the sudden withholding of his
salary from Atty. Apolonio Sumbingco, private respondent's auditor and
legal adviser, as well as for the remittance of his salary. Both demands,
however, were not acted upon.
Petitioner then filed an action with the National Labor Relations
Commission (NLRC, for brevity), Regional Arbitration Branch No. VI,
Bacolod City, on October 17, 1984, docketed therein as RAB Case No.
0452-84, against private respondent for illegal dismissal with prayer for
reinstatement without loss of seniority rights and payment of full back
wages, thirteenth month pay for 1983, consequential, moral and
exemplary damages, as well as attorney's fees.
On July 31, 1991, said complaint for illegal dismissal was dismissed by
the NLRC, 1 holding that petitioner abandoned his work and that the
termination of his employment was for a valid cause, but ordering private
respondent to pay petitioner the amount of P5,000.00 as penalty for his
failure to serve notice of said termination of employment to the
Department of Labor and Employment as required by Batas Pambansa
Blg. 130 and consonant with this Court's ruling in Wenphil Corporation
vs. National Labor Relations Commission, et al. 2 On appeal to the
Fourth Division of the NLRC, Cebu City, said decision was affirmed in
toto. 3
His motion for reconsideration 4 of said decision having been denied for
lack of merit, 5 petitioner filed this petition presenting the following issues
for resolution: (1) whether or not the petitioner was illegally dismissed;
(2) whether or not he is entitled to reinstatement, payment of back
wages, thirteenth month pay and other benefits; and (3) whether or not
he is entitled to payment of moral and exemplary damages and
attorney's fees because of illegal dismissal. The discussion of these
issues will necessarily subsume the corollary questions presented by
private respondent, such as the exact date when petitioner ceased to
function as farm administrator, the character of the pecuniary amounts
received by petitioner from private respondent, that is, whether the same
are in the nature of salaries or pensions, and whether or not there was
abandonment by petitioner of his functions as farm administrator.
In his manifestation dated September 14, 1992, the Solicitor General
recommended a modification of the decision of herein public respondent
sustaining the findings and conclusions of the Executive Labor Arbiter in
RAB Case No. 0452-84, 6 for which reason the NLRC was required to
submit its own comment on the petition. In compliance with the Court's
resolution of November 16, 1992, 7 NLRC filed its comment on February
12, 1992 largely reiterating its earlier position in support of the findings
of the Executive Labor Arbiter. 8
PINEDAPCGRNMAN
Before proceeding with a discussion of the issues, the observation of the
labor arbiter is worth noting:
This case is truly unique. What makes this case unique is the fact that
because of the special relationship of the parties and the nature of the
action involved, this case could very well go down (in) the annals of the
Commission as perhaps the first of its kind. For this case is an action
filed by an only son, his father's namesake, the only child and therefore
the only heir against his own father. 9
Additionally, the Solicitor General remarked:
. . . After an exhaustive reading of the records, two (2) observations were
noted that may justify why this labor case deserves special
considerations. First, most of the complaints that petitioner and private
respondent had with each other, were personal matters affecting father
and son relationship. And secondly, if any of the complaints pertain to
their work, they allow their personal relationship to come in the way. 10
I. Petitioner maintains that his dismissal from employment was illegal
because of want of just cause therefor and non-observance of the
requirements of due process. He also charges the NLRC with grave
abuse of discretion in relying upon the findings of the executive labor
arbiter who decided the case but did not conduct the hearings thereof.
Private respondent, in refutation, avers that there was abandonment by
petitioner of his functions as farm administrator, thereby arming private
respondent with a ground to terminate his employment at Hacienda
Manucao. It is also contended that it is wrong for petitioner to question
the factual findings of the executive labor arbiter and the NLRC as only
questions of law may be appealed for resolution by this Court.
Furthermore, in seeking the dismissal of the instant petition, private
respondent faults herein petitioner for failure to refer to the
corresponding pages of the transcripts of stenographic notes,
erroneously citing Sections 15(d) and 16(d), Rule 44 (should be Section
16[c] and [d],
Rule 46 and Section 1[g], Rule 50) of the Rules of Court, which provide
that want of page references to the records is a ground for dismissal of
an appeal.
Prefatorily, we take advertence of the provisions of Article 221 of the
Labor Code that technical rules of evidence prevailing in courts of law
and equity shall not be controlling, and that every and all reasonable
means to speedily and objectively ascertain the facts in each case shall
be availed of, without regard to technicalities of law or procedure in the
interest of due process.
It is settled that it is not procedurally objectionable for the decision in a
case to be rendered by a judge, or a labor arbiter for that matter, other
than the one who conducted the hearing. The fact that the judge who
heard the case was not the judge who penned the decision does not
impair the validity of the judgment, 11 provided that he draws up his
decision and resolution with due care and makes certain that they truly
and accurately reflect conclusions and final dispositions on the bases of
the facts of and evidence submitted in the case. 12
Thus, the mere fact that the case was initially assigned to Labor Arbiter
Ricardo T. Octavio, who conducted the hearings therein from December
5, 1984 to July 11, 1985, and was later transferred to Executive Labor
Arbiter Oscar S. Uy, who eventually decided the case, presents no
procedural infirmity, especially considering that there is a presumption of
regularity in the performance of a public officer's functions, 13 which
petitioner has not successfully rebutted.
We are constrained to heed the underlying policy in the Labor Code
relaxing the application of technical rules of procedure in labor cases in
the interest of due process, ever mindful of the long-standing legal
precept that rules of procedure must be interpreted to help secure, not
Page 68
defeat, justice. For this reason, we cannot indulge private respondent in
his tendency to nitpick on trivial technicalities to boost his arguments.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
The strength of one's position cannot be hinged on mere procedural
niceties but on solid bases in law and jurisprudence.
The fundamental guarantees of security of tenure and due process
dictate that no worker shall be dismissed except for just and authorized
cause provided by law and after due process. 14 Article 282 of the Labor
Code enumerates the causes for which an employer may validly
terminate an employment, to wit:
(a) serious misconduct or willful disobedience by the employee of the
lawful orders of his employer or representative in connection with his
work; (b) gross and habitual neglect by the employee of his duties; (c)
fraud or willful breach by the employee of the trust reposed in him by his
employer or duly authorized representative; (d) commission of a crime
or offense by the employee against the person of his employer or any
immediate member of his family or his duly authorized representative;
and (e) other causes analogous to the foregoing.
The employer may also terminate the services of any employee due to
the installation of labor saving devices, redundancy, retrenchment to
prevent losses or the closing or cessation of operation of the
establishment or undertaking, unless the closing is for the purpose of
circumventing the pertinent provisions of the Labor Code, by serving a
written notice on the workers and the Department of Labor and
Employment at least one (1) month before the intended date thereof, with
due entitlement to the corresponding separation pay rates provided by
law.15 Suffering from a disease by reason whereof the continued
employment of the employee is prohibited by law or is prejudicial to his
and his co-employee's health, is also a ground for termination of his
services provided he receives the prescribed separation pay. 16 On the
other hand, it is well-settled that abandonment by an employee of his
work authorizes the employer to effect the former's dismissal from
employment. 17
After a careful review of the records of this case, we find that public
respondent gravely erred in affirming the decision of the executive labor
arbiter holding that petitioner abandoned his employment and was not
illegally dismissed from such employment. For want of substantial bases,
in fact or
in law, we cannot give the stamp of finality and conclusiveness normally
accorded to the factual findings of an administrative agency, such as
herein public respondent NLRC, 18 as even decisions of administrative
agencies which are declared "final" by law are not exempt from judicial
review when so warranted. 19
The following perceptive disquisitions of the Solicitor General on this
point deserve acceptance:
It is submitted that the absences of petitioner in his work from October
1982 to December 1982, cannot be construed as abandonment of work
because he has a justifiable excuse. Petitioner was suffering from
perennial abscess in the peri-anal around the anus and fistula under the
medical attention of Dr. Patricio Tan of Riverside Medical Center, Inc.,
Bacolod City (Tsn, Vol. III, Dr. Tan, February 19, 1986 at 20-44).
This fact (was) duly communicated to private respondent by medical bills
sent to Hacienda Manucao (Tsn, Vol. III, Dr. Tan, January 22, 1987 at
49-50).
During the period of his illness and recovery, petitioner stayed in Bacolod
City upon the instruction(s) of private respondent to recuperate thereat
and to handle only administrative matters of the hacienda in that city. As
a manager, petitioner is not really obliged to live and stay 24 hours a day
inside Hacienda Manucao.
xxx xxx xxx
After evaluating the evidence within the context of the special
circumstances involved and basic human experience, petitioner's illness
and strained family relation with respondent Jon de Ysasi II may be
considered as justifiable reason for petitioner Jon de Ysasi III's absence
PINEDAPCGRNMAN
from work during the period of October 1982 to December 1982. In any
event, such absence does not warrant outright dismissal without notice
and hearing.
xxx xxx xxx
The elements of abandonment as a ground for dismissal of an employee
are as follows:
(1) failure to report for work or absence without valid or justifiable reason;
and (2) clear intention to sever the employer-employee tie (Samson
Alcantara, Reviewer in Labor and Social Legislation, 1989 edition, p.
133).
This Honorable Court, in several cases, illustrates what constitute
abandonment. In Dagupan Bus Company v. NLRC (191 SCRA 328), the
Court rules that for abandonment to arise, there must be a concurrence
of the intention to abandon and some overt act from which it may be
inferred that the employee has no more interest to work. Similarly,
in Nueva Ecija I Electric Cooperative, Inc. v. NLRC(184 SCRA 25), for
abandonment to constitute a valid cause for termination of employment,
there must be a deliberate, unjustified refusal of the employee to resume
his employment. . . Mere absence is not sufficient; it must be
accompanied by overt acts unerringly pointing to the fact that the
employee simply does not want to work anymore.
There are significant indications in this case, that there is no
abandonment. First, petitioner's absence and his decision to leave his
residence inside Hacienda Manucao, is justified by his illness and
strained family relations. Second he has some medical certificates to
show his frail health. Third, once able to work, petitioner wrote a letter
(Annex "J") informing private respondent of his intention to assume again
his employment. Last, but not the least, he at once instituted a complaint
for illegal dismissal when he realized he was unjustly dismissed. All these
are indications that petitioner had no intention to abandon his
employment. 20
The records show that the parties herein do not dispute the fact of
petitioner's confinement in the hospital for his various afflictions which
required medical treatment. Neither can it be denied that private
respondent was well aware of petitioner's state of health as the former
admittedly shouldered part of the medical and hospital bills and even
advised the latter to stay in Bacolod City until he was fit to work again.
The disagreement as to whether or not petitioner's ailments were so
serious as to necessitate hospitalization and corresponding periods for
recuperation is beside the point. The fact remains that on account of said
illnesses, the details of which were amply substantiated by the attending
physician, 21 and as the records are bereft of any suggestion of
malingering on the part of petitioner, there was justifiable cause for
petitioner's absence from work. We repeat, it is clear, deliberate and
unjustified refusal to resume employment and not mere absence that is
required to constitute abandonment as a valid ground for termination of
employment. 22
With his position as farm administrator of Hacienda Manucao, petitioner
unmistakably may be classified as a managerial employee 23 to whom
the law grants an amount of discretion in the discharge of his duties. This
is why when petitioner stated that "I assigned myself where I want to
go," 24 he was simply being candid about what he could do within the
sphere of his authority. His duties as farm administrator did not strictly
require him to keep regular hours or to be at the office premises at all
times, or to be subjected to specific control from his employer in every
aspect of his work. What is essential only is that he runs the farm as
efficiently and effectively as possible and, while petitioner may definitely
not qualify as a model employee, in this regard he proved to be quite
successful, as there was at least a showing of increased production
Page 69
during the time that petitioner was in charge of farm operations.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
If, as private respondent contends, he had no control over petitioner
during the years 1983 to 1984, this is because that was the period when
petitioner was recuperating from illness and on account of which his
attendance and direct involvement in farm operations were irregular and
minimal, hence the supervision and control exercisable by private
respondent as employer was necessarily limited. It goes without saying
that the control contemplated refers only to matters relating to his
functions as farm administrator and could not extend to petitioner's
personal affairs and activities.
While it was taken for granted that for purposes of discharging his duties
as farm administrator, petitioner would be staying at the house in the
farm, there really was no explicit contractual stipulation (as there was no
formal employment contract to begin with) requiring him to stay therein
for the duration of his employment or that any transfer of residence would
justify the termination of his employment. That petitioner changed his
residence should not be taken against him, as this is undeniably among
his basic rights, nor can such fact of transfer of residence per se be a
valid ground to terminate an employer-employee relationship.
Private respondent, in his pleadings, asserted that as he was yet
uncertain of his son's intention of returning to work after his confinement
in the hospital, he kept petitioner on the payroll, reported him as an
employee of thehacienda for social security purposes, and paid his
salaries and benefits with the mandated deductions therefrom until the
end of December, 1982. It was only in January, 1983 when he became
convinced that petitioner would no longer return to work that he
considered the latter to have abandoned his work and, for this reason,
no longer listed him as an employee. According to private respondent,
whatever amount of money was given to petitioner from that time until
April, 1984 was in the nature of a pension or an allowance or mere
gratuitous doles from a father to a son, and not salaries as, in fact, none
of the usual deductions were made therefrom. It was only in April, 1984
that private respondent completely stopped giving said pension or
allowance when he was angered by what he heard petitioner had been
saying about sending him to jail.
Private respondent capitalizes on the testimony of one Manolo Gomez
taken on oral deposition regarding petitioner's alleged statement to him,
"(h)e quemado los (p)ue(n)tes de Manucao" ("I have burned my bridges
with Manucao") as expressive of petitioner's intention to abandon his job.
In addition to insinuations of sinister motives on the part of petitioner in
working at the farm and thereafter abandoning the job upon
accomplishment of his objectives, private respondent takes the novel
position that the agreement to support his son after the latter abandoned
the administration of the farm legally converts the initial abandonment to
implied voluntary resignation. 25
As earlier mentioned, petitioner ripostes that private respondent
undoubtedly knew about petitioner's illness and even paid for his hospital
and other medical bills. The assertion regarding abandonment of work,
petitioner argues, is further belied by his continued performance of
various services related to the operations of the farm from May to the
last quarter of 1983, his persistent inquiries from his father's accountant
and legal adviser about the reason why his pension or allowance was
discontinued since April, 1984, and his indication of having recovered
and his willingness and capability to resume his work at the farm as
expressed in a letter dated September 14, 1984. 26 With these, petitioner
contends that it is immaterial how the monthly pecuniary amounts are
designated, whether as salary, pension or allowance, with or without
deductions, as he was entitled thereto in view of his continued service
as farm administrator. 27
To stress what was earlier mentioned, in order that a finding of
abandonment may justly be made there must be a concurrence of two
elements, viz.: (1) the failure to report for work or absence without valid
PINEDAPCGRNMAN
or justifiable reason, and (2) a clear intention to sever the employer-
employee relationship, with the second element as the more
determinative factor and being manifested by some overt acts. Such
intent we find dismally wanting in this case.
It will be recalled that private respondent himself admitted being unsure
of his son's plans of returning to work. The absence of petitioner from
work since mid-1982, prolonged though it may have been, was not
without valid causes of which private respondent had full knowledge. As
to what convinced or led him to believe that petitioner was no longer
returning to work, private respondent neither explains nor substantiates
by any reasonable basis how he arrived at such a conclusion.
Moreover, private respondent's claim of abandonment cannot be given
credence as even after January, 1983, when private respondent
supposedly "became convinced" that petitioner would no longer work at
the farm, the latter continued to perform services directly required by his
position as farm administrator. These are duly and correspondingly
evidenced by such acts as picking up some farm machinery/equipment
from G.A. Machineries, Inc., 28 claiming and paying for additional farm
equipment and machinery shipped by said firm from Manila to Bacolod
through Zip Forwarders, 29 getting the payment of the additional cash
advances for molasses for crop year 1983-1984 from Agrotex
Commodities, Inc., 30 and remitting to private respondent through
Atty. Sumbingco the sums collected along with receipts for medicine and
oil. 31
It will be observed that all of these chores, which petitioner took care of,
relate to the normal activities and operations of the farm. True, it is a
father's prerogative to request or even command his child to run errands
for him. In the present case, however, considering the nature of these
transactions, as well as the property values and monetary sums
involved, it is unlikely that private respondent would leave the matter to
just anyone. Prudence dictates that these matters be handled by
someone who can be trusted or at least be held accountable therefor,
and who is familiar with the terms, specifications and other details
relative thereto, such as an employee. If indeed petitioner had
abandoned his job or was considered to have done so by private
respondent, it would be awkward, or even out of place, to expect or to
oblige petitioner to concern himself with matters relating to or expected
of him with respect to what would then be his past and terminated
employment. It is hard to imagine what further authority an employer can
have over a dismissed employee so as to compel him to continue to
perform work-related tasks:
It is also significant that the special power of attorney 32 executed
by private respondent on June 26, 1980 in favor of petitioner, specifically
stating
xxx xxx xxx
That I, JON de YSASI, Filipino, of legal age, married, and a resident of
Hda. Manucao, hereinafter called and referred to as PRINCIPAL, am a
sugarcane planter, BISCOM Mill District, and a duly accredited planter-
member of the BINALBAGAN-ISABELA PLANTERS' ASSOCIATION,
INC.;
That as such planter-member of BIPA, I have check/checks with BIPA
representing payment for all checks and papers to which I am entitled to
(sic) as such planter-member;
That I have named, appointed and constituted as by these presents
I HEREBY NAME, APPOINT AND CONSTITUTE as my true and lawful
ATTORNEY-IN-FACT
JON de YSASI III
whose specimen signature is hereunder affixed, TO GET FOR ME and
in my name, place and stead, my check/checks aforementioned, said
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ATTORNEY-IN-FACT being herein given the power and authority to sign
for me and in my name, place and stead, the receipt or receipts or payroll
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LEGAL ETHICS
for the said check/checks. PROVIDED, HOWEVER, that my said
ATTORNEY-IN-FACT cannot cash the said check/checks, but to turn the
same over to me for my proper disposition.
That I HEREBY RATIFY AND CONFIRM the acts of my
Attorney-in-Fact in getting the said check/checks and signing the
receipts therefor.
That I further request that my said check/checks be made a "CROSSED
CHECK".
xxx xxx xxx
remained in force even after petitioner's employment was supposed to
have been terminated by reason of abandonment. Furthermore,
petitioner's numerous requests for an explanation regarding the
stoppage of his salaries and benefits, 33 the issuance of withholding tax
reports, 34 as well as correspondence reporting his full recovery and
readiness to go back to work, 35 and, specifically, his filing of the
complaint for illegal dismissal are hardly the acts of one who has
abandoned his work.
We are likewise not impressed by the deposition of Manolo Gomez, as
witness for private respondent, ascribing statements to petitioner
supposedly indicative of the latter's intention to abandon his work. We
perceive the irregularity in the taking of such deposition without the
presence of petitioner's counsel, and the failure of private respondent to
serve reasonably advance notice of its taking to said counsel, thereby
foreclosing his opportunity to
cross-examine the deponent. Private respondent also failed to serve
notice thereof on the Regional Arbitration Branch No. VI of the NLRC, as
certified to by Administrative Assistant Celestina G. Ovejera of said
office. 36 Fair play dictates that at such an important stage of the
proceedings, which involves the taking of testimony, both parties must
be afforded equal opportunity to examine and cross-examine a witness.
As to the monthly monetary amounts given to petitioner, whether
denominated as salary, pension, allowance orex gratia handout, there is
no question as to petitioner's entitlement thereto inasmuch as he
continued to perform services in his capacity as farm administrator. The
change in description of said amounts contained in the pay slips or in the
receipts prepared by private respondent cannot be deemed to be
determinative of petitioner's employment status in view of the peculiar
circumstances above set out. Besides, if such amounts were truly in the
nature of allowances given by a parent out of concern for his child's
welfare, it is rather unusual that receipts therefor 37 should be necessary
and required as if they were ordinary business expenditures.
Neither can we subscribe to private respondent's theory that petitioner's
alleged abandonment was converted into an implied voluntary
resignation on account of the father's agreement to support his son after
the latter abandoned his work. As we have determined that no
abandonment took place in this case, the monthly sums received by
petitioner, regardless of designation, were in consideration for services
rendered emanating from an employer-employee relationship and were
not of a character that can qualify them as mere civil support given out
of parental duty and solicitude. We are also hard put to imagine how
abandonment can be impliedly converted into a voluntary resignation
without any positive act on the part of the employee conveying a desire
to terminate his employment. The very concept of resignation as a
ground for termination by the employee of his employment38 does not
square with the elements constitutive of abandonment.
On procedural considerations, petitioner posits that there was a violation
by private respondent of the due process requirements under the Labor
Code for want of notice and hearing. 39 Private respondent, in opposition,
argues that Section 2, Rule XIV, Book V of the Omnibus Rules
Implementing the Labor Code applies only to cases where the employer
seeks to terminate the services of an employee on any of the grounds
PINEDAPCGRNMAN
enumerated under Article 282 of the Labor Code, but not to the situation
obtaining in this case where private respondent did not dismiss petitioner
on any ground since it was petitioner who allegedly abandoned his
employment. 40
The due process requirements of notice and hearing applicable to labor
cases are set out in Rule XIV, Book V of the Omnibus Rules
Implementing the Labor Code in this wise:
Sec. 2. Notice of Dismissal. Any employer who seeks to dismiss a
worker shall furnish him a written notice stating the particular acts or
omission(s) constituting the grounds for his dismissal. In cases of
abandonment of work, notice shall be served at the worker's last known
address.
xxx xxx xxx
Sec. 5. Answer and hearing. The worker may answer the allegations
as stated against him in the notice of dismissal within a reasonable
period from receipt of such notice. The employer shall afford the worker
ample opportunity to be heard and to defend himself with the assistance
of his representative, if he so desires.
Sec. 6. Decision to dismiss. The employer shall immediately notify a
worker in writing of a decision to dismiss him stating clearly the reasons
therefor.
Sec. 7. Right to contest dismissal. Any decision taken by the employer
shall be without prejudice to the right of the worker to contest the validity
or legality of his dismissal by filing a complaint with the Regional Branch
of the Commission.
xxx xxx xxx
Sec. 11. Report of dismissal. The employer shall submit a monthly
report to the Regional Office having jurisdiction over the place of work at
all dismissals effected by him during the month, specifying therein the
names of the dismissed workers, the reasons for their dismissal, the
dates of commencement and termination of employment, the positions
last held by them and such other information as may be required by the
Ministry for policy guidance and statistical purposes.
Private respondent's argument is without merit as there can be no
question that petitioner was denied his right to due process since he was
never given any notice about his impending dismissal and the grounds
therefor, much less a chance to be heard. Even as private respondent
controverts the applicability of the mandatory twin requirements of
procedural due process in this particular case, he in effect admits that no
notice was served by him on petitioner. This fact is corroborated by the
certification issued on September 5, 1984 by the Regional Director for
Region VI of the Department of Labor that no notice of termination of the
employment of petitioner was submitted thereto. 41
Granting arguendo that there was abandonment in this case, it
nonetheless cannot be denied that notice still had to be served upon the
employee sought to be dismissed, as the second sentence of Section 2
of the pertinent implementing rules explicitly requires service thereof at
the employee's last known address, by way of substantial compliance.
While it is conceded that it is the employer's prerogative to terminate an
employee, especially when there is just cause therefor, the requirements
of due process cannot be lightly taken. The law does not countenance
the arbitrary exercise of such a power or prerogative when it has the
effect of undermining the fundamental guarantee of security of tenure in
favor of the employee. 42
On the executive labor arbiter's misplaced reliance on the Wenphil case,
the Solicitor General rejoins as follows:
The Labor Arbiter held thus:
While we are in full agreement with the respondent as to his defense of
implied resignation and/or abandonment, records somehow showed that
Page 71
he failed to notify the Department of
Labor and Employment for his sons' (sic)/complainants' (sic)
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LEGAL ETHICS
aba(n)donment as required by BP 130. And for this failure, the other
requisite for a valid termination by an employer was not complied with.
This however, would not work to invalidate the otherwise (sic) existence
of a valid cause for dismissal. The validity of the cause of dismissal must
be upheld at all times provided however that sanctions must be imposed
on the respondent for his failure to observe the notice on due process
requirement. (Wenphil Corp. v. NLRC, G.R. No. 80587). (Decision Labor
Arbiter, at 11-12, Annex "C" Petition), . . .
This is thus a very different case from Wenphil Corporation v. NLRC, 170
SCRA 69. In Wenphil, the rule applied to the facts is: once an employee
is dismissed for just cause, he must not be rewarded
re-employment and backwages for failure of his employer to observe
procedural due process. The public policy behind this is that, it may
encourage the employee to do even worse and render a mockery of the
rules of discipline required to be observed. However, the employer must
be penalized for his infraction of due process. In the present case,
however, not only was petitioner dismissed without due process, but his
dismissal is without just cause. Petitioner did not abandon his
employment because he has a justifiable excuse. 43
II. Petitioner avers that the executive labor arbiter erred in disregarding
the mandatory provisions of Article 279 of the Labor Code which entitles
an illegally dismissed employee to reinstatement and back wages and,
instead, affirmed the imposition of the penalty of P5,000.00 on private
respondent for violation of the due process requirements. Private
respondent, for his part, maintains that there was error in imposing the
fine because that penalty contemplates the failure to submit the
employer's report on dismissed employees to the DOLE regional office,
as required under Section 5 (now, Section 11), Rule XIV of the
implementing rules, and not the failure to serve notice upon the
employee sought to be dismissed by the employer.
Both the Constitution and the Labor Code enunciate in no uncertain
terms the right of every worker to security of tenure. 44 To give teeth to
this constitutional and statutory mandates, the Labor Code spells out the
relief available to an employee in case of its denial:
Art. 279. Security of Tenure. In cases of regular employment, the
employer shall not terminate the services of an employee except for a
just cause or when authorized by this Title. An employee who is unjustly
dismissed from work shall be entitled to reinstatement without loss of
seniority rights and other privileges and to his full backwages, inclusive
of allowances, and to his other benefits of their monetary equivalent
computed from the time his compensation was withheld from him up to
the time of actual reinstatement.
Clearly, therefore, an employee is entitled to reinstatement with full back
wages in the absence of just cause for dismissal. 45 The Court, however,
on numerous occasions has tempered the rigid application of said
provision of the Labor Code, recognizing that in some cases certain
events may have transpired as would militate against the practicability of
granting the relief thereunder provided, and declares that where there
are strained relations between the employer and the employee, payment
of back wages and severance pay may be awarded instead of
reinstatement, 46 and more particularly when managerial employees are
concerned. 47 Thus, where reinstatement is no longer possible, it is
therefore appropriate that the dismissed employee be given his fair and
just share of what the law accords him. 48
We note with favor and give our imprimatur to the Solicitor General's
ratiocination, to wit:
As a general rule, an employee who is unjustly dismissed from work shall
be entitled to reinstatement without loss of seniority rights and to his
backwages computed from the time his compensation was withheld up
to the time of his reinstatement. (Morales vs. NLRC, 188 SCRA 295). But
in Pacific Cement Company, Inc. vs. NLRC, 173 SCRA 192, this
PINEDAPCGRNMAN
Honorable Court held that when it comes to reinstatement, differences
should be made between managers and the ordinary workingmen. The
Court concluded that a company which no longer trusts its managers
cannot operate freely in a competitive and profitable manner. The NLRC
should know the difference between managers and ordinary
workingmen. It cannot imprudently order the reinstatement of managers
with the same ease and liberality as that of rank and file workers who
had been terminated. Similarly, a reinstatement may not be appropriate
or feasible in case of antipathy or antagonism between the parties
(Morales, vs. NLRC, 188 SCRA 295).
In the present case, it is submitted that petitioner should not be reinstated
as farm administrator of Hacienda Manucao. The present relationship of
petitioner and private respondent (is) so strained that a harmonious and
peaceful employee-employer relationship is hardly possible. 49
III. Finally, petitioner insists on an award of moral damages, arguing that
his dismissal from employment was attended by bad faith or fraud, or
constituted oppression, or was contrary to morals, good customs or
public policy. He further prays for exemplary damages to serve as a
deterrent against similar acts of unjust dismissal by other employers.
Moral damages, under Article 2217 of the Civil Code, may be awarded
to compensate one for diverse injuries such as mental anguish,
besmirched reputation, wounded feelings, and social humiliation,
provided that such injuries spring from a wrongful act or omission of the
defendant which was the proximate cause thereof. 50Exemplary
damages, under Article 2229, are imposed by way of example or
correction for the public good, in addition to moral, temperate, liquidated
or compensatory damages. They are not recoverable as a matter of right,
it being left to the court to decide whether or not they should be
adjudicated. 51
We are well aware of the Court's rulings in a number of cases in the past
allowing recovery of moral damages where the dismissal of the
employee was attended by bad faith or fraud, or constituted an act
oppressive to labor, or was done in a manner contrary to morals, good
customs or public policy, 52 and of exemplary damages if the dismissal
was effected in a wanton, oppressive or malevolent manner. 53 We do
not feel, however, that an award of the damages prayed for in this petition
would be proper even if, seemingly, the facts of the case justify their
allowance. In the aforestated cases of illegal dismissal where moral and
exemplary damages were awarded, the dismissed employees were
genuinely without fault and were undoubtedly victims of the erring
employers' capricious exercise of power.
In the present case, we find that both petitioner and private respondent
can equally be faulted for fanning the flames which gave rise to and
ultimately aggravated this controversy, instead of sincerely negotiating a
peaceful settlement of their disparate claims. The records reveal how
their actuations seethed with mutual antagonism and the undeniable
enmity between them negates the likelihood that either of them acted in
good faith. It is apparent that each one has a cause for damages against
the other. For this reason, we hold that no moral or exemplary damages
can rightfully be awarded to petitioner.
On this score, we are once again persuaded by the validity of the
following recommendation of the Solicitor General:
The Labor Arbiter's decision in RAB Case No. 0452-84 should be
modified. There was no voluntary abandonment in this case because
petitioner has a justifiable excuse for his absence, or such absence does
not warrant outright dismissal without notice and hearing. Private
respondent, therefore, is guilty of illegal dismissal. He should be ordered
to pay backwages for a period not exceeding three years from date of
dismissal. And in lieu of reinstatement, petitioner may be paid separation
Page 72
pay equivalent to one (1) month('s) salary for every year of service, a
fraction of six months being considered as one (1) year in accordance
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LEGAL ETHICS
with recent jurisprudence (Tan, Jr. vs. NLRC, 183 SCRA 651). But all
claims for damages should be dismissed, for both parties are equally at
fault. 54
The conduct of the respective counsel of the parties, as revealed by the
records, sorely disappoints the Court and invites reproof. Both counsel
may well be reminded that their ethical duty as lawyers to represent their
clients with
zeal 55 goes beyond merely presenting their clients' respective causes in
court. It is just as much their responsibility, if not more importantly, to
exert all reasonable efforts to smooth over legal conflicts, preferably out
of court and especially in consideration of the direct and immediate
consanguineous ties between their clients. Once again, we reiterate that
the useful function of a lawyer is not only to conduct litigation but to avoid
it whenever possible by advising settlement or withholding suit. He is
often called upon less for dramatic forensic exploits than for wise counsel
in every phase of life. He should be a mediator for concord and a
conciliator for compromise, rather than a virtuoso of technicality in the
conduct of litigation. 56
Rule 1.04 of the Code of Professional Responsibility explicitly provides
that "(a) lawyer shall encourage his client to avoid, end or settle the
controversy if it will admit of a fair settlement." On this point, we find that
both counsel herein fell short of what was expected of them, despite their
avowed duties as officers of the court. The records do not show that they
took pains to initiate steps geared toward effecting a rapprochement
between their clients. On the contrary, their acerbic and protracted
exchanges could not but have exacerbated the situation even as they
may have found favor in the equally hostile eyes of their respective
clients.
In the same manner, we find that the labor arbiter who handled this
regrettable case has been less than faithful to the letter and spirit of the
Labor Code mandating that a labor arbiter "shall exert all efforts towards
the amicable settlement of a labor dispute within his jurisdiction." 57 If he
ever did so, or at least entertained the thought, the copious records of
the proceedings in this controversy are barren of any reflection of the
same.
One final word. This is one decision we do not particularly relish having
been obliged to make. The task of resolving cases involving disputes
among members of a family leaves a bad taste in the mouth and an
aversion in the mind, for no truly meaningful and enduring resolution is
really achieved in such situations. While we are convinced that we have
adjudicated the legal issues herein squarely on the bases of law and
jurisprudence, sanssentimentality, we are saddened by the thought that
we may have failed to bring about the reconciliation of the father and son
who figured as parties to this dispute, and that our adherence here to law
and duty may unwittingly contribute to the breaking, instead of the
strengthening, of familial bonds. In fine, neither of the parties herein
actually emerges victorious. It is the Court's earnest hope, therefore, that
with the impartial exposition and extended explanation of their respective
rights in this decision, the parties may eventually see their way clear to
an ultimate resolution of their differences on more convivial terms.
WHEREFORE, the decision of respondent National Labor Relations
Commission is hereby SET ASIDE. Private respondent is ORDERED to
pay petitioner back wages for a period not exceeding three (3) years,
without qualification or deduction, 58 and, in lieu of reinstatement,
separation pay equivalent to one (1) month for every year of service, a
fraction of six (6) months being considered as one (1) whole year.
SO ORDERED.
G.R. No. L-28546 July 30, 1975
VENANCIO CASTANEDA and NICETAS HENSON, petitioners,
vs.
PINEDAPCGRNMAN
PASTOR D. AGO, LOURDES YU AGO and THE COURT OF
APPEALS, respondents.
Quijano and Arroyo for petitioners.
Jose M. Luison for respondents.
CASTRO, J.:
The parties in this case, except Lourdes Yu Ago, have been commuting
to this Court for more than a decade.
In 1955 the petitioners Venancio Castaeda and Nicetas Henson filed a
replevin suit against Pastor Ago in the Court of First Instance of Manila
to recover certain machineries (civil case 27251). In 1957 judgment was
rendered in favor of the plaintiffs, ordering Ago to return the machineries
or pay definite sums of money. Ago appealed, and on June 30, 1961 this
Court, in Ago vs. Castaeda, L-14066, affirmed the judgment. After
remand, the trial court issued on August 25, 1961 a writ of execution for
the sum of P172,923.87. Ago moved for a stay of execution but his
motion was denied, and levy was made on Ago's house and lots located
in Quezon City. The sheriff then advertised them for auction sale on
October 25, 1961. Ago moved to stop the auction sale, failing in which
he filed a petition for certiorari with the Court of Appeals. The appellate
court dismissed the petition and Ago appealed. On January 31,1966 this
Court, in Ago vs. Court of Appeals, et al., L-19718, affirmed the
dismissal. Ago thrice attempted to obtain a writ of preliminary injunction
to restrain the sheriff from enforcing the writ of execution "to save his
family house and lot;" his motions were denied, and the sheriff sold the
house and lots on March 9, 1963 to the highest bidders, the petitioners
Castaeda and Henson. Ago failed to redeem, and on April 17, 1964 the
sheriff executed the final deed of sale in favor of the vendees Castaeda
and Henson. Upon their petition, the Court of First Instance
of Manila issued a writ of possession to the properties.
However, on May 2, 1964 Pastor Ago, now joined by his wife, Lourdes
Yu Ago, as his co-plaintiff, filed a complaint in the Court of First Instance
of Quezon City (civil case Q-7986) to annul the sheriff's sale on the
ground that the obligation of Pastor Ago upon which judgment was
rendered against him in the replevin suit was his personal obligation, and
that Lourdes Yu Ago's one-half share in their conjugal residential house
and lots which were levied upon and sold by the sheriff could not legally
be reached for the satisfaction of the judgment. They alleged in their
complaint that wife Lourdes was not a party in the replevin suit, that the
judgment was rendered and the writ of execution was issued only against
husband Pastor, and that wife Lourdes was not a party to her husband's
venture in the logging business which failed and resulted in the replevin
suit and which did not benefit the conjugal partnership.
The Court of First Instance of Quezon City issued an ex parte writ of
preliminary injunction restraining the petitioners, the Register of Deeds
and the sheriff of Quezon City, from registering the latter's final deed of
sale, from cancelling the respondents' certificates of title and issuing new
ones to the petitioners and from carrying out any writ of possession. A
situation thus arose where what the Manila court had ordered to be
done, the Quezon City court countermanded. On November 1, 1965,
however, the latter court lifted the preliminary injunction it had previously
issued, and the Register of deeds of Quezon City cancelled the
respondents' certificates of title and issued new ones in favor of the
petitioners. But enforcement of the writ of possession was again
thwarted as the Quezon City court again issued a temporary restraining
order which it later lifted but then re-restored. On May 3, 1967 the court
finally, and for the third time, lifted the restraining order.
While the battle on the matter of the lifting and restoring of the restraining
order was being fought in the Quezon City court, the Agos filed a petition
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for certiorari and prohibition with this Court under date of May 26, 1966,
docketed as L-26116, praying for a writ of preliminary injunction to enjoin
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LEGAL ETHICS
the sheriff from enforcing the writ of possession. This Court found no
merit in the petition and dismissed it in a minute resolution on June 3,
1966; reconsideration was denied on July 18, 1966. The respondents
then filed on August 2, 1966 a similar petition for certiorari and prohibition
with the Court of Appeals (CA-G.R. 37830-R), praying for the same
preliminary injunction. The Court of Appeals also dismissed the petition.
The respondents then appealed to this Court (L-27140).1wph1.t We enforcing the writ of execution; (7) the sheriff executed the deed of final
dismissed the petition in a minute resolution on February 8, 1967.
The Ago spouses repaired once more to the Court of Appeals where they
filed another petition for certiorari and prohibition with preliminary
injunction (CA-G.R. 39438-R). The said court gave due course to the
petition and granted preliminary injunction. After hearing, it rendered
decision, the dispositive portion of which reads:
WHEREFORE, writ of preliminary injunction from enforcement of the writ
of possession on and ejectment from the one-half share in the properties
involved belonging to Lourdes Yu Ago dated June 15, 1967 is made
permanent pending decision on the merits in Civil Case No. Q-7986 and
ordering respondent Court to proceed with the trial of Civil Case No. Q-
7986 on the merits without unnecessary delay. No pronouncement as to
costs.
Failing to obtain reconsideration, the petitioners Castaeda and Henson
filed the present petition for review of the aforesaid decision.
1. We do not see how the doctrine that a court may not interfere with the
orders of a co-equal court can apply in the case at bar. The Court of First
Instance of Manila, which issued the writ of possession, ultimately was
not interfered with by its co-equal court, the Court of First Instance of
Quezon City as the latter lifted the restraining order it had previously
issued against the enforcement of the Manila court's writ of possession;
it is the Court of Appeals that enjoined, in part, the enforcement of the
writ.
2. Invoking Comilang vs. Buendia, et al., 1 where the wife was a party in
one case and the husband was a party in another case and a levy on
their conjugal properties was upheld, the petitioners would have Lourdes
Yu Ago similarly bound by the replevin judgment against her husband for
which their conjugal properties would be answerable. The case invoked
is not at par with the present case. In Comilang the actions were
admittedly instituted for the protection of the common interest of the
spouses; in the present case, the Agos deny that their conjugal
partnership benefited from the husband's business venture.
3. Relying upon Omnas vs. Rivera, 67 Phil. 419, the Court of Appeals
held that a writ of possession may not issue until the claim of a third
person to half-interest in the property is adversely determined, the said
appellate court assuming that Lourdes Yu Ago was a "stranger" or a
"third-party" to her husband. The assumption is of course obviously
wrong, for, besides living with her husband Pastor, she does not claim
ignorance of his business that failed, of the relevant cases in which he
got embroiled, and of the auction sale made by the sheriff of their
conjugal properties. Even then, the ruling in Omnas is not that a writ of
possession may not issue until the claim of a third person is adversely
determined, but that the writ of possession being a complement of the
writ of execution, a judge with jurisdiction to issue the latter also has
jurisdiction to issue the former, unless in the interval between the judicial
sale and the issuance of the writ of possession, the rights of third parties
to the property sold have supervened. The ruling in Omnas is clearly
inapplicable in the present case, for, here, there has been no change in
the ownership of the properties or of any interest therein from the time
the writ of execution was issued up to the time writ of possession was
issued, and even up to the present.
4. We agree with the trial court (then presided by Judge Lourdes P. San
Diego) that it is much too late in the day for the respondents Agos to
raise the question that part of the property is unleviable because it
PINEDAPCGRNMAN
belongs to Lourdes Yu Ago, considering that (1) a wife is normally privy
to her husband's activities; (2) the levy was made and the properties
advertised for auction sale in 1961; (3) she lives in the very properties in
question; (4) her husband had moved to stop the auction sale; (5) the
properties were sold at auction in 1963; (6) her husband had thrice
attempted to obtain a preliminary injunction to restrain the sheriff from
sale on April 17, 1964 when Pastor failed to redeem; (8) Pastor had
impliedly admitted that the conjugal properties could be levied upon by
his pleas "to save his family house and lot" in his efforts to prevent
execution; and (9) it was only on May 2, 1964 when he and his wife filed
the complaint for annulment of the sheriff's sale upon the issue that the
wife's share in the properties cannot be levied upon on the ground that
she was not a party to the logging business and not a party to the replevin
suit. The spouses Ago had every opportunity to raise the issue in the
various proceedings hereinbefore discussed but did not; laches now
effectively bars them from raising it.
Laches, in a general sense, is failure or neglect, for an unreasonable and
unexplained length of time, to do that which, by exercising due diligence,
could or should have been done earlier; it is negligence or omission to
assert a right within a reasonable time, warranting a presumption that the
party entitled to assert it either has abandoned it or declined to assert it. 2
5. The decision of the appellate court under review suffers from two fatal
infirmities.
(a) It enjoined the enforcement of the writ of possession to and ejectment
from the one-half share in the properties involved belonging to Lourdes
Yu Ago. This half-share is not in esse, but is merely an inchoate interest,
a mere expectancy, constituting neither legal nor equitable estate, and
will ripen into title when only upon liquidation and settlement there
appears to be assets of the community. 3 The decision sets at naught the
well-settled rule that injunction does not issue to protect a right not in
esse and which may never arise. 4
(b) The decision did not foresee the absurdity, or even the impossibility,
of its enforcement. The Ago spouses admittedly live together in the same
house 5 which is conjugal property. By the Manila court's writ of
possession Pastor could be ousted from the house, but the decision
under review would prevent the ejectment of Lourdes. Now, which part
of the house would be vacated by Pastor and which part would Lourdes
continue to stay in? The absurdity does not stop here; the decision would
actually separate husband and wife, prevent them from living together,
and in effect divide their conjugal properties during coverture and before
the dissolution of the conjugal union.
6. Despite the pendency in the trial court of the complaint for the
annulment of the sheriff's sale (civil case Q-7986), elementary justice
demands that the petitioners, long denied the fruits of their victory in the
replevin suit, must now enjoy them, for, the respondents Agos, abetted
by their lawyer Jose M. Luison, have misused legal remedies and
prostituted the judicial process to thwart the satisfaction of the judgment,
to the extended prejudice of the petitioners. The respondents, with the
assistance of counsel, maneuvered for fourteen (14) years to doggedly
resist execution of the judgment thru manifold tactics in and from one
court to another (5 times in the Supreme Court).
We condemn the attitude of the respondents and their counsel who,
far from viewing courts as sanctuaries for those who seek justice, have
tried to use them to subvert the very ends of justice. 6
Forgetting his sacred mission as a sworn public servant and his exalted
position as an officer of the court, Atty. Luison has allowed himself to
become an instigator of controversy and a predator of conflict instead of
a mediator for concord and a conciliator for compromise, a virtuoso of
Page 74
technicality in the conduct of litigation instead of a true exponent of the
primacy of truth and moral justice.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
A counsel's assertiveness in espousing with candour and honesty his
client's cause must be encouraged and is to be commended; what we
do not and cannot countenance is a lawyer's insistence despite the
patent futility of his client's position, as in the case at bar.
It is the duty of a counsel to advise his client, ordinarily a layman to the
intricacies and vagaries of the law, on the merit or lack of merit of his
case. If he finds that his client's cause is defenseless, then it is his
bounden duty to advise the latter to acquiesce and submit, rather than
traverse the incontrovertible. A lawyer must resist the whims and
caprices of his client, and temper his clients propensity to litigate. A
lawyer's oath to uphold the cause of justice is superior to his duty to his
client; its primacy is indisputable. 7
7. In view of the private respondents' propensity to use the courts for
purposes other than to seek justice, and in order to obviate further delay
in the disposition of the case below which might again come up to the
appellate courts but only to fail in the end, we have motu
proprio examined the record of civil case Q-7986 (the mother case of the
present case). We find that
(a) the complaint was filed on May 2, 1964 (more than 11 years ago) but
trial on the merits has not even started;
(b) after the defendants Castaedas had filed their answer with a
counterclaim, the plaintiffs Agos filed a supplemental complaint where
they impleaded new parties-defendants;
(c) after the admission of the supplemental complaint, the Agos filed a
motion to admit an amended supplemental complaint, which impleads
an additional new party-defendant (no action has yet been taken on this
motion);
(d) the defendants have not filed an answer to the admitted supplemental
complaint; and
(e) the last order of the Court of First Instance, dated April 20, 1974,
grants an extension to the suspension of time to file answer. (Expediente,
p. 815)
We also find that the alleged causes of action in the complaint,
supplemental complaint and amended supplemental complaint are all
untenable, for the reasons hereunder stated. The Complaint
Upon the first cause of action, it is alleged that the sheriff levied upon
conjugal properties of the spouses Ago despite the fact that the judgment
to be satisfied was personal only to Pastor Ago, and the business venture
that he entered into, which resulted in the replevin suit, did not redound
to the benefit of the conjugal partnership. The issue here, which is
whether or not the wife's inchoate share in the conjugal property is
leviable, is the same issue that we have already resolved, as barred by
laches, in striking down the decision of the Court of Appeals granting
preliminary injunction, the dispositive portion of which was herein-before
quoted. This ruling applies as well to the first cause of action of the
complaint.
Upon the second cause of action, the Agos allege that on January 5,
1959 the Castaedas and the sheriff, pursuant to an alias writ of seizure,
seized and took possession of certain machineries, depriving the Agos
of the use thereof, to their damage in the sum of P256,000 up to May 5,
1964. This second cause of action fails to state a valid cause of action
for it fails to allege that the order of seizure is invalid or illegal.
It is averred as a third cause of action that the sheriff's sale of the
conjugal properties was irregular, illegal and unlawful because the sheriff
did not require the Castaeda spouses to pay or liquidate the sum of
P141,750 (the amount for which they bought the properties at the auction
sale) despite the fact that there was annotated at the back of the
certificates of title a mortgage of P75,000 in favor of the Philippine
National Bank; moreover, the sheriff sold the properties for P141,750
despite the pendency of L-19718 where Pastor Ago contested the
amount of P99,877.08 out of the judgment value of P172,923.37 in civil
PINEDAPCGRNMAN
case 27251; and because of said acts, the Agos suffered P174,877.08
in damages.
Anent this third cause of action, the sheriff was under no obligation to
require payment of the purchase price in the auction sale because "when
the purchaser is the judgment creditor, and no third-party claim has been
filed, he need not pay the amount of the bid if it does not exceed the
amount of his judgment." (Sec. 23, Rule 39, Rules of Court)
The annotated mortgage in favor of the PNB is the concern of the
vendees Castaedas but did not affect the sheriff's sale; the cancellation
of the annotation is of no moment to the Agoo.
Case L-19718 where Pastor Ago contested the sum of P99,877.08 out
of the amount of the judgment was dismissed by this Court on January
31, 1966.
This third cause of action, therefore, actually states no valid cause of
action and is moreover barred by prior judgment.
The fourth cause of action pertains to moral damages allegedly suffered
by the Agos on account of the acts complained of in the preceding
causes of action. As the fourth cause of action derives its life from the
preceding causes of action, which, as shown, are baseless, the said
fourth cause of action must necessarily fail.
The Counterclaim
As a counterclaim against the Agos, the Castaedas aver that the action
was unfounded and as a consequence of its filing they were compelled
to retain the services of counsel for not less than P7,500; that because
the Agos obtained a preliminary injunction enjoining the transfer of titles
and possession of the properties to the Castaedas, they were
unlawfully deprived of the use of the properties from April 17, 1964, the
value of such deprived use being 20% annually of their actual value; and
that the filing of the unfounded action besmirched their feelings, the
pecuniary worth of which is for the court to assess.
The Supplemental Complaint
Upon the first cause of action, it is alleged that after the filing of the
complaint, the defendants, taking advantage of the dissolution of the
preliminary injunction, in conspiracy and with gross bad faith and evident
intent to cause damage to the plaintiffs, caused the registration of the
sheriff's final deed of sale; that, to cause more damage, the defendants
sold to their lawyer and his wife two of the parcels of land in question;
that the purchasers acquired the properties in bad faith; that the
defendants mortgaged the two other parcels to the Rizal Commercial
Banking Corporation while the defendants' lawyer and his wife also
mortgaged the parcels bought by them to the Rizal Commercial Bank;
and that the bank also acted in bad faith.
The second cause of action consists of an allegation of additional
damages caused by the defendants' bad faith in entering into the
aforesaid agreements and transactions.
The Amended Supplemental Complaint
The amendment made pertains to the first cause of action of the
supplemental complaint, which is, the inclusion of a paragraph averring
that, still to cause damage and prejudice to the plaintiffs, Atty. & Mrs.
Juan Quijano, in bad faith sold the two parcels of land they had
previously bought to Eloy Ocampo who acquired them also in bad faith,
while Venancio Castaeda and Nicetas Henson in bad faith sold the two
other parcels to Juan Quijano (60%) and Eloy Ocampo (40%) who
acquired them in bad faith and with knowledge that the properties are
the subject of a pending litigation.
Discussion on The Causes of Action
of The Supplemental Complaint And
The Amended Supplemental Complaint
Assuming hypothetically as true the allegations in the first cause of action
Page 75
of the supplemental complaint and the amended supplemental
complaint, the validity of the cause of action would depend upon the
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
validity of the first cause of action of the original complaint, for, the Agos
would suffer no transgression upon their rights of ownership and
possession of the properties by reason of the agreements subsequently
entered into by the Castaedas and their lawyer if the sheriff's levy and
sale are valid. The reverse is also true: if the sheriff's levy and sale are
invalid on the ground that the conjugal properties could not be levied
upon, then the transactions would perhaps prejudice the Agos, but, we
have already indicated that the issue in the first cause of action of the
original complaint is barred by laches, and it must therefore follow that
the first cause of action of the supplemental complaint and the amended
supplemental complaint is also barred.
For the same reason, the same holding applies to the remaining cause
of action in the supplemental complaint and the amended supplemental
complaint.
ACCORDINGLY, the decision of the Court of Appeals under review is
set aside. Civil case Q-7986 of the Court of First Instance of Rizal is
ordered dismissed, without prejudice to the re-filing of the petitioners'
counterclaim in a new and independent action. Treble costs are
assessed against the spouses Pastor Ago and Lourdes Yu Ago, which
shall be paid by their lawyer, Atty. Jose M. Luison. Let a copy of this
decision be made a part of the personal file of Atty. Luison in the custody
of the Clerk of Court.
CANON 2: PROVIDE EFFICIENT AND CONVINIENT LEGAL
SERVICES
A LAWYER SHALL MAKE HIS LEGAL SERVICES AVAILABLE IN AN
EFFICIENT AND CONVENIENT MANNER COMPATIBLE WITH THE
INDEPENDENCE, INTEGRITY AND EFFECTIVENESS OF THE
PROFESSION.
RULE 2.01: A lawyer shall not reject, except for valid reasons, the
cause of the defenseless or the oppressed.
IBP Guidelines, Art.1, Sec. 1. Public Service:
1. Legal aid is not a matter of charity but a public responsibility.
2. It is a means for correction of social imbalance.
3. Legal aid offices must be so organized as to give maximum
possible assistance to indigent and deserving members of the
community and to forestall injustice.
Rule 2.02 - In such cases, even if the lawyer does not accept a case,
he shall not refuse to render legal advice to the person concerned
if only to the extent necessary to safeguard the latter's rights
JONAR SANTIAGO, A.C. No. 6252
Complainant,
- versus -
Atty. EDISON V. RAFANAN,
Respondent.
October 5, 2004
x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x
DECISION
PANGANIBAN, J.:
Notaries public are expected to exert utmost care in the performance of
their duties, which are impressed with public interest. They are enjoined
to comply faithfully with the solemnities and requirements of the Notarial
Law. This Court will not hesitate to mete out appropriate sanctions to
those who violate it or neglect observance thereof.
__________________
The Case and the Facts
PINEDAPCGRNMAN
Before us is a verified Complaint[1] filed by Jonar Santiago, an employee
of the Bureau of Jail Management and Penology (BJMP), for the
disbarment of Atty. Edison V. Rafanan. The Complaint was filed with the
Commission on Bar Discipline (CBD) of the Integrated Bar of the
Philippines (IBP) on January 16, 2001. It charged Atty. Rafanan with
deceit; malpractice or other gross misconduct in office under Section 27
of Rule 138[2] of the Rules of Court; and violation of Canons 1.01, 1.02
and 1.03[3], Canon 5[4], and Canons 12.07[5] and 12.08 of the Code of
Professional Responsibility (CPR).
In his Report, IBP Investigating Commissioner Leland R. Villadolid Jr.
summarized the allegations of the complainant in this wise:
x x x. In his Letter-Complaint, Complainant alleged, among others, that
Respondent in notarizing several documents on different dates failed
and/or refused to: a)make the proper notation regarding the cedula or
community tax certificate of the affiants; b) enter the details of the
notarized documents in the notarial register; and c) make and execute
the certification and enter his PTR and IBP numbers in the documents
he had notarized, all in violation of the notarial provisions of the Revised
Administrative Code.
Complainant likewise alleged that Respondent executed an Affidavit in
favor of his client and offered the same as evidence in the case wherein
he was actively representing his client. Finally, Complainant alleges that
on a certain date, Respondent accompanied by several persons waited
for Complainant after the hearing and after confronting the latter
disarmed him of his sidearm and thereafter uttered insulting words and
veiled threats.[6]
On March 23, 2001, pursuant to the January 19, 2001 Order of the
CBD,[7] Atty. Rafanan filed his verified Answer.[8] He admitted having
administered the oath to the affiants whose Affidavits were attached to
the verified Complaint. He believed, however, that the non-notation of
their Residence Certificates in the Affidavits and the Counter-affidavits
was allowed.
He opined that the notation of residence certificates applied only to
documents acknowledged by a notary public and was not mandatory for
affidavits related to cases pending before courts and other government
offices. He pointed out that in the latter, the affidavits, which were sworn
to before government prosecutors, did not have to indicate the residence
certificates of the affiants. Neither did other notaries public in Nueva Ecija
-- some of whom were older practitioners -- indicate the affiants
residence certificates on the documents they notarized, or have entries
in their notarial register for these documents.
As to his alleged failure to comply with the certification required by
Section 3 of Rule 112[9] of the Rules of Criminal Procedure, respondent
explained that as counsel of the affiants, he had the option to comply or
not with the certification. To nullify the Affidavits, it was complainant who
was duty-bound to bring the said noncompliance to the attention of the
prosecutor conducting the preliminary investigation.
As to his alleged violation of Rule 12.08 of the CPR, respondent argued
that lawyers could testify on behalf of their clients on substantial matters,
in cases where [their] testimony is essential to the ends of justice.
Complainant charged respondents clients with attempted murder.
Respondent averred that since they were in his house when the alleged
crime occurred, his testimony is very essential to the ends of justice.
Page 76
Respondent alleged that it was complainant who had threatened and
harassed his clients after the hearing of their case by the provincial
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LEGAL ETHICS
prosecutor on January 4, 2001. Respondent requested the assistance of
the Cabanatuan City Police the following day, January 5, 2001, which
was the next scheduled hearing, to avoid a repetition of the incident and
to allay the fears of his clients. In support of his allegations, he submitted
Certifications[10] from the Cabanatuan City Police and the Joint
Affidavit[11] of the two police officers who had assisted them.
Lastly, he contended that the case had been initiated for no other
purpose than to harass him, because he was the counsel of Barangay
Captain Ernesto Ramos in the cases filed by the latter before the
ombudsman and the BJMP against complainant.
After receipt of respondents Answer, the CBD, through Commissioner
Tyrone R. Cimafranca, set the case for hearing on June 5, 2001, at two
oclock in the afternoon. Notices[12] of the hearing were sent to the
parties by registered mail. On the scheduled date and time of the
hearing, only complainant appeared.Respondent was unable to do so,
apparently because he had received the Notice only on June 8, 2001.[13]
The hearing was reset to July 3, 2001 at two oclock in the afternoon.
On the same day, June 5, 2001, complainant filed his Reply[14] to the
verified Answer of respondent. The latters Rejoinder was received by the
CBD on July 13, 2001.[15] It also received complainants Letter-
Request[16] to dispense with the hearings. Accordingly, it granted that
request in its Order[17] dated July 24, 2001, issued through
Commissioner Cimafranca. It thereby directed the parties to submit their
respective memoranda within fifteen days from receipt of the Order, after
which the case was to be deemed submitted for resolution.
The CBD received complainants Memorandum[18] on September 26,
2001. Respondent did not file any.
The IBPs Recommendation
On September 27, 2003, the IBP Board of Governors issued Resolution
No. XVI-2003-172[19] approving and adopting the Investigating
Commissioners Report that respondent had violated specific
requirements of the Notarial Law on the execution of a certification, the
entry of such certification in the notarial register, and the indication of the
affiants residence certificate. The IBP Board of Governors found his
excuse for the violations unacceptable. It modified, however, the
recommendation[20] of the investigating commissioner by increasing the
fine to P3,000 with a warning that any repetition of the violation will be
dealt with a heavier penalty.
The other charges -- violation of Section 27 of Rule 138 of the Rules of
Court; and Canons 1.01 to 1.03, 12.07 and 12.08 of the CPR -- were
dismissed for insufficiency of evidence.
The Courts Ruling
We agree with the Resolution of the IBP Board of Governors.
Respondents Administrative Liability
Violation of the Notarial Law
The Notarial Law is explicit on the obligations and duties of notaries
public. They are required to certify that the party to every document
acknowledged before them has presented the proper residence
certificate (or exemption from the residence tax); and to enter its number,
PINEDAPCGRNMAN
place of issue and date as part of such certification.[21] They are also
required to maintain and keep a notarial register; to enter therein all
instruments notarized by them; and to give to each instrument executed,
sworn to, or acknowledged before [them] a number corresponding to the
one in [their] register [and to state therein] the page or pages of [their]
register, on which the same is recorded.[22] Failure to perform these
duties would result in the revocation of their commission as notaries
public.[23]
These formalities are mandatory and cannot be simply neglected,
considering the degree of importance and evidentiary weight attached to
notarized documents. Notaries public entering into their commissions are
presumed to be aware of these elementary requirements.
In Vda. de Rosales v. Ramos,[24] the Court explained the value and
meaning of notarization as follows:
The importance attached to the act of notarization cannot be
overemphasized. Notarization is not an empty, meaningless, routinary
act. It is invested with substantive public interest, such that only those
who are qualified or authorized may act as notaries public. Notarization
converts a private document into a public document thus making that
document admissible in evidence without further proof of its authenticity.
A notarial document is by law entitled to full faith and credit upon its face.
Courts, administrative agencies and the public at large must be able to
rely upon the acknowledgment executed by a notary public and
appended to a private instrument.
For this reason, notaries public should not take for granted the solemn
duties pertaining to their office. Slipshod methods in their performance
of the notarial act are never to be countenanced. They are expected to
exert utmost care in the performance of their duties,[25] which are
dictated by public policy and are impressed with public interest.
It is clear from the pleadings before us -- and respondent has readily
admitted -- that he violated the Notarial Law by failing to enter in the
documents notations of the residence certificate, as well as the entry
number and the pages of the notarial registry.
Respondent believes, however, that noncompliance with those
requirements is not mandatory for affidavits relative to cases pending
before the courts and government agencies. He points to similar
practices of older notaries in Nueva Ecija.
We cannot give credence to, much less honor, his claim. His belief that
the requirements do not apply to affidavits is patently irrelevant. No law
dispenses with these formalities. Au contraire, the Notarial Law makes
no qualification or exception. It is appalling and inexcusable that he did
away with the basics of notarial procedure allegedly because others
were doing so. Being swayed by the bad example of others is not an
acceptable justification for breaking the law.
We note further that the documents attached to the verified Complaint
are the Joint Counter-Affidavit of respondents clients Ernesto Ramos
and Rey Geronimo, as well as their witnesses Affidavits relative to
Criminal Case No. 69-2000 for attempted murder, filed by complainants
brother against the aforementioned clients. These documents became
the basis of the present Complaint.
As correctly pointed out by the investigating commissioner, Section 3 of
Rule 112 of the Rules of Criminal Procedure expressly requires
respondent as notary -- in the absence of any fiscal, state prosecutor or
government official authorized to administer the oath -- to certify that he
has personally examined the affiants and that he is satisfied that they
Page 77
voluntarily executed and understood their affidavits. Respondent failed
to do so with respect to the subject Affidavits and Counter-Affidavits in
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LEGAL ETHICS
the belief that -- as counsel for the affiants -- he was not required to
comply with the certification requirement.
It must be emphasized that the primary duty of lawyers is to obey the
laws of the land and promote respect for the law and legal processes.[26]
They are expected to be in the forefront in the observance and
maintenance of the rule of law. This duty carries with it the obligation to
be well-informed of the existing laws and to keep abreast with legal
developments, recent enactments and jurisprudence.[27] It is imperative
that they be conversant with basic legal principles.Unless they faithfully
comply with such duty, they may not be able to discharge competently
and diligently their obligations as members of the bar. Worse, they may
become susceptible to committing mistakes.
Where notaries public are lawyers, a graver responsibility is placed upon
them by reason of their solemn oath to obey the laws.[28] No custom or
age-old practice provides sufficient excuse or justification for their failure
to adhere to the provisions of the law. In this case, the excuse given by
respondent exhibited his clear ignorance of the Notarial Law, the Rules
of Criminal Procedure, and the importance of his office as a notary public.
Nonetheless, we do not agree with complainants plea to disbar
respondent from the practice of law. The power to disbar must be
exercised with great caution.[29] Disbarment will be imposed as a
penalty only in a clear case of misconduct that seriously affects the
standing and the character of the lawyer as an officer of the court and a
member of the bar. Where any lesser penalty can accomplish the end
desired, disbarment should not be decreed.[30] Considering the nature
of the infraction and the absence of deceit on the part of respondent, we
believe that the penalty recommended by the IBP Board of Governors is
a sufficient disciplinary measure in this case.
Lawyer as Witness for Client
Complainant further faults respondent for executing before Prosecutor
Leonardo Padolina an affidavit corroborating the defense of alibi
proffered by respondents clients, allegedly in violation of Rule 12.08 of
the CPR: A lawyer shall avoid testifying in behalf of his client.
Rule 12.08 of Canon 12 of the CPR states:
Rule 12.08 A lawyer shall avoid testifying in behalf of his client, except:
a) on formal matters, such as the mailing, authentication or
custody of an instrument and the like;
b) on substantial matters, in cases where his testimony is
essential to the ends of justice, in which event he must, during his
testimony, entrust the trial of the case to another counsel.
Parenthetically, under the law, a lawyer is not disqualified from being a
witness,[31] except only in certain cases pertaining to privileged
communication arising from an attorney-client relationship.[32]
The reason behind such rule is the difficulty posed upon lawyers by the
task of dissociating their relation to their clients as witnesses from that
as advocates. Witnesses are expected to tell the facts as they recall
them. In contradistinction, advocates are partisans -- those who actively
plead and defend the cause of others. It is difficult to distinguish the
fairness and impartiality of a disinterested witness from the zeal of an
advocate. The question is one of propriety rather than of competency of
the lawyers who testify for their clients.
Acting or appearing to act in the double capacity of lawyer and witness
for the client will provoke unkind criticism and leave many people to
suspect the truthfulness of the lawyer because they cannot believe the
lawyer as disinterested. The people will have a plausible reason for
PINEDAPCGRNMAN
thinking, and if their sympathies are against the lawyers client, they will
have an opportunity, not likely to be neglected, for charging, that as a
witness he fortified it with his own testimony. The testimony of the lawyer
becomes doubted and is looked upon as partial and untruthful.[33]
Thus, although the law does not forbid lawyers from being witnesses and
at the same time counsels for a cause, the preference is for them to
refrain from testifying as witnesses, unless they absolutely have to; and
should they do so, to withdraw from active management of the case.[34]
Notwithstanding this guideline and the existence of the Affidavit executed
by Atty. Rafanan in favor of his clients, we cannot hastily make him
administratively liable for the following reasons:
First, we consider it the duty of a lawyer to assert every remedy and
defense that is authorized by law for the benefit of the client, especially
in a criminal action in which the latters life and liberty are at stake.[35] It
is the fundamental right of the accused to be afforded full opportunity to
rebut the charges against them. They are entitled to suggest all those
reasonable doubts that may arise from the evidence as to their guilt; and
to ensure that if they are convicted, such conviction is according to law.
Having undertaken the defense of the accused, respondent, as defense
counsel, was thus expected to spare no effort to save his clients from a
wrong conviction. He had the duty to present -- by all fair and honorable
means -- every defense and mitigating circumstance that the law
permitted, to the end that his clients would not be deprived of life, liberty
or property, except by due process of law.[36]
The Affidavit executed by Atty. Rafanan was clearly necessary for the
defense of his clients, since it pointed out the fact that on the alleged
date and time of the incident, his clients were at his residence and could
not have possibly committed the crime charged against them. Notably,
in his Affidavit, complainant does not dispute the statements of
respondent or suggest the falsity of its contents.
Second, paragraph (b) of Rule 12.08 contemplates a situation in which
lawyers give their testimonies during the trial. In this instance, the
Affidavit was submitted during the preliminary investigation which, as
such, was merely inquisitorial.[37] Not being a trial of the case on the
merits, a preliminary investigation has the oft-repeated purposes of
securing innocent persons against hasty, malicious and oppressive
prosecutions; protecting them from open and public accusations of crime
and from the trouble as well as expense and anxiety of a public trial; and
protecting the State from useless and expensive prosecutions.[38]The
investigation is advisedly called preliminary, as it is yet to be followed by
the trial proper.
Nonetheless, we deem it important to stress and remind respondent to
refrain from accepting employment in any matter in which he knows or
has reason to believe that he may be an essential witness for the
prospective client. Furthermore, in future cases in which his testimony
may become essential to serve the ends of justice, the canons of the
profession require him to withdraw from the active prosecution of these
cases.
No Proof of Harassment
The charge that respondent harassed complainant and uttered insulting
words and veiled threats is not supported by evidence. Allegation is
never equivalent to proof, and a bare charge cannot be equated with
liability.[39] It is not the self-serving claim of complainant but the version
of respondent that is more credible, considering that the latters
allegations are corroborated by the Affidavits of the police officers and
the Certifications of the Cabanatuan City Police.
Page 78
Intelligentia et Scientia Semper Mea
LEGAL ETHICS PINEDAPCGRNMAN
WHEREFORE, Atty. Edison V. Rafanan is found guilty of violating the To support his allegations, complainant presented the sworn
Notarial Law and Canon 5 of the Code of Professional Responsibility and affidavit[5] of James Gregorio attesting that Labiano tried to prevail upon
is herebyFINED P3,000 with a warning that similar infractions in the him to sever his lawyer-client relations with complainant and utilize
future will be dealt with more severely. respondents services instead, in exchange for a loan of P50,000.
SO ORDERED. Complainant also attached respondents calling card:[6]
Exceptions: Canon 14, Rule 14.01 and 14.02
Front
Rule 14.01 - A lawyer shall not decline to represent a person solely
on account of the latter's race, sex. creed or status of life, or
NICOMEDES TOLENTINO
because of his own opinion regarding the guilt of said person.
LAW OFFFICE
Rule 14.02 - A lawyer shall not decline, except for serious and
CONSULTANCY & MARITIME SERVICES
sufficient cause, an appointment as counsel de officio or as amicus
W/ FINANCIAL ASSISTANCE
curiae, or a request from the Integrated Bar of the Philippines or
any of its chapters for rendition of free legal aid.
Fe Marie L. Labiano
Exception to the Exception: Canon 14, rule 14.03
Paralegal
Rule 14.03 - A lawyer may not refuse to accept representation of an
indigent client if:
1st MIJI Mansion, 2nd Flr. Rm. M-01 Tel: 362-7820
(a) he is not in a position to carry out the work effectively or
6th Ave., cor M.H. Del Pilar Fax: (632) 362-7821
competently;
Grace Park, Caloocan City Cel.: (0926) 2701719
(b) he labors under a conflict of interest between him and the
prospective client or between a present client and the prospective
client.
Back
Rule 2.03: A lawyer shall not do or permit to be done any act
SERVICES OFFERED:
designed primarily to solicit legal business.
CONSULTATION AND ASSISTANCE
Rule 138 sec 27 ROC: Attorneys removed or suspended by
TO OVERSEAS SEAMEN
Supreme Court on what grounds. A member of the bar may be
REPATRIATED DUE TO ACCIDENT,
removed or suspended from his office as attorney by the Supreme
INJURY, ILLNESS, SICKNESS, DEATH
Court for any deceit, malpractice, or other gross misconduct in
AND INSURANCE BENEFIT CLAIMS
such office, grossly immoral conduct, or by reason of his
ABROAD.
conviction of a crime involving moral turpitude, or for any violation
(emphasis supplied)
of the oath which he is required to take before the admission to
Hence, this complaint.
practice, or for a wilfull disobedience of any lawful order of a
Respondent, in his defense, denied knowing Labiano and authorizing the
superior court, or for corruptly or willful appearing as an attorney
printing and circulation of the said calling card.[7]
for a party to a case without authority so to do. The practice of
The complaint was referred to the Commission on Bar Discipline (CBD)
soliciting cases at law for the purpose of gain, either personally or
of the Integrated Bar of the Philippines (IBP) for investigation, report and
through paid agents or brokers, constitutes malpractice.
recommendation.[8]
Based on testimonial and documentary evidence, the CBD, in its report
PEDRO L. LINSANGAN, A.C. No. 6672
and recommendation,[9] found that respondent had encroached on the
Complainant,
professional practice of complainant, violating Rule 8.02[10] and other
-versus-
canons[11] of the Code of Professional Responsibility (CPR). Moreover,
ATTY. NICOMEDES TOLENTINO,
he contravened the rule against soliciting cases for gain, personally or
Respondent. Promulgated:
through paid agents or brokers as stated in Section 27, Rule 138 [12] of
September 4, 2009
the Rules of Court. Hence, the CBD recommended that respondent be
reprimanded with a stern warning that any repetition would merit a
x-----------------------------------------x
heavier penalty.
We adopt the findings of the IBP on the unethical conduct of respondent
RESOLUTION
but we modify the recommended penalty.
The complaint before us is rooted on the alleged intrusion by respondent
CORONA, J.:
into complainants professional practice in violation of Rule 8.02 of the
CPR. And the means employed by respondent in furtherance of the said
misconduct themselves constituted distinct violations of ethical rules.
This is a complaint for disbarment[1] filed by Pedro Linsangan of the
Canons of the CPR are rules of conduct all lawyers must adhere to,
Linsangan Linsangan & Linsangan Law Office against Atty. Nicomedes
including the manner by which a lawyers services are to be made known.
Tolentino for solicitation of clients and encroachment of professional
Thus, Canon 3 of the CPR provides:
services.
Complainant alleged that respondent, with the help of paralegal Fe Marie
CANON 3 - A LAWYER IN MAKING KNOWN HIS LEGAL SERVICES
Labiano, convinced his clients[2] to transfer legal representation.
SHALL USE ONLY TRUE, HONEST, FAIR, DIGNIFIED AND
Respondent promised them financial assistance[3] and expeditious
OBJECTIVE INFORMATION OR STATEMENT OF FACTS.
collection on their claims.[4] To induce them to hire his services, he
Page 79

Time and time again, lawyers are reminded that the practice of law is a
persistently called them and sent them text messages.
profession and not a business; lawyers should not advertise their talents

Intelligentia et Scientia Semper Mea

LEGAL ETHICS
as merchants advertise their wares.[13] To allow a lawyer to advertise his
talent or skill is to commercialize the practice of law, degrade the
profession in the publics estimation and impair its ability to efficiently
render that high character of service to which every member of the bar
is called.[14]
Rule 2.03 of the CPR provides:
RULE 2.03. A LAWYER SHALL NOT DO OR PERMIT TO BE DONE
ANY ACT DESIGNED PRIMARILY TO SOLICIT LEGAL BUSINESS.
Hence, lawyers are prohibited from soliciting cases for the purpose of
gain, either personally or through paid agents or brokers.[15] Such
actuation constitutes malpractice, a ground for disbarment.[16]
Rule 2.03 should be read in connection with Rule 1.03 of the CPR which
provides:
RULE 1.03. A LAWYER SHALL NOT, FOR ANY CORRUPT MOTIVE
OR INTEREST, ENCOURAGE ANY SUIT OR PROCEEDING OR
DELAY ANY MANS CAUSE.
This rule proscribes ambulance chasing (the solicitation of almost any
kind of legal business by an attorney, personally or through an agent in
order to gain employment)[17] as a measure to protect the community
from barratry and champerty.[18]
Complainant presented substantial evidence[19] (consisting of the sworn
statements of the very same persons coaxed by Labiano and referred to
respondents office) to prove that respondent indeed solicited legal
business as well as profited from referrals suits.
Although respondent initially denied knowing Labiano in his answer, he
later admitted it during the mandatory hearing.
Through Labianos actions, respondents law practice was benefited.
Hapless seamen were enticed to transfer representation on the strength
of Labianos word that respondent could produce a more favorable result.
Based on the foregoing, respondent clearly solicited employment
violating Rule 2.03, and Rule 1.03 and Canon 3 of the CPR and Section
27, Rule 138 of the Rules of Court.
With regard to respondents violation of Rule 8.02 of the CPR, settled is
the rule that a lawyer should not steal another lawyers client nor induce
the latter to retain him by a promise of better service, good result or
reduced fees for his services.[20] Again the Court notes that respondent
never denied having these seafarers in his client list nor receiving
benefits from Labianos referrals. Furthermore, he never denied Labianos
connection to his office.[21] Respondent committed an unethical,
predatory overstep into anothers legal practice. He cannot escape
liability under Rule 8.02 of the CPR.
Moreover, by engaging in a money-lending venture with his clients as
borrowers, respondent violated Rule 16.04:
Rule 16.04 A lawyer shall not borrow money from his client unless the
clients interests are fully protected by the nature of the case or by
independent advice. Neither shall a lawyer lend money to a client except,
when in the interest of justice, he has to advance necessary expenses
in a legal matter he is handling for the client.
The rule is that a lawyer shall not lend money to his client. The only
exception is, when in the interest of justice, he has to advance necessary
expenses (such as filing fees, stenographers fees for transcript of
PINEDAPCGRNMAN
stenographic notes, cash bond or premium for surety bond, etc.) for a
matter that he is handling for the client.
The rule is intended to safeguard the lawyers independence of mind so
that the free exercise of his judgment may not be adversely affected.[22] It
seeks to ensure his undivided attention to the case he is handling as well
as his entire devotion and fidelity to the clients cause. If the lawyer lends
money to the client in connection with the clients case, the lawyer in
effect acquires an interest in the subject matter of the case or an
additional stake in its outcome.[23] Either of these circumstances may
lead the lawyer to consider his own recovery rather than that of his client,
or to accept a settlement which may take care of his interest in the verdict
to the prejudice of the client in violation of his duty of undivided fidelity to
the clients cause.[24]
As previously mentioned, any act of solicitation constitutes
malpractice[25] which calls for the exercise of the Courts disciplinary
powers. Violation of anti-solicitation statutes warrants serious sanctions
for initiating contact with a prospective client for the purpose of obtaining
employment.[26] Thus, in this jurisdiction, we adhere to the rule to protect
the public from the Machiavellian machinations of unscrupulous lawyers
and to uphold the nobility of the legal profession.
Considering the myriad infractions of respondent (including violation of
the prohibition on lending money to clients), the sanction recommended
by the IBP, a mere reprimand, is a wimpy slap on the wrist. The proposed
penalty is grossly incommensurate to its findings.
A final word regarding the calling card presented in evidence by
petitioner. A lawyers best advertisement is a well-merited reputation for
professional capacity and fidelity to trust based on his character and
conduct.[27] For this reason, lawyers are only allowed to announce their
services by publication in reputable law lists or use of simple professional
cards.
Professional calling cards may only contain the following details:
(a) lawyers name;
(b) name of the law firm with which he is connected;
(c) address;
(d) telephone number and
(e) special branch of law practiced.[28]
Labianos calling card contained the phrase with financial assistance.
The phrase was clearly used to entice clients (who already had
representation) to change counsels with a promise of loans to finance
their legal actions. Money was dangled to lure clients away from their
original lawyers, thereby taking advantage of their financial distress and
emotional vulnerability. This crass commercialism degraded the integrity
of the bar and deserved no place in the legal profession. However, in the
absence of substantial evidence to prove his culpability, the Court is not
prepared to rule that respondent was personally and directly responsible
for the printing and distribution of Labianos calling cards.
WHEREFORE, respondent Atty. Nicomedes Tolentino for violating
Rules 1.03, 2.03, 8.02 and 16.04 and Canon 3 of the Code of
Professional Responsibility and Section 27, Rule 138 of the Rules of
Court is hereby SUSPENDED from the practice of law for a period of one
year effective immediately from receipt of this resolution. He
is STERNLY WARNED that a repetition of the same or similar acts in the
Page 80
future shall be dealt with more severely.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Let a copy of this Resolution be made part of his records in the Office of
the Bar Confidant, Supreme Court of the Philippines, and be furnished
to the Integrated Bar of the Philippines and the Office of the Court
Administrator to be circulated to all courts.
SO ORDERED.
RULE 15.08 A Lawyer Shall Make Clear Whether He Is Acting In
Another Capacity.
RULE 2.04: A lawyer shall not charge rates lower than those
customarily prescribed unless the circumstances so warrant.
CANON 3 Information on Legal Services that is True, Honest, Fair,
Dignified and Objective
Rule 3.01 A lawyer shall not use or permit the use of any false,
fraudulent, misleading, deceptive, undignified, self-auditory or
unfair statement or claim regarding his qualifications or legal
services.
Violation of Rule 3.01 is unethical, whether done by him
personally or through another with his permission.
[A.C. No. 5299. August 19, 2003]
ATTY. ISMAEL G. KHAN, JR., Assistant Court Administrator and
Chief, Public Information Office, complainant, vs. ATTY. RIZALINO
T. SIMBILLO, respondent.
[G.R. No. 157053. August 19, 2003]
ATTY. RIZALINO T. SIMBILLO, petitioner, vs. IBP COMMISSION ON
BAR DISCIPLINE and ATTY. ISMAEL G. KHAN, JR., in his capacity
as Assistant Court Administrator and Chief, Public Information
Office, respondents.
RESOLUTION
YNARES-SANTIAGO, J.:
This administrative complaint arose from a paid advertisement that
appeared in the July 5, 2000 issue of the newspaper, Philippine Daily
Inquirer, which reads: ANNULMENT OF MARRIAGE Specialist 532-
4333/521-2667.
Ms. Ma. Theresa B. Espeleta, a staff member of the Public Information
Office of the Supreme Court, called up the published telephone number
and pretended to be an interested party. She spoke to Mrs. Simbillo,
who claimed that her husband, Atty. Rizalino Simbillo, was an expert in
handling annulment cases and can guarantee a court decree within four
to six months, provided the case will not involve separation of property
or custody of children. Mrs. Simbillo also said that her husband charges
a fee of P48,000.00, half of which is payable at the time of filing of the
case and the other half after a decision thereon has been rendered.
Further research by the Office of the Court Administrator and the Public
Information Office revealed that similar advertisements were published
in the August 2 and 6, 2000 issues of the Manila Bulletin and August 5,
2000 issue of The Philippine Star.
On September 1, 2000, Atty. Ismael G. Khan, Jr., in his capacity as
Assistant Court Administrator and Chief of the Public Information Office,
filed an administrative complaint against Atty. Rizalino T. Simbillo for
improper advertising and solicitation of his legal services, in violation of
Rule 2.03 and Rule 3.01 of the Code of Professional Responsibility and
Rule 138, Section 27 of the Rules of Court.
In his answer, respondent admitted the acts imputed to him, but argued
that advertising and solicitation per se are not prohibited acts; that the
time has come to change our views about the prohibition on advertising
and solicitation; that the interest of the public is not served by the
absolute prohibition on lawyer advertising; that the Court can lift the ban
on lawyer advertising; and that the rationale behind the decades-old
prohibition should be abandoned. Thus, he prayed that he be
exonerated from all the charges against him and that the Court
PINEDAPCGRNMAN
promulgate a ruling that advertisement of legal services offered by a
lawyer is not contrary to law, public policy and public order as long as it
is dignified.
The case was referred to the Integrated Bar of the Philippines for
investigation, report and recommendation. On June 29, 2002, the IBP
Commission on Bar Discipline passed Resolution No. XV-2002-306,
finding respondent guilty of violation of Rules 2.03 and 3.01 of the Code
of Professional Responsibility and Rule 138, Section 27 of the Rules of
Court, and suspended him from the practice of law for one (1) year with
the warning that a repetition of similar acts would be dealt with more
severely. The IBP Resolution was noted by this Court on November 11,
2002.
In the meantime, respondent filed an Urgent Motion for Reconsideration,
which was denied by the IBP in Resolution No. XV-2002-606 dated
October 19, 2002
Hence, the instant petition for certiorari, which was docketed as G.R. No.
157053 entitled, Atty. Rizalino T. Simbillo, Petitioner versus IBP
Commission on Bar Discipline, Atty. Ismael G. Khan, Jr., Asst. Court
Administrator and Chief, Public Information Office, Respondents. This
petition was consolidated with A.C. No. 5299 per the Courts Resolution
dated March 4, 2003.
In a Resolution dated March 26, 2003, the parties were required to
manifest whether or not they were willing to submit the case for resolution
on the basis of the pleadings. Complainant filed his Manifestation on April
25, 2003, stating that he is not submitting any additional pleading or
evidence and is submitting the case for its early resolution on the basis
of pleadings and records thereof. Respondent, on the other hand, filed a
Supplemental Memorandum on June 20, 2003.
We agree with the IBPs Resolutions Nos. XV-2002-306 and XV-2002-
606.
Rules 2.03 and 3.01 of the Code of Professional Responsibility read:
Rule 2.03. A lawyer shall not do or permit to be done any act designed
primarily to solicit legal business.
Rule 3.01. A lawyer shall not use or permit the use of any false,
fraudulent, misleading, deceptive, undignified, self-laudatory or unfair
statement or claim regarding his qualifications or legal services.
Rule 138, Section 27 of the Rules of Court states:
SEC. 27. Disbarment and suspension of attorneys by Supreme Court,
grounds therefor. A member of the bar may be disbarred or suspended
from his office as attorney by the Supreme Court for any deceit,
malpractice or other gross misconduct in such office, grossly immoral
conduct or by reason of his conviction of a crime involving moral
turpitude, or for any violation of the oath which he is required to take
before the admission to practice, or for a willful disobedience appearing
as attorney for a party without authority to do so.
It has been repeatedly stressed that the practice of law is not a business.
It is a profession in which duty to public service, not money, is the primary
consideration. Lawyering is not primarily meant to be a money-making
venture, and law advocacy is not a capital that necessarily yields profits.
The gaining of a livelihood should be a secondary consideration. The
duty to public service and to the administration of justice should be the
primary consideration of lawyers, who must subordinate their personal
interests or what they owe to themselves. The following elements
distinguish the legal profession from a business:
1. A duty of public service, of which the emolument is a by-product,
and in which one may attain the highest eminence without making much
money;
2. A relation as an officer of the court to the administration of justice
involving thorough sincerity, integrity and reliability;
3. A relation to clients in the highest degree of fiduciary;
4. A relation to colleagues at the bar characterized by candor,
fairness, and unwillingness to resort to current business methods of
advertising and encroachment on their practice, or dealing directly with
their clients.
Page 81
There is no question that respondent committed the acts complained of.
He himself admits that he caused the publication of the advertisements.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
While he professes repentance and begs for the Courts indulgence, his
contrition rings hollow considering the fact that he advertised his legal
services again after he pleaded for compassion and after claiming that
he had no intention to violate the rules. Eight months after filing his
answer, he again advertised his legal services in the August 14, 2001
issue of the Buy & Sell Free Ads Newspaper. Ten months later, he
caused the same advertisement to be published in the October 5, 2001
issue of Buy & Sell. Such acts of respondent are a deliberate and
contemptuous affront on the Courts authority.
What adds to the gravity of respondents acts is that in advertising
himself as a self-styled Annulment of Marriage Specialist, he wittingly
or unwittingly erodes and undermines not only the stability but also the
sanctity of an institution still considered sacrosanct despite the
contemporary climate of permissiveness in our society. Indeed, in
assuring prospective clients that an annulment may be obtained in four
to six months from the time of the filing of the case, he in fact encourages
people, who might have otherwise been disinclined and would have
refrained from dissolving their marriage bonds, to do so.
Nonetheless, the solicitation of legal business is not altogether
proscribed. However, for solicitation to be proper, it must be compatible
with the dignity of the legal profession. If it is made in a modest and
decorous manner, it would bring no injury to the lawyer and to the bar.
Thus, the use of simple signs stating the name or names of the lawyers,
the office and residence address and fields of practice, as well as
advertisement in legal periodicals bearing the same brief data, are
permissible. Even the use of calling cards is now acceptable. Publication
in reputable law lists, in a manner consistent with the standards of
conduct imposed by the canon, of brief biographical and informative data
is likewise allowable. As explicitly stated in Ulep v. Legal Clinic, Inc.:
Such data must not be misleading and may include only a statement of
the lawyers name and the names of his professional associates;
addresses, telephone numbers, cable addresses; branches of law
practiced; date and place of birth and admission to the bar; schools
attended with dates of graduation, degrees and other educational
distinctions; public or quasi-public offices; posts of honor; legal
authorships; legal teaching positions; membership and offices in bar
associations and committees thereof, in legal and scientific societies and
legal fraternities; the fact of listings in other reputable law lists; the names
and addresses of references; and, with their written consent, the names
of clients regularly represented.
The law list must be a reputable law list published primarily for that
purpose; it cannot be a mere supplemental feature of a paper, magazine,
trade journal or periodical which is published principally for other
purposes. For that reason, a lawyer may not properly publish his brief
biographical and informative data in a daily paper, magazine, trade
journal or society program. Nor may a lawyer permit his name to be
published in a law list the conduct, management, or contents of which
are calculated or likely to deceive or injure the public or the bar, or to
lower dignity or standing of the profession.
The use of an ordinary simple professional card is also permitted. The
card may contain only a statement of his name, the name of the law firm
which he is connected with, address, telephone number and special
branch of law practiced. The publication of a simple announcement of
the opening of a law firm or of changes in the partnership, associates,
firm name or office address, being for the convenience of the profession,
is not objectionable. He may likewise have his name listed in a telephone
directory but not under a designation of special branch of law. (emphasis
and italics supplied)
WHEREFORE, in view of the foregoing, respondent RIZALINO T.
SIMBILLO is found GUILTY of violation of Rules 2.03 and 3.01 of the
Code of Professional Responsibility and Rule 138, Section 27 of the
Rules of Court. He is SUSPENDED from the practice of law for ONE (1)
YEAR effective upon receipt of this Resolution. He is likewise STERNLY
WARNED that a repetition of the same or similar offense will be dealt
with more severely.
PINEDAPCGRNMAN
Let copies of this Resolution be entered in his record as attorney and be
furnished the Integrated Bar of the Philippines and all courts in the
country for their information and guidance.
SO ORDERED.
Vitug, (Acting Chairman),Carpio, and Azcuna, JJ., concur.
Davide, Jr., C.J., (Chairman ), abroad, on official business.
EN BANC
[B.M. No. 553. June 17, 1993.]
MAURICIO C. ULEP, petitioner, vs. THE LEGAL CLINIC, INC.,
respondent.
SYLLABUS
1. LEGAL AND JUDICIAL ETHICS; PRACTICE OF LAW, MEANING
AND EXTENT OF. Practice of law means any activity, in or out of
court, which requires the application of law, legal procedures,
knowledge, training and experience. To engage in the practice of law is
to perform those acts which are characteristic of the profession.
Generally, to practice law is to give advice or render any kind of service
that involves legal knowledge or skill. The practice of law is not limited to
the conduct of cases in court. It includes legal advice and counsel, and
the preparation of legal instruments and contracts by which legal rights
are secured, although such matter may or may not be pending in a court.
In the practice of his profession, a licensed attorney at law generally
engages in three principal types of professional activity: legal advice and
instructions to clients to inform them of their rights and obligations,
preparation for clients of documents requiring knowledge of legal
principles not possessed by ordinary layman, and appearance for clients
before public tribunals which possess power and authority to determine
rights of life, liberty, and property according to law, in order to assist in
proper interpretation and enforcement of law. When a person
participates in a trial and advertises himself as a lawyer, he is in the
practice of law. One who confers with clients, advises them as to their
legal rights and then takes the business to an attorney and asks the latter
to look after the case in court, is also practicing law. Giving advice for
compensation regarding the legal status and rights of another and the
conduct with respect thereto constitutes a practice of law. One who
renders an opinion as to the proper interpretation of a statute, and
receives pay for it, is, to that extent, practicing law.
2. ID.; ID.; LEGAL SUPPORT SERVICES IN CASE AT BAR
CONSTITUTE PRACTICE OF LAW. The practice of law, therefore,
covers a wide range of activities in and out of court. Applying the
aforementioned criteria to the case at bar, we agree with the perceptive
findings and observations of the aforestated bar associations that the
activities of respondent, as advertised, constitute "practice of law." The
contention of respondent that it merely offers legal support services can
neither be seriously considered nor sustained. Said proposition is belied
by respondent's own description of the services it has been offering, to
wit: . . . While some of the services being offered by respondent
corporation merely involve mechanical and technical know-how, such as
the installation of computer systems and programs for the efficient
management of law offices, or the computerization of research aids and
materials, these will not suffice to justify an exception to the general rule.
What is palpably clear is that respondent corporation gives out legal
information to laymen and lawyers. Its contention that such function is
non-advisory and non-diagnostic is more apparent than real. In providing
information, for example, about foreign laws on marriage, divorce and
adoptation, it strains the credulity of this Court that all that respondent
corporation will simply do is look for the law, furnish a copy thereof to the
client, and stop there as if it were merely a bookstore. With its attorneys
and so called paralegals, it will necessarily have to explain to the client
the intricacies of the law and advise him or her on the proper course of
action to be taken as may be provided for by said law. That is what its
advertisements represent and for which services it will consequently
Page 82
charge and be paid. That activity falls squarely within the jurisprudential
definition of "practice of law." Such a conclusion will not be altered by the
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
fact that respondent corporation does not represent clients in court since
law practice, as the weight of authority holds, is not limited merely to
court appearances but extends to legal research, giving legal advice,
contract drafting, and so forth. The aforesaid conclusion is further
strengthened by an article published in the January 13, 1991 issue of the
Starweek/The Sunday Magazine of the Philippine Star, entitled "Rx for
Legal Problems," where an insight into the structure, main purpose and
operations of respondent corporation was given by its own "proprietor,"
Atty. Rogelio P. Nogales: . . .
3. ID.; ID.; ID.; PARALEGAL OR LEGAL ASSISTANT; CONCEPT IN
THE UNITED STATES. Paralegals in the United States are trained
professionals. As admitted by respondent, there are schools and
universities there which offer studies and degrees in paralegal education,
while there are none in the Philippines. As the concept of the "paralegal"
or "legal assistant" evolved in the United States, standards and
guidelines also evolved to protect the general public. One of the major
standards or guidelines was developed by the American Bar Association
which set up Guidelines for the Approval of Legal Assistant Education
Programs (1973). Legislation has even been proposed to certify legal
assistants. There are also associations of paralegals in the United States
with their own code of professional ethics, such as the National
Association of Legal Assistants, Inc. and the American Paralegal
Association.
4. ID.; ID.; ID.; ID.; CONCEPT IN THE PHILIPPINES. In the
Philippines, we still have a restricted concept and limited acceptance of
what may be considered as paralegal service. As pointed out by FIDA,
some persons not duly licensed to practice law are or have been allowed
limited representation in behalf of another or to render legal services, but
such allowable services are limited in scope and extent by the law, rules
or regulations granting permission therefor. (Illustrations: . . .)
5. ID.; ID.; ID.; ID.; PHILIPPINE JUDICIAL POLICY ON PARALEGAL.
We have to necessarily and definitely reject respondent's position that
the concept in the United States of paralegals as an occupation separate
from the law profession be adopted in this jurisdiction. Whatever may be
its merits, respondent cannot but be aware that this should first be a
matter for judicial rules or legislative action, and not of unilateral adoption
as it has done. . . . Accordingly, we have adopted the American judicial
policy that, in the absence of constitutional or statutory authority, a
person who has not been admitted as an attorney cannot practice law
for the proper administration of justice cannot be hindered by the
unwarranted intrusion of an unauthorized and unskilled person into the
practice of law. That policy should continue to be one of encouraging
persons who are unsure of their legal rights and remedies to seek legal
assistance only from persons licensed to practice law in the state.
6. ID.; ID.; ID.; ID.; ID.; PRACTICE OF LAW IN CASE AT BAR CANNOT
BE PERFORMED BY PARALEGALS; REASON. It should be noted
that in our jurisdiction the services being offered by private respondent
which constitute practice of law cannot be performed by paralegals. Only
a person duly admitted as a member of the bar, or hereafter admitted as
such in accordance with the provisions of the Rules of Court, and who is
in good and regular standing, is entitled to practice law. . . .
7. ID.; ADVERTISEMENT BY LAWYER; RULE. Anent the issue on
the validity of the questioned advertisements, the Code of Professional
Responsibility provides that a lawyer in making known his legal services
shall use only true, honest, fair, dignified and objective information or
statement of facts. He is not supposed to use or permit the use of any
false, fraudulent, misleading, deceptive, undignified, self-laudatory or
unfair statement or claim regarding his qualifications or legal services.
Nor shall he pay or give something of value to representatives of the
mass media in anticipation of, or in return for, publicity to attract legal
business. Prior to the adoption of the Code of Professional
Responsibility, the Canons of Professional Ethics had also warned that
lawyers should not resort to indirect advertisements for professional
employment, such as furnishing or inspiring newspaper comments, or
procuring his photograph to be published in connection with causes in
which the lawyer has been or is engaged or concerning the manner of
PINEDAPCGRNMAN
their conduct, the magnitude of the interest involved, the importance of
the lawyer's position, and all other like self-laudation.
8. ID.; ID.; ID.; CHARACTER AND CONDUCT AS BEST
ADVERTISEMENT. We repeat, the canons of the profession tell us
that the best advertising possible for a lawyer is a well-merited reputation
for professional capacity and fidelity to trust, which must be earned as
the outcome of character and conduct. Good and efficient service to a
client as well as to the community has a way of publicizing itself and
catching public attention. That publicity is a normal by-product of
effective service which is right and proper. A good and reputable lawyer
needs no artificial stimulus to generate it and to magnify his success. He
easily sees the difference between a normal by-product of able service
and the unwholesome result of propaganda.
9. ID.; ID.; ID.; PROHIBITION ON ADVERTISEMENT OF TALENT OR
SKILL. The standards of the legal profession condemn the lawyer's
advertisement of his talents. A lawyer cannot, without violating the ethics
of his profession, advertise his talents or skills as in a manner similar to
a merchant advertising his goods. The proscription against advertising
of legal services or solicitation of legal business rests on the fundamental
postulate that the practice of law is a profession. . . .
10. ID.; ID.; ID.; ID.; EXCEPTIONS. The first of such exceptions is the
publication in reputable law lists, in a manner consistent with the
standards of conduct imposed by the canons, of brief biographical and
informative data. "Such data must not be misleading and may include
only a statement of the lawyer's name and the names of his professional
associates; addresses, telephone numbers, cable addresses; branches
of law practiced; date and place of birth and admission to the bar; schools
attended with dates of graduation, degrees and other educational
distinction; public or quasi-public offices; posts of honor; legal
authorships; legal teaching positions; memberships and offices in bar
associations and committees thereof, in legal and scientific societies and
legal fraternities; the fact of listings in other reputable law lists; the names
and addresses of references; and, with their written consent, the names
of clients regularly represented." . . . The use of an ordinary simple
professional card is also permitted. The card may contain only a
statement of his name, the name of the law firm which he is connected
with, address, telephone number and special branch of law practiced.
The publication of a simple announcement of the opening of a law firm
or of changes in the partnership, associates, firm name or office address,
being for the convenience of the profession, is not objectionable. He may
likewise have his name listed in a telephone directory but not under a
designation of special branch of law.
11. ID.; ID.; ID.; ID.; ID.; REQUIREMENT FOR LAW LIST. The law
list must be a reputable law list published primarily for that purpose; it
cannot be a mere supplemental feature of a paper, magazine, trade
journal or periodical which is published principally for other purposes. For
that reason, a lawyer may not properly publish his brief biographical and
informative data in a daily paper, magazine, trade journal or society
program. Nor may a lawyer permit his name to be published in a law list
the conduct, management or contents of which are calculated or likely to
deceive or injure the public or the bar, or to lower the dignity or standing
of the profession.
12. ID.; ID.; ID.; ID.; ID.; CASE AT BAR. Verily, taking into
consideration the nature and contents of the advertisements for which
respondent is being taken to task, which even includes a quotation of the
fees charged by said respondent corporation for services rendered, we
find and so hold that the same definitely do not and conclusively cannot
fall under any of the above-mentioned exceptions.
13. ID.; ID.; ID.; ID.; ID.; ID.; EXCEPTION IN BATES, ET AL. vs. STATE
BAR OF ARIZONA (433 U.S. 350, 53 L Ed 2d 810, 97 S Ct. 2691) AS
TO PUBLICATION OF LEGAL FEES, NOT APPLICABLE; REASONS.
The ruling in the case of Bates, et al. vs. State Bar of Arizona, which
is repeatedly invoked and constitutes the justification relied upon by
respondent, is obviously not applicable to the case at bar. Foremost is
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the fact that the disciplinary rule involved in said case explicitly allows a
lawyer, as an exception to the prohibition against advertisements by
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
lawyers, to publish a statement of legal fees for an initial consultation or
the availability upon request of a written schedule of fees or an estimate
of the fee to be charged for the specific services. No such exception is
provided for, expressly or impliedly, whether in our former Canons of
Professional Ethics or the present Code of Professional Responsibility.
Besides, even the disciplinary rule in the Bates case contains a proviso
that the exceptions stated therein are "not applicable in any state unless
and until it is implemented by such authority in that state." This goes to
show that an exception to the general rule, such as that being invoked
by herein respondent, can be made only if and when the canons
expressly provide for such an exception. Otherwise, the prohibition
stands, as in the case at bar. It bears mention that in a survey conducted
by the American Bar Association after the decision in Bates, on the
attitude of the public about lawyers after viewing television commercials,
it was found that public opinion dropped significantly with respect to
these characteristics of lawyers: . . . Secondly, it is our firm belief that
with the present situation of our legal and judicial systems, to allow the
publication of advertisements of the kind used by respondent would only
serve to aggravate what is already a deteriorating public opinion of the
legal profession whose integrity has consistently been under attack lately
by media and the community in general. At this point in time, it is of
utmost importance in the face of such negative, even if unfair, criticisms
at times, to adopt and maintain that level of professional conduct which
is beyond reproach, and to exert all efforts to regain the high esteem
formerly accorded to the legal profession.
RESOLUTION
REGALADO, J p:
Petitioner prays this Court "to order the respondent to cease and desist
from issuing advertisements similar to or of the same tenor as that of
Annexes `A' and `B' (of said petition) and to perpetually prohibit persons
or entities from making advertisements pertaining to the exercise of the
law profession other than those allowed by law." cdrep
The advertisements complained of by herein petitioner are as follows:
Annex A
SECRET MARRIAGE?
P560.00 for a valid marriage.
Info on DIVORCE. ABSENCE.
ANNULMENT. VISA.
THE Please call:
521-0767,
LEGAL 5217232,
5222041
CLINIC, INC. 8:30 am-
6:00 pm
7-Flr.
Victoria Bldg. UN Ave., Mla.
Annex B
GUAM DIVORCE
DON PARKINSON
an Attorney in Guam, is giving FREE BOOKS on Guam Divorce through
The Legal Clinic beginning Monday to Friday during office hours.
Guam divorce. Annulment of Marriage. Immigration Problems, Visa Ext.
Quota/Non-quota Res. & Special Retiree's Visa. Declaration of Absence.
Remarriage to Filipina Fiancees. Adoption. Investment in the Phil.
US/Foreign Visa for Filipina Spouse/Children. Call Marivic.
THE 7 F Victoria
Bldg. 429 UN Ave.
LEGAL Ermita,
Manila nr. US Embassy
CLINIC, INC. 1 Tel. 521-
7232521-7251
522-2041;
521-0767
It is the submission of petitioner that the advertisements above
reproduced are champertous, unethical, demeaning of the law
profession, and destructive of the confidence of the community in the
PINEDAPCGRNMAN
integrity of the members of the bar and that, as a member of the legal
profession, he is ashamed and offended by the said advertisements,
hence the reliefs sought in his petition as herein before quoted. cdphil
In its answer to the petition, respondent admits the fact of publication of
said advertisements at its instance, but claims that it is not engaged in
the practice of law but in the rendering of "legal support services" through
paralegals with the use of modern computers and electronic machines.
Respondent further argues that assuming that the services advertised
are legal services, the act of advertising these services should be
allowed supposedly in the light of the case of John R. Bates and Van
O'Steen vs. State Bar of Arizona, 2 reportedly decided by the United
States Supreme Court on June 7, 1977.
Considering the critical implications on the legal profession of the issues
raised herein, we required the (1) Integrated Bar of the Philippines (IBP),
(2) Philippine Bar Association (PBA), (3) Philippine Lawyers' Association
(PLA), (4) U.P. Women Lawyers' Circle (WILOCI), (5) Women Lawyers
Association of the Philippines (WLAP), and (6) Federation International
de Abogadas (FIDA) to submit their respective position papers on the
controversy and, thereafter, their memoranda. 3 The said bar
associations readily responded and extended their valuable services and
cooperation of which this Court takes note with appreciation and
gratitude.
The main issues posed for resolution before the Court are whether or not
the services offered by respondent, The Legal Clinic, Inc., as advertised
by it constitutes practice of law and, in either case, whether the same
can properly be the subject of the advertisements herein complained of.
cdphil
Before proceeding with an in-depth analysis of the merits of this case,
we deem it proper and enlightening to present hereunder excerpts from
the respective position papers adopted by the aforementioned bar
associations and the memoranda submitted by them on the issues
involved in this bar matter.
1. Integrated Bar of the Philippines:
xxx xxx xxx
Notwithstanding the subtle manner by which respondent endeavored to
distinguish the two terms, i.e., "legal support services" vis-a-vis "legal
services", common sense would readily dictate that the same are
essentially without substantial distinction. For who could deny that
document search, evidence gathering, assistance to layman in need of
basic institutional services from government or non-government
agencies like birth, marriage, property, or business registration, obtaining
documents like clearance, passports, local or foreign visas, constitute
practice of law?
xxx xxx xxx
The Integrated Bar of the Philippines (IBP) does not wish to make issue
with respondent's foreign citations. Suffice it to state that the IBP has
made its position manifest, to wit, that it strongly opposes the view
espoused by respondent (to the effect that today it is alright to advertise
one's legal services).
The IBP accordingly declares in no uncertain terms its opposition to
respondent's act of establishing a "legal clinic" and of concomitantly
advertising the same through newspaper publications.
The IBP would therefore invoke the administrative supervision of this
Honorable Court to perpetually restrain respondent from undertaking
highly unethical activities in the field of law practice as aforedescribed 4
.
xxx xxx xxx
A. The use of the name "The Legal Clinic, Inc." gives the impression that
respondent corporation is being operated by lawyers and that it renders
legal services.
While the respondent repeatedly denies that it offers legal services to the
public, the advertisements in question give the impression that
respondent is offering legal services. The Petition in fact simply assumes
this to be so, as earlier mentioned, apparently because this (is) the effect
Page 84
that the advertisements have on the reading public.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
The impression created by the advertisements in question can be traced,
first of all, to the very name being used by respondent "The Legal
Clinic, Inc." Such a name, it is respectfully submitted connotes the
rendering of legal services for legal problems, just like a medical clinic
connotes medical services for medical problems. More importantly, the
term "Legal Clinic" connotes lawyers, as the term medical clinic connotes
doctors.
Furthermore, the respondent's name, as published in the advertisements
subject of the present case, appears with (the) scale(s) of justice, which
all the more reinforces the impression that it is being operated by
members of the bar and that it offers legal services. In addition, the
advertisements in question appear with a picture and name of a person
being represented as a lawyer from Guam, and this practically removes
whatever doubt may still remain as to the nature of the service or
services being offered.
It thus becomes irrelevant whether respondent is merely offering "legal
support services" as claimed by it, or whether it offers legal services as
any lawyer actively engaged in law practice does. And it becomes
unnecessary to make a distinction between "legal services" and "legal
support services," as the respondent would have it. The advertisements
in question leave no room for doubt in the minds of the reading public
that legal services are being offered by lawyers, whether true or not.
B. The advertisements in question are meant to induce the performance
of acts contrary to law, morals, public order and public policy.
It may be conceded that, as the respondent claims, the advertisements
in question are only meant to inform the general public of the services
being offered by it. Said advertisements, however, emphasize a Guam
divorce, and any law student ought to know that under the Family Code,
there is only one instance when a foreign divorce, is recognized, and that
is:
Article 26. . .Where a marriage between a Filipino citizen and a foreigner
is validly celebrated and a divorce is thereafter validly obtained abroad
by the alien spouse capacitating him or her to remarry, the Filipino
spouse shall have capacity to remarry under Philippine Law.
It must not be forgotten, too, that the Family Code (defines) a marriage
as follows:
Article 1. Marriage is a special contract of permanent union between a
man and a woman entered into in accordance with law for the
establishment of conjugal and family life. It is the foundation of the family
and an inviolable social institution whose nature, consequences, and
incidents are governed by law and not subject to stipulation, except that
marriage settlements may fix the property relation during the marriage
within the limits provided by this Code.
By simply reading the questioned advertisements, it is obvious that the
message being conveyed is that Filipinos can avoid the legal
consequences of a marriage celebrated in accordance with our law, by
simply going to Guam for a divorce. This is not only misleading, but
encourages, or serves to induce, violation of Philippine law. At the very
least, this can be considered "the dark side" of legal practice, where
certain defects in Philippine laws are exploited for the sake of profit. At
worst, this is outright malpractice. LibLex
Rule 1.02. A lawyer shall not counsel or abet activities aimed at
defiance of the law or at lessening confidence in the legal system.
In addition, it may also be relevant to point out that advertisements such
as that shown in Annex "A" of the Petition, which contains a cartoon of a
motor vehicle with the words "Just Married" on its bumper and seems to
address those planning a "secret marriage," if not suggesting a "secret
marriage," makes light of the "special contract of permanent union," the
inviolable social institution," which is how the Family Code describes
marriage, obviously to emphasize its sanctity and inviolability. Worse,
this particular advertisement appears to encourage marriages celebrated
in secrecy, which is suggestive of immoral publication of applications for
a marriage license. LLpr
If the article "Rx for Legal Problems" is to be reviewed, it can readily be
concluded that the above impressions one may gather from the
advertisements in question are accurate. The Sharon Cuneta-Gabby
PINEDAPCGRNMAN
Concepcion example alone confirms what the advertisements suggest.
Here it can be seen that criminal acts are being encouraged or committed
(a bigamous marriage in Hong Kong or Las Vegas) with impunity simply
because the jurisdiction of Philippine courts does not extend to the place
where the crime is committed.
Even if it be assumed, arguendo, that the "legal support services"
respondent offers do not constitute legal services as commonly
understood, the advertisements in question give the impression that
respondent corporation is being operated by lawyers and that it offers
legal services, as earlier discussed. Thus, the only logical consequence
is that, in the eyes of an ordinary newspaper reader, members of the bar
themselves are encouraging or inducing the performance of acts which
are contrary to law, morals, good customs and the public good, thereby
destroying and demeaning the integrity of the Bar.
xxx xxx xxx
It is respectfully submitted that respondent should be enjoined from
causing the publication of the advertisements in question, or any other
advertisements similar thereto. It is also submitted that respondent
should be prohibited from further performing or offering some of the
services it presently offers, or, at the very least, from offering such
services to the public in general.
The IBP is aware of the fact that providing computerized legal research,
electronic data gathering, storage and retrieval, standardized legal
forms, investigators for gathering of evidence, and like services will
greatly benefit the legal profession and should not be stifled but instead
encouraged. However, when the conduct of such business by non-
members of the Bar encroaches upon the practice of law, there can be
no choice but to prohibit such business.
Admittedly, many of the services involved in the case at bar can be better
performed by specialists in other fields, such as computer experts, who
by reason of their having devoted time and effort exclusively to such field
cannot fulfill the exacting requirements for admission to the Bar. To
prohibit them from "encroaching" upon the legal profession will deny the
profession of the great benefits and advantages of modern technology.
Indeed, a lawyer using a computer will be doing better than a lawyer
using a typewriter, even if both are (equal) in skill.
Both the Bench and the Bar, however, should be careful not to allow or
tolerate the illegal practice of law in any form, not only for the protection
of members of the Bar but also, and more importantly, for the protection
of the public. Technological development in the profession may be
encouraged without tolerating, but instead ensuring prevention of, illegal
practice.
There might be nothing objectionable if respondent is allowed to perform
all of its services, but only if such services are made available exclusively
to members of the Bench and Bar. Respondent would then be offering
technical assistance, not legal services. Alternatively, the more difficult
task of carefully distinguishing between which service may be offered to
the public in general and which should be made available exclusively to
members of the Bar may be undertaken. This, however, may require
further proceedings because of the factual considerations involved.
It must be emphasized, however, that some of respondent's services
ought to be prohibited outright, such as acts which tend to suggest or
induce celebration abroad of marriages which are bigamous or otherwise
illegal and void under Philippine law. While respondent may not be
prohibited from simply disseminating information regarding such matters,
it must be required to include, in the information given, a disclaimer that
it is not authorized to practice law, that certain course of action may be
illegal under Philippine law, that it is not authorized or capable of
rendering a legal opinion, that a lawyer should be consulted before
deciding on which course of action to take, and that it cannot recommend
any particular lawyer without subjecting itself to possible sanctions for
illegal practice of law.
If respondent is allowed to advertise, advertising should be directed
exclusively at members of the Bar, with a clear and unmistakable
Page 85
disclaimer that it is not authorized to practice law or perform legal
services. cdrep
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
The benefits of being assisted by paralegals cannot be ignored. But
nobody should be allowed to represent himself as a "paralegal" for profit,
without such term being clearly defined by rule or regulation, and without
any adequate and effective means of regulating his activities. Also, law
practice in a corporate form may prove to be advantageous to the legal
profession, but before allowance of such practice may be considered,
the corporation's Articles of Incorporation and By-laws must conform to
each and every provision of the Code of Professional Responsibility and
the Rules of Court 5
2. Philippine Bar Association:
xxx xxx xxx
Respondent asserts that it "is not engaged in the practice of law but
engaged in giving legal support services to lawyers and laymen, through
experienced paralegals, with the use of modern computers and
electronic machines" (pars. 2 and 3, Comment). This is absurd.
Unquestionably, respondent's acts of holding out itself to the public under
the trade name "The Legal Clinic, Inc.," and soliciting employment for its
enumerated services fall within the realm of a practice which thus yields
itself to the regulatory powers of the Supreme Court. For respondent to
say that it is merely engaged in paralegal work is to stretch credulity.
Respondent's own commercial advertisement which announces a
certain Atty. Don Perkinson to be handling the fields of law belies its
pretense. From all indications, respondent "The Legal Clinic, Inc." is
offering and rendering legal services through its reserve of lawyers. It
has been held that the practice of law is not limited to the conduct of
cases in court, but includes drawing of deeds, incorporation, rendering
opinions, and advising clients as to their legal rights and then take them
to an attorney and ask the latter to look after their case in court (See
Martin, Legal and Judicial Ethics, 1948 ed., p. 39).
It is apt to recall that only natural persons can engage in the practice of
law, and such limitation cannot be evaded by a corporation employing
competent lawyers to practice for it. Obviously, this is the scheme or
device by which respondent "The Legal Clinic, Inc." holds out itself to the
public and solicits employment of its legal services. It is an odious vehicle
for deception, especially so when the public cannot ventilate any
grievance for malpractice against the business conduit. Precisely, the
limitation of practice of law to persons who have been duly admitted as
members of the Bar (Sec. 1, Rule 138, Revised Rules of Court) is to
subject the members to the discipline of the Supreme Court. Although
respondent uses its business name, the persons and the lawyers who
act for it are subject to court discipline. The practice of law is not a
profession open to all who wish to engage in it nor can it be assigned to
another (See 5 Am. Jur. 270). It is a personal right limited to persons who
have qualified themselves under the law. It follows that not only
respondent but also all the persons who are acting for respondent are
the persons engaged in unethical law practice. 6
3. Philippine Lawyers' Association:
The Philippine Lawyers' Association's position, in answer to the issues
stated herein, are, to wit:
1. The Legal Clinic is engaged in the practice of law;
2. Such practice is unauthorized;
3. The advertisements complained of are not only unethical, but also
misleading and patently immoral; and
4. The Honorable Supreme Court has the power to suppress and punish
the Legal Clinic and its corporate officers for its unauthorized practice of
law and for its unethical, misleading and immoral advertising.
xxx xxx xxx
Respondent posits that it is not engaged in the practice of law. It claims
that it merely renders "legal support services" to lawyers, litigants and
the general public as enunciated in the Primary Purpose Clause of its
Article(s) of Incorporation. (See pages 2 to 5 of Respondent's Comment).
But its advertised services, as enumerated above, clearly and
convincingly show that it is indeed engaged in law practice, albeit outside
the court.
As advertised, it offers the general public its advisory services on
Persons and Family Relations Law, particularly regarding foreign
PINEDAPCGRNMAN
divorces, annulment of marriages, secret marriages, absence and
adoption; Immigration Laws, particularly on visa related problems,
immigration problems; the Investment Law of the Philippines and such
other related laws.
Its advertised services unmistakably require the application of the
aforesaid laws, the legal principles and procedures related thereto, the
legal advises based thereon and which activities call for legal training,
knowledge and experience.
Applying the test laid down by the Court in the aforecited Agrava Case,
the activities of respondent fall squarely and are embraced in what
lawyers and laymen equally term as "the practice of law." 7
4. U.P. Women Lawyers' Circle:
In resolving the issues before this Honorable Court, paramount
consideration should be given to the protection of the general public from
the danger of being exploited by unqualified persons or entities who may
be engaged in the practice of law.
At present, becoming a lawyer requires one to take a rigorous four-year
course of study on top of a four-year bachelor of arts or sciences course
and then to take and pass the bar examinations. Only then, is a lawyer
qualified to practice law.
While the use of a paralegal is sanctioned in many jurisdictions as an aid
to the administration of justice, there are in those jurisdictions, courses
of study and/or standards which would qualify these paralegals to deal
with the general public as such. While it may now be the opportune time
to establish these courses of study and/or standards, the fact remains
that at present, these do not exist in the Philippines. In the meantime,
this Honorable Court may decide to take measures to protect the general
public from being exploited by those who may be dealing with the general
public in the guise of being "paralegals" without being qualified to do so.
In the same manner, the general public should also be protected from
the dangers which may be brought about by advertising of legal services.
While it appears that lawyers are prohibited under the present Code of
Professional Responsibility from advertising, it appears in the instant
case that legal services are being advertised not by lawyers but by an
entity staffed by "paralegals." Clearly, measures should be taken to
protect the general public from falling prey to those who advertise legal
services without being qualified to offer such services." 8
A perusal of the questioned advertisements of Respondent, however,
seems to give the impression that information regarding validity of
marriages, divorce, annulment of marriage, immigration, visa extensions,
declaration of absence, adoption and foreign investment, which are in
essence, legal matters, will be given to them if they avail of its services.
The Respondent's name The Legal Clinic, Inc. does not help
matters. It gives the impression again that Respondent will or can cure
the legal problems brought to them. Assuming that Respondent is, as
claimed, staffed purely by paralegals, it also gives the misleading
impression that there are lawyers involved in The Legal Clinic, Inc., as
there are doctors in any medical clinic, when only "paralegals" are
involved in The Legal Clinic, Inc.
Respondent's allegations are further belied by the very admissions of its
President and majority stockholder, Atty. Nogales, who gave an insight
on the structure and main purpose of Respondent corporation in the
aforementioned "Starweek" article." 9
5. Women Lawyer's Association of the Philippines:
Annexes "A" and "B" of the petition are clearly advertisements to solicit
cases for the purpose of gain which, as provided for under the above
cited law, (are) illegal and against the Code of Professional
Responsibility of lawyers in this country.
Annex "A" of the petition is not only illegal in that it is an advertisement
to solicit cases, but it is illegal in that in bold letters it announces that the
Legal Clinic, Inc., could work out/cause the celebration of a secret
marriage which is not only illegal but immoral in this country. While it is
advertised that one has to go to said agency and pay P560 for a valid
marriage it is certainly fooling the public for valid marriages in the
Page 86
Philippines are solemnized only by officers authorized to do so under the
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
law. And to employ an agency for said purpose of contracting marriage
is not necessary.
No amount of reasoning that in the USA, Canada and other countries the
trend is towards allowing lawyers to advertise their special skills to
enable people to obtain from qualified practitioners legal services for
their particular needs can justify the use of advertisements such as are
the subject matter of this petition, for one (cannot) justify an illegal act
even by whatever merit the illegal act may serve. The law has yet to be
amended so that such as act could become justifiable. LLphil
We submit further that these advertisements that seem to project that
secret marriages and divorce are possible in this country for a fee, when
in fact it is not so, are highly reprehensible.
It would encourage people to consult this clinic about how they could go
about having a secret marriage here, when it cannot nor should ever be
attempted, and seek advice on divorce, where in this country there is
none, except under the Code of Muslim Personal Laws in the Philippines.
It is also against good morals and is deceitful because it falsely
represents to the public to be able to do that which by our laws cannot
be done (and) by our Code of Morals should not be done. LLjur
In the case (of) In re Taguda, 53 Phil. 37, the Supreme Court held that
solicitation for clients by an attorney by circulars of advertisements, is
unprofessional and offenses of this character justify permanent
elimination from the Bar. 10
6. Federacion
International de Abogadas:
xxx xxx xxx
1.7 That
entities admittedly not engaged in the practice of law, such as
management consultancy firms or travel agencies, whether run by
lawyers or not, perform the services rendered by Respondent does not
necessarily lead to the conclusion that Respondent is not unlawfully
practicing law. In the same vein, however, the fact that the business of
respondent (assuming it can be engaged in independently of the practice
of law) involves knowledge of the law does not necessarily make
respondent guilty of unlawful practice of law.
". . . Of necessity, no one . . . acting as a consultant can render effective
service unless he is familiar with such statutes and regulations. He must
be careful not to suggest a course of conduct which the law forbids. It
seems . . . clear that (the consultant's) knowledge of the law, and his use
of that knowledge as a factor in determining what measures he shall
recommend, do not constitute the practice of law . . .. It is not only
presumed that all men know the law, but it is a fact that most men have
considerable acquaintance with the broad features of the law . . .. Our
knowledge of the law accurate or inaccurate moulds our conduct
not only when we are acting for ourselves, but when we are serving
others. Bankers, liquor dealers and laymen generally possess rather
precise knowledge of the laws touching their particular business or
profession. A good example is the architect, who must be familiar with
zoning, building and fire prevention codes, factory and tenement house
statutes, and who draws plans and specifications in harmony with the
law. This is not practicing law.
"But suppose the architect, asked by his client to omit a fire tower, replies
that it is required by the statute. Or the industrial relations expert cites,
in support of some measure that he recommends, a decision of the
National Labor Relations Board. Are they practicing law? In my opinion,
they are not, provided no separate fee is charged for the legal advice or
information, and the legal question is subordinate and incidental to a
major non-legal problem.
"It is largely a matter of degree and of custom.
"If it were usual for one intending to erect a building on his land to engage
a lawyer to advise him and the architect in respect to the building code
and the like, then an architect who performed this function would
probably be considered to be trespassing on territory reserved for
licensed attorneys. Likewise, if the industrial relations field had been pre-
empted by lawyers, or custom placed a lawyer always at the elbow of
the lay personnel man. But this is not the case. The most important body
PINEDAPCGRNMAN
of industrial relations experts are the officers and business agents of the
labor unions and few of them are lawyers. Among the larger corporate
employers, it has been the practice for some years to delegate special
responsibility in employee matters to a management group chosen for
their practical knowledge and skill in such matters, and without regard to
legal training or lack of it. More recently, consultants like the defendant
have tendered to the smaller employers the same service that the larger
employers get from their own specialized staff.
"The handling of industrial relations is growing into a recognized
profession for which appropriate courses are offered by our leading
universities. The court should be very cautious about declaring [that] a
widespread, well-established method of conducting business is unlawful,
or that the considerable class of men who customarily perform a certain
function have no right to do so, or that the technical education given by
our schools cannot be used by the graduates in their business.
"In determining whether a man is practicing law, we should consider his
work for any particular client or customer, as a whole. I can imagine
defendant being engaged primarily to advise as to the law defining his
client's obligations to his employees, to guide his client along the path
charted by law. This, of course, would be the practice of the law. But
such is not the fact in the case before me. Defendant's primary efforts
are along economic and psychological lines. The law only provides the
frame within which he must work, just as the zoning code limits the kind
of building the architect may plan. The incidental legal advice or
information defendant may give, does not transform his activities into the
practice of law. Let me add that if, even as a minor feature of his work,
he performed services which are customarily reserved to members of the
bar, he would be practicing law. For instance, if as part of a welfare
program, he drew employees' wills.
"Another branch of defendant's work is the representation of the
employer in the adjustment of grievances and in collective bargaining,
with or without a mediator. This is not per se the practice of law. Anyone
may use an agent for negotiations and may select an agent particularly
skilled in the subject under discussion, and the person appointed is free
to accept the employment whether or not he is a member of the bar.
Here, however, there may be an exception where the business turns on
a question of law. Most real estate sales are negotiated by brokers who
are not lawyers. But if the value of the land depends on a disputed right-
of-way and the principal role of the negotiator is to assess the probable
outcome of the dispute and persuade the opposite party to the same
opinion, then it may be that only a lawyer can accept the assignment. Or
if a controversy between an employer and his men grows from differing
interpretations of a contract, or of a statute, it is quite likely that defendant
should not handle it. But I need not reach a definite conclusion here,
since the situation is not presented by the proofs. cdphil
"Defendant also appears to represent the employer before administrative
agencies of the federal government, especially before trial examiners of
the National Labor Relations Board. An agency of the federal
government, acting by virtue of an authority granted by the Congress,
may regulate the representation of parties before such agency. The
State of New Jersey is without power to interfere with such determination
or to forbid representation before the agency by one whom the agency
admits. The rules of the National Labor Relations Board give to a party
the right to appear `in person, or by counsel, or by other representative.'
Rules and Regulations, September 11th, 1946, S. 203.31. `Counsel'
here means a licensed attorney, and `other representative' one not a
lawyer. In this phase of his work, defendant may lawfully do whatever
the Labor Board allows, even arguing questions purely legal."
(Auerbacher v. Wood, 53 A. 2d 800, cited in Statsky, Introduction to
Paralegalism [1974], at pp. 154-156.).
1.8 From the
foregoing, it can be said that a person engaged in a lawful calling (which
may involve knowledge of the law) is not engaged in the practice of law
provided that:
Page 87
(a) The legal question is subordinate and incidental to a major non-legal
problem;
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LEGAL ETHICS
(b) The services performed are not customarily reserved to members of
the bar;
(c) No separate fee is charged for the legal advice or information.
All these must be considered in relation to the work for any particular
client as a whole.
1.9. If the person involved is both lawyer and non-lawyer, the Code of
Professional Responsibility succinctly states the rule of conduct:
"Rule 15.08 A lawyer who is engaged in another profession or
occupation concurrently with the practice of law shall make clear to his
client whether he is acting as a lawyer or in another capacity."
1.10. In the present case, the Legal Clinic appears to render wedding
services (See Annex "A", Petition). Services on routine, straightforward
marriages, like securing a marriage license, and making arrangements
with a priest or a judge, may not constitute practice of law. However, if
the problem is as complicated as that described in Rx for Legal
Problems" on the Sharon Cuneta-Gabby Concepcion-Richard Gomez
case, then what may be involved is actually the practice of law. If a non-
lawyer, such as the Legal Clinic, renders such services, then it is
engaged in the unauthorized practice of law.
1.11 The Legal Clinic also appears to give information on divorce,
absence, annulment of marriage and visas (See Annexes "A" and "B",
Petition). Purely giving informational materials may not constitute
practice of law. The business is similar to that of a bookstore where the
customer buys materials on the subject and determines by himself what
courses of action to take.
It is not entirely improbable, however, that aside from purely giving
information, the Legal Clinic's paralegals may apply the law to the
particular problem of the client, and give legal advice. Such would
constitute unauthorized practice of law.
"It cannot be claimed that the publication of a legal text which purports
to say what the law is amounts to legal practice. And the mere fact that
the principles or rules stated in the text may be accepted by a particular
reader as a solution to his problem does not affect this. . . . Apparently it
is urged that the conjoining of these two, that is, the text and the forms,
with advice as to how the forms should be filled out, constitutes the
unlawful practice of law. But that is the situation with many approved and
accepted texts. Dacey's book is sold to the public at large. There is no
personal contact or relationship with a particular individual. Nor does
there exist that relation of confidence and trust so necessary to the status
of attorney and client. THIS IS THE ESSENTIAL OF LEGAL PRACTICE
THE REPRESENTATION AND ADVISING OF A PARTICULAR
PERSON IN A PARTICULAR SITUATION. At most the book assumes
to offer general advice on common problems, and does not purport to
give personal advice on a specific problem peculiar to a designated or
readily identified person. Similarly the defendant's publication does not
purport `to give personal advice on a specific problem peculiar to a
designated or readily identified person in a particular situation in the
publication and sale of the kits, such publication and sale did not
constitute the unlawful practice of law . . .. There being no legal
impediment under the statute to the sale of the kit, there was no proper
basis for the injunction against defendant maintaining an office for the
purpose of selling to persons seeking a divorce, separation, annulment
or separation agreement any printed material or writings relating to
matrimonial law or the prohibition in the memorandum of modification of
the judgment against defendant having an interest in any publishing
house publishing his manuscript on divorce and against his having any
personal contact with any prospective purchaser. The record does fully
support, however, the finding that for the charge of $75 or $100 for the
kit, the defendant gave legal advice in the course of personal contacts
concerning particular problems which might arise in the preparation and
presentation of the purchaser's asserted matrimonial cause of action or
pursuit of other legal remedies and assistance in the preparation of
necessary documents (The injunction therefore sought to) enjoin
conduct constituting the practice of law, particularly with reference to the
giving of advice and counsel by the defendant relating to specific
problems of particular individuals in connection with a divorce,
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separation, annulment of separation agreement sought and should be
affirmed." (State v. Winder, 348, NYS 2d 270 [1973], cited in Statsky,
supra at p. 101.)
1.12. Respondent, of course, states that its services are "strictly non-
diagnostic, non-advisory." It is not controverted, however, that if the
services "involve giving legal advice or counselling," such would
constitute practice of law (Comment, par. 6.2). It is in this light that FIDA
submits that a factual inquiry may be necessary for the judicious
disposition of this case.
2.10. Annex "A" may be ethically objectionable in that it can give the
impression (or perpetuate the wrong notion) that there is a secret
marriage. With all the solemnities, formalities and other requisites of
marriages (See Articles 2, et seq., Family Code), no Philippine marriage
can be secret.
2.11. Annex "B" may likewise be ethically objectionable. The second
paragraph thereof (which is not necessarily related to the first paragraph)
fails to state the limitation that only "paralegal services" or "legal support
services", and not legal services, are available." 11
A prefatory discussion on the meaning of the phrase "practice of law"
becomes exigent for a proper determination of the issues raised by the
petition at bar. On this score, we note that the clause "practice of law"
has long been the subject of judicial construction and interpretation. The
courts have laid down general principles and doctrines explaining the
meaning and scope of the term, some of which we now take into account.
LLjur
Practice of law means any activity, in or out of court, which requires the
application of law, legal procedures, knowledge, training and experience.
To engage in the practice of law is to perform those acts which are
characteristic of the profession. Generally, to practice law is to give
advice or render any kind of service that involves legal knowledge or skill.
12 The practice of law is not limited to the conduct of cases in court. It
includes legal advice and counsel, and the preparation of legal
instruments and contracts by which legal rights are secured, although
such matter may or may not be pending in a court. 13
In the practice of his profession, a licensed attorney at law generally
engages in three principal types of professional activity: legal advice and
instructions to clients to inform them of their rights and obligations,
preparation for clients of documents requiring knowledge of legal
principles not possessed by ordinary layman, and appearance for clients
before public tribunals which possess power and authority to determine
rights of life, liberty, and property according to law, inorder to assist in
proper interpretation and enforcement of law. 14
When a person participates in a trial and advertises himself as a lawyer,
he is in the practice of law. 15 One who confers with clients, advises
them as to their legal rights and then takes the business to an attorney
and asks the later to look after the case in court, is also practicing law.
16 Giving advice for compensation regarding the legal status and rights
of another and the conduct with respect thereto constitutes a practice of
law. 17 One who renders an opinion as to the proper interpretation of a
statute, and receives pay for it, is, to that extent, practicing law. 18
In the recent case of Cayetano vs. Monsod, 19 after citing the doctrines
in several cases, we laid down the test to determine whether certain acts
constitute "practice of law," thus:
Black defines "practice of law" as:
"The rendition of services requiring the knowledge and the application of
legal principles and technique to serve the interest of another with his
consent. It is not limited to appearing in court, or advising and assisting
in the conduct of litigation, but embraces the preparation of pleadings,
and other papers incident to actions and special proceedings,
conveyancing, the preparation of legal instruments of all kinds, and the
giving of all legal advice to clients. It embraces all advice to clients and
all actions taken for them in matters connected with the law."
The practice of law is not limited to the conduct of cases in court. (Land
Title Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650).
Page 88
A person is also considered to be in the practice of law when he:
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LEGAL ETHICS
". . . for valuable consideration engages in the business of advising
persons, firms, associations or corporations as to their rights under the
law, or appears in a representative capacity as an advocate in
proceedings, pending or prospective, before any court, commissioner,
referee, board, body, committee, or commission constituted by law or
authorized to settle controversies and there, in such representative
capacity, performs any act or acts for the purpose of obtaining or
defending the rights of their clients under the law. Otherwise stated, one
who, in a representative capacity, engages in the business of advising
clients as to their rights under the law, or while so engaged performs any
act or acts either in court or outside of court for that purpose, is engaged
in the practice of law. (State ex. rel. Mckittrick v. C.S. Dudley and Co.,
102 S.W. 2d 895, 340 Mo. 852)."
This Court, in the case of Philippine Lawyers Association v. Agrava (105
Phil. 173, 176-177), stated:
"The practice of law is not limited to the conduct of cases or litigation in
court; it embraces the preparation of pleadings and other papers incident
to actions and special proceedings, the management of, such actions
and proceedings on behalf of clients before judges and courts, and in
addition, conveying. In general, all advice to clients, and all action taken
for them in matters connected with the law incorporation services,
assessment and condemnation services contemplating an appearance
before a judicial body, the foreclosure of a mortgage, enforcement of a
creditor's claim in bankruptcy and insolvency proceedings, and
conducting proceedings in attachment, and in matters of estate and
guardianship have been held to constitute law practice, as do the
preparation and drafting of legal instruments, where the work done
involves the determination by the trained legal mind of the legal effect of
facts and conditions. (5 Am. Jr. p. 262, 263).
"Practice of law under modern conditions consists in no small part of
work performed outside of any court and having no immediate relation to
proceedings in court. It embraces conveyancing, the giving of legal
advice on a large variety of subjects, and the preparation and execution
of legal instruments covering an extensive field of business and trust
relations and other affairs. Although these transactions may have no
direct connection with court proceedings, they are always subject to
become involved in litigation. They require in many aspects a high
degree of legal skill, a wide experience with men and affairs, and great
capacity for adaptation to difficult and complex situations. These
customary functions of an attorney or counselor at law bear an intimate
relation to the administration of justice by the courts. No valid distinction,
so far as concerns the question set forth in the order, can be drawn
between that part of the work of the lawyer which involves appearance
in court and that part which involves advice and drafting of instruments
in his office. It is of importance to the welfare of the public that these
manifold customary functions be performed by persons possessed of
adequate learning and skill, of sound moral character, and acting at all
times under the heavy trust obligations to clients which rests upon all
attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1973 ed.],
pp. 665-666, citing In Re Opinion of the Justices [Mass.], 194 N.E. 313,
quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179
A. 139, 144)."
The practice of law, therefore, covers a wide range of activities in and
out of court. Applying the aforementioned criteria to the case at bar, we
agree with the perceptive findings and observations of the aforestated
bar associations that the activities of respondent, as advertised,
constitute "practice of law."
The contention of respondent that it merely offers legal support services
can neither be seriously considered nor sustained. Said proposition is
belied by respondent's own description of the services it has been
offering, to wit:
"Legal support services basically consist of giving ready information by
trained paralegals to laymen and lawyers, which are strictly non-
diagnostic, non-advisory, through the extensive use of computers and
modern information technology in the gathering, processing, storage,
transmission and reproduction of information and communication, such
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as computerized legal research; encoding and reproduction of
documents and pleadings prepared by laymen or lawyers; document
search; evidence gathering; locating parties or witnesses to a case; fact
finding investigations; and assistance to laymen in need of basic
institutional services from government or non-government agencies, like
birth, marriage, property, or business registrations; educational or
employment records or certifications, obtaining documentation like
clearances, passports, local or foreign visas; giving information about
laws of other countries that they may find useful, like foreign divorce,
marriage or adoption laws that they can avail of preparatory to emigration
to that foreign country, and other matters that do not involve
representation of clients in court; designing and installing computer
systems, programs, or software for the efficient management of law
offices, corporate legal departments, courts, and other entities engaged
in dispensing or administering legal services." 20
While some of the services being offered by respondent corporation
merely involve mechanical and technical know-how, such as the
installation of computer systems and programs for the efficient
management of law offices, or the computerization of research aids and
materials, these will not suffice to justify an exception to the general rule.
What is palpably clear is that respondent corporation gives out legal
information to laymen and lawyers. Its contention that such function is
non-advisory and non-diagnostic is more apparent than real. In providing
information, for example, about foreign laws on marriage, divorce and
adoption, it strains the credulity of this Court that all that respondent
corporation will simply do is look for the law, furnish a copy thereof to the
client, and stop there as if it were merely a bookstore. With its attorneys
and so called paralegals, it will necessarily have to explain to the client
the intricacies of the law and advise him or her on the proper course of
action to be taken as may be provided for by said law. That is what its
advertisements represent and for which services it will consequently
charge and be paid. That activity falls squarely within the jurisprudential
definition of "practice of law." Such a conclusion will not be altered by the
fact that respondent corporation does not represent clients in court since
law practice, as the weight of authority holds, is not limited merely to
court appearances but extends to legal research, giving legal advice,
contract drafting, and so forth.
The aforesaid conclusion is further strengthened by an article published
in the January 13, 1991 issue of the Starweek/The Sunday Magazine of
the Philippine Star, entitled "Rx for Legal Problems," where an insight
into the structure, main purpose and operations of respondent
corporation was given by its own "proprietor," Atty. Rogelio P. Nogales:
This is the kind of business that is transacted everyday at The Legal
Clinic, with offices on the seventh floor of the Victoria Building along U.N.
Avenue in Manila. No matter what the client's problem, and even if it is
as complicated as the Cuneta-Concepcion domestic situation, Atty.
Nogales and his staff of lawyers, who, like doctors, are "specialists" in
various fields, can take care of it. The Legal Clinic, Inc. has specialists in
taxation and criminal law, medico-legal problems, labor, litigation and
family law. These specialists are backed up by a battery of paralegals,
counsellors and attorneys.
Atty. Nogales set up The Legal Clinic in 1984. Inspired by the trend in
the medical field toward specialization, it caters to clients who cannot
afford the services of the big law firms.
The Legal Clinic has regular and walk-in clients. "When they come, we
start by analyzing the problem. That's what doctors do also. They ask
you how you contracted what's bothering you, they take your
temperature, they observe you for the symptoms, and so on. That's how
we operate, too. And once the problem has been categorized, then it's
referred to one of our specialists."
There are cases which do not, in medical terms, require surgery or
follow-up treatment. These The Legal Clinic disposes of in a matter of
minutes. "Things like preparing a simple deed of sale or an affidavit of
loss can be taken care of by our staff or, if this were a hospital, the
Page 89
residents or the interns. We can take care of these matters on a while
you wait basis. Again, kung baga sa ospital, out-patient, hindi kailangang
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LEGAL ETHICS
ma-confine. It's just like a common cold or diarrhea," explains Atty.
Nogales.
Those cases which require more extensive "treatment" are dealt with
accordingly. "If you had a rich relative who died and named you her sole
heir, and you stand to inherit millions of pesos of property, we would refer
you to a specialist in taxation. There would be real estate taxes and
arrears which would need to be put in order, and your relative is even
taxed by the state for the right to transfer her property, and only a
specialist in taxation would be properly trained to deal with that problem.
Now, if there were other heirs contesting your rich relative's will, then you
would need a litigator, who knows how to arrange the problem for
presentation in court, and gather evidence to support the case." 21
That fact that the corporation employs paralegals to carry out its services
is not controlling. What is important is that it is engaged in the practice of
law by virtue of the nature of the services it renders which thereby brings
it within the ambit of the statutory prohibitions against the advertisements
which it has caused to be published and are now assailed in this
proceeding. prcd
Further, as correctly and appropriately pointed out by the U.P. WILOCI,
said reported facts sufficiently establish that the main purpose of
respondent is to serve as a one-stop-shop of sorts for various legal
problems wherein a client may avail of legal services from simple
documentation to complex litigation and corporate undertakings. Most of
these services are undoubtedly beyond the domain of paralegals, but
rather, are exclusive functions of lawyers engaged in the practice of law.
22
It should be noted that in our jurisdiction the services being offered by
private respondent which constitute practice of law cannot be performed
by paralegals. Only a person duly admitted as a member of the bar, or
hereafter admitted as such in accordance with the provisions of the Rules
of Court, and who is in good and regular standing, is entitled to practice
law. 23
Public policy requires that the practice of law be limited to those
individuals found duly qualified in education and character. The
permissive right conferred on the lawyers is an individual and limited
privilege subject to 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. 24
The same rule is observed in the American jurisdiction where from
respondent would wish to draw support for his thesis. The doctrines there
also stress that the practice of law is limited to those who meet the
requirements for, and have been admitted to, the bar, and various
statutes or rules specifically so provide. 25 The practice of law is not a
lawful business except for members of the bar who have complied with
all the conditions required by statute and the rules of court. Only those
persons are allowed to practice law who, by reason of attainments
previously acquired through education and study, have been recognized
by the courts as possessing profound knowledge of legal science
entitling them to advise, counsel with, protect, or defend the rights,
claims, or liabilities of their clients, with respect to the construction,
interpretation, operation and effect of law. 26 The justification for
excluding from the practice of law those not admitted to the bar is found,
not in the protection of the bar from competition, but in the protection of
the public from being advised and represented in legal matters by
incompetent and unreliable persons over whom the judicial department
can exercise little control. 27
We have to necessarily and definitely reject respondent's position that
the concept in the United States of paralegals as an occupation separate
from the law profession be adopted in this jurisdiction. Whatever may be
its merits, respondent cannot but be aware that this should first be a
matter for judicial rules or legislative action, and not of unilateral adoption
as it has done.
Paralegals in the United States are trained professionals. As admitted by
respondent, there are schools and universities there which offer studies
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and degrees in paralegal education, while there are none in the
Philippines. 28 As the concept of the "paralegal" or "legal assistant"
evolved in the United States, standards and guidelines also evolved to
protect the general public. One of the major standards, or guidelines was
developed by the American Bar Association which set up Guidelines for
the Approval of Legal Assistant Education Programs (1973). Legislation
has even been proposed to certify legal assistants. There are also
associations of paralegals in the United States with their own code of
professional ethics, such as the National Association of Legal Assistants,
Inc. and the American Paralegal Association. 29
In the Philippines, we still have a restricted concept and limited
acceptance of what may be considered, as paralegal service. As pointed
out by FIDA, some persons not duly licensed to practice law are or have
been allowed limited representation in behalf of another or to render legal
services, but such allowable services are limited in scope and extent by
the law, rules or regulations granting permission therefor. 30
Accordingly, we have adopted the American judicial policy that, in the
absence of constitutional or statutory authority, a person who has not
been admitted as an attorney cannot practice law for the proper
administration of justice cannot be hindered by the unwarranted intrusion
of an unauthorized and unskilled person into the practice of law. 31
That policy should continue to be one of encouraging persons who are
unsure of their legal rights and remedies to seek legal assistance only
from persons licensed to practice law in the state. 32
Anent the issue on the validity of the questioned advertisements, the
Code of Professional Responsibility provides that a lawyer in making
known his legal services shall use only true, honest, fair, dignified and
objective information or statement of facts. 33 He is not supposed to
use or permit the use of any false, fraudulent, misleading, deceptive,
undignified, self-laudatory or unfair statement or claim regarding his
qualifications or legal services. 34 Nor shall he pay or give something of
value to representatives of the mass media in anticipation of, or in return
for, publicity to attract legal business. 35 Prior to the adoption of the
Code of Professional Responsibility, the Canons of Professional Ethics
had also warned that lawyers should not resort to indirect advertisements
for professional employment, such as furnishing or inspiring newspaper
comments, or procuring his photograph to be published in connection
with causes in which the lawyer has been or is engaged or concerning
the manner of their conduct, the magnitude of the interest involved, the
importance of the lawyer's position, and all other like self-laudation. 36
The standards of the legal profession condemn the lawyer's
advertisement of his talents. A lawyer cannot, without violating the ethics
of his profession, advertise his talents or skills as in a manner similar to
a merchant advertising his goods. 37 The proscription against
advertising of legal services or solicitation of legal business rests on the
fundamental postulate that the practice of law is a profession. Thus, in
the case of The Director of Religious Affairs vs. Estanislao R. Bavot 38
an advertisement, similar to those of respondent which are involved in
the present proceeding, 39 was held to constitute improper advertising
or solicitation.
The pertinent part of the decision therein reads:
It is undeniable that the advertisement in question was a flagrant violation
by the respondent of the ethics of his profession, it being a brazen
solicitation of business from the public. Section 25 of Rule 127 expressly
provides among other things that "the practice of soliciting cases at law
for the purpose of gain, either personally or thru paid agents or brokers,
constitutes malpractice." It is highly unethical for an attorney to advertise
his talents or skill as a merchant advertises his wares. Law is a
profession and not a trade. The lawyer degrades himself and his
profession who stoops to and adopts the practices of mercantilism by
advertising his services or offering them to the public. As a member of
the bar, he defiles the temple of justice with mercenary activities as the
money-changers of old defiled the temple of Jehovah. The most worthy
and effective advertisement possible, even for a young lawyer, . . . is the
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establishment of a well-merited reputation for professional capacity and
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LEGAL ETHICS
fidelity to trust. This cannot be forced but must be the outcome of
character and conduct." (Canon 27, Code of Ethics.)
We repeat, the canons of the profession tell us that the best advertising
possible for a lawyer is a well-merited reputation for professional
capacity and fidelity to trust, which must be earned as the outcome of
character and conduct. Good and efficient service to a client as well as
to the community has a way of publicizing itself and catching public
attention. That publicity is a normal by-product of effective service which
is right and proper. A good and reputable lawyer needs no artificial
stimulus to generate it and to magnify his success. He easily sees the
difference between a normal by-product of able service and the
unwholesome result of propaganda. 40
Of course, not all types of advertising or solicitation are prohibited. The
canons of the profession enumerate exceptions to the rule against
advertising or solicitation and define the extent to which they may be
undertaken. The exceptions are of two broad categories, namely, those
which are expressly allowed and those which are necessarily implied
from the restrictions. 41
The first of such exceptions is the publication in reputable law lists, in a
manner consistent with the standards of conduct imposed by the canons,
of brief biographical and informative data. "Such data must not be
misleading and may include only a statement of the lawyer's name and
the names of his professional associates; addresses, telephone
numbers, cable addresses; branches of law practiced; date and place of
birth and admission to the bar; schools attended with dates of graduation,
degrees and other educational distinction; public or quasi-public offices;
posts of honor; legal authorships; legal teaching positions; membership
and offices in bar associations and committees thereof, in legal and
scientific societies and legal fraternities; the fact of listings in other
reputable law lists; the names and addresses of references; and, with
their written consent, the names of clients regularly represented." 42
The law list must be a reputable law list published primarily for that
purpose; it cannot be a mere supplemental feature of a paper, magazine,
trade journal or periodical which is published principally for other
purposes. For that reason, a lawyer may not properly publish his brief
biographical and informative data in a daily paper, magazine, trade
journal or society program. Nor may a lawyer permit his name to be
published in a law list the conduct, management or contents of which are
calculated or likely to deceive or injure the public or the bar, or to lower
the dignity or standing of the profession. 43
The use of an ordinary simple professional card is also permitted. The
card may contain only a statement of his name, the name of the law firm
which he is connected with, address, telephone number and special
branch of law practiced. The publication of a simple announcement of
the opening of a law firm or of changes in the partnership, associates,
firm name or office address, being for the convenience of the profession,
is not objectionable. He may likewise have his name listed in a telephone
directory but not under a designation of special branch of law. 44
Verily, taking into consideration the nature and contents of the
advertisements for which respondent is being taken to task, which even
includes a quotation of the fees charged by said respondent corporation
for services rendered, we find and so hold that the time definitely do not
and conclusively cannot fall under any of the above-mentioned
exceptions.
The ruling in the case of Bates, et al. vs. State Bar of Arizona, 45 which
is repeatedly invoked and constitutes the justification relied upon by
respondent, is obviously not applicable to the case at bar. Foremost is
the fact that the disciplinary rule involved in said case explicitly allows a
lawyer, as an exception to the prohibition against advertisements by
lawyers, to publish a statement of legal fees for an initial consultation or
the availability upon request of a written schedule of fees or an estimate
of the fee to be charged for the specific services. No such exception is
provided for, expressly or impliedly, whether in our former Canons of
Professional Ethics or the present Code of Professional Responsibility.
Besides, even the disciplinary rule in the Bates case contains a proviso
that the exceptions stated therein are "not applicable in any state unless
PINEDAPCGRNMAN
and until it is implemented by such authority in that state." 46 This goes
to show that an exception to the general rule, such as that being invoked
by herein respondent, can be made only if and when the canons
expressly provide for such an exception. Otherwise, the prohibition
stands, as in the case at bar. LLpr
It bears mention that in a survey conducted by the American Bar
Association after the decision in Bates, on the attitude of the public about
lawyers after viewing television commercials, it was found that public
opinion dropped significantly 47 with respect to these characteristics of
lawyers:
Trustworthy from 71% to
14%
Professional from 71% to
14%
Honest from 65% to
14%
Dignified from 45% to
14%
Secondly, it is our firm belief that with the present situation of our legal
and judicial systems, to allow the publication of advertisements of the
kind used by respondent would only serve to aggravate what is already
a deteriorating public opinion of the legal profession whose integrity has
consistently been under attack lately by media and the community in
general. At this point in time, it is of utmost importance in the face of such
negative, even if unfair, criticisms at times, to adopt and maintain that
level of professional conduct which is beyond reproach, and to exert all
efforts to regain the high esteem formerly accorded to the legal
profession.
In sum, it is undoubtedly a misbehavior on the part of the lawyer, subject
to disciplinary action, to advertise his services except in allowable
instances 48 or to aid a layman in the unauthorized practice of law.
49 Considering that Atty. Rogelio P. Nogales, who is the prime
incorporator, major stockholder and proprietor of The Legal Clinic, Inc. is
a member of the Philippine Bar, he is hereby reprimanded, with a
warning that a repetition of the same or similar acts which are involved
in this proceeding will be dealt with more severely.
While we deem it necessary that the question as to the legality or
illegality of the purpose/s for which the Legal Clinic, Inc. was created
should be passed upon and determined, we are constrained to refrain
from lapsing into an obiter on that aspect since it is clearly not within the
adjudicative parameters of the present proceeding which is merely
administrative in nature. It is, of course, imperative that this matter be
promptly determined, albeit in a different proceeding and forum, since,
under the present state of our law and jurisprudence, a corporation
cannot be organized for or engage in the practice of law in this country.
This interdiction, just like the rule against unethical advertising, cannot
be subverted by employing some so-called paralegals supposedly
rendering the alleged support services. llcd
The remedy for the apparent breach of this prohibition by respondent is
the concern and province of the Solicitor General who can institute the
corresponding quo warranto action, 50 after due ascertainment of the
factual background and basis for the grant of respondent's corporate
charter, in light of the putative misuse thereof. That spin-off from the
instant bar matter is referred to the Solicitor General for such action as
may be necessary under the circumstances.
ACCORDINGLY, the Court Resolved to RESTRAIN and ENJOIN herein
respondent, The Legal Clinic, Inc., from issuing or causing the
publication or dissemination of any advertisement in any form which is of
the same or similar tenor and purpose as Annexes "A" and "B" of this
petition, and from conducting, directly or indirectly, any activity, operation
or transaction proscribed by law or the Code of Professional Ethics as
indicated herein. Let copies of this resolution be furnished the Integrated
Bar of the Philippines, the Office of the Bar Confidant and the Office of
the Solicitor General for appropriate action in accordance herewith.
Page 91
Narvasa, C .J ., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Davide, Jr.,
Romero, Nocon, Bellosillo, Melo and Quiason, JJ ., concur.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
March 23, 1929
In re LUIS B. TAGORDA,
Duran & Lim for respondent.
Attorney-General Jaranilla and Provincial Fiscal Jose for the
Government.
MALCOLM, J.:
The respondent, Luis B. Tagorda, a practising attorney and a member of
the provincial board of Isabela, admits that previous to the last general
elections he made use of a card written in Spanish and Ilocano, which,
in translation, reads as follows:
LUIS B. TAGORDA
Attorney
Notary Public
CANDIDATE FOR THIRD MEMBER
Province of Isabela
(NOTE. As notary public, he can execute for you a deed of sale for
the purchase of land as required by the cadastral office; can renew lost
documents of your animals; can make your application and final
requisites for your homestead; and can execute any kind of affidavit. As
a lawyer, he can help you collect your loans although long overdue, as
well as any complaint for or against you. Come or write to him in his town,
Echague, Isabela. He offers free consultation, and is willing to help and
serve the poor.)
The respondent further admits that he is the author of a letter addressed
to a lieutenant of barrio in his home municipality written in Ilocano, which
letter, in translation, reads as follows:
ECHAGUE, ISABELA, September 18, 1928
MY DEAR LIEUTENANT: I would like to inform you of the approaching
date for our induction into office as member of the Provincial Board, that
is on the 16th of next month. Before my induction into office I should be
very glad to hear your suggestions or recommendations for the good of
the province in general and for your barrio in particular. You can come to
my house at any time here in Echague, to submit to me any kind of
suggestion or recommendation as you may desire.
I also inform you that despite my membership in the Board I will have my
residence here in Echague. I will attend the session of the Board of
Ilagan, but will come back home on the following day here in Echague to
live and serve with you as a lawyer and notary public. Despite my
election as member of the Provincial Board, I will exercise my legal
profession as a lawyer and notary public. In case you cannot see me at
home on any week day, I assure you that you can always find me there
on every Sunday. I also inform you that I will receive any work regarding
preparations of documents of contract of sales and affidavits to be sworn
to before me as notary public even on Sundays.
I would like you all to be informed of this matter for the reason that some
people are in the belief that my residence as member of the Board will
be in Ilagan and that I would then be disqualified to exercise my
profession as lawyer and as notary public. Such is not the case and I
would make it clear that I am free to exercise my profession as formerly
and that I will have my residence here in Echague.
I would request you kind favor to transmit this information to your barrio
people in any of your meetings or social gatherings so that they may be
informed of my desire to live and to serve with you in my capacity as
lawyer and notary public. If the people in your locality have not as yet
contracted the services of other lawyers in connection with the
registration of their land titles, I would be willing to handle the work in
court and would charge only three pesos for every registration.
Yours respectfully,
(Sgd.) LUIS TAGORDA
Attorney
Notary Public.
The facts being conceded, it is next in order to write down the applicable
legal provisions. Section 21 of the Code of Civil Procedure as originally
conceived related to disbarments of members of the bar. In 1919 at the
instigation of the Philippine Bar Association, said codal section was
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amended by Act No. 2828 by adding at the end thereof the following:
"The practice of soliciting cases at law for the purpose of gain, either
personally or through paid agents or brokers, constitutes malpractice."
The statute as amended conforms in principle to the Canons of
Professionals Ethics adopted by the American Bar Association in 1908
and by the Philippine Bar Association in 1917. Canons 27 and 28 of the
Code of Ethics provide:
27. ADVERTISING, DIRECT OR INDIRECT. The most worthy and
effective advertisement possible, even for a young lawyer, and especially
with his brother lawyers, is the establishment of a well-merited reputation
for professional capacity and fidelity to trust. This cannot be forced, but
must be the outcome of character and conduct. The publication or
circulation of ordinary simple business cards, being a matter of personal
taste or local custom, and sometimes of convenience, is not per
se improper. But solicitation of business by circulars or advertisements,
or by personal communications or interview not warranted by personal
relations, is unprofessional. It is equally unprofessional to procure
business by indirection through touters of any kind, whether allied real
estate firms or trust companies advertising to secure the drawing of
deeds or wills or offering retainers in exchange for executorships or
trusteeships to be influenced by the lawyer. Indirect advertisement for
business by furnishing or inspiring newspaper comments concerning the
manner of their conduct, the magnitude of the interest involved, the
importance of the lawyer's position, and all other like self-laudation, defy
the traditions and lower the tone of our high calling, and are intolerable.
28. STIRRING UP LITIGATION, DIRECTLY OR THROUGH AGENTS.
It is unprofessional for a lawyer to volunteer advice to bring a lawsuit,
except in rare cases where ties of blood, relationship or trust make it his
duty to do so. Stirring up strife and litigation is not only unprofessional,
but it is indictable at common law. It is disreputable to hunt up defects in
titles or other causes of action and inform thereof in order to the
employed to bring suit, or to breed litigation by seeking out those with
claims for personal injuries or those having any other grounds of action
in order to secure them as clients, or to employ agents or runners for like
purposes, or to pay or reward directly or indirectly, those who bring or
influence the bringing of such cases to his office, or to remunerate
policemen, court or prison officials, physicians, hospital attaches or
others who may succeed, under the guise of giving disinterested friendly
advice, in influencing the criminal, the sick and the injured, the ignorant
or others, to seek his professional services. A duty to the public and to
the profession devolves upon every member of the bar having
knowledge of such practices upon the part of any practitioner
immediately to inform thereof to the end that the offender may be
disbarred.
Common barratry consisting of frequently stirring up suits and quarrels
between individuals was a crime at the common law, and one of the
penalties for this offense when committed by an attorney was
disbarment. Statutes intended to reach the same evil have been
provided in a number of jurisdictions usually at the instance of the bar
itself, and have been upheld as constitutional. The reason behind
statutes of this type is not difficult to discover. The law is a profession
and not a business. The lawyer may not seek or obtain employment by
himself or through others for to do so would be unprofessional.
(State vs. Rossman [1909], 53 Wash., 1; 17 Ann. Cas., 625;
Peoplevs. Mac Cabe [1893], 19 L. R. A., 231; 2 R. C. L., 1097.)
It becomes our duty to condemn in no uncertain terms the ugly practice
of solicitation of cases by lawyers. It is destructive of the honor of a great
profession. It lowers the standards of that profession. It works against
the confidence of the community in the integrity of the members of the
bar. It results in needless litigation and in incenting to strife otherwise
peacefully inclined citizens.
The solicitation of employment by an attorney is a ground for disbarment
or suspension. That should be distinctly understood.
Giving application of the law and the Canons of Ethics to the admitted
Page 92
facts, the respondent stands convicted of having solicited cases in
defiance of the law and those canons. Accordingly, the only remaining
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LEGAL ETHICS
duty of the court is to fix upon the action which should here be taken.
The provincial fiscal of Isabela, with whom joined the representative of
the Attorney-General in the oral presentation of the case, suggests that
the respondent be only reprimanded. We think that our action should go
further than this if only to reflect our attitude toward cases of this
character of which unfortunately the respondent's is only one. The
commission of offenses of this nature would amply justify permanent
elimination from the bar. But as mitigating, circumstances working in
favor of the respondent there are, first, his intimation that he was
unaware of the impropriety of his acts, second, his youth and
inexperience at the bar, and, third, his promise not to commit a similar
mistake in the future. A modest period of suspension would seem to fit
the case of the erring attorney. But it should be distinctly understood that
this result is reached in view of the considerations which have influenced
the court to the relatively lenient in this particular instance and should,
therefore, not be taken as indicating that future convictions of practice of
this kind will not be dealt with by disbarment.
In view of all the circumstances of this case, the judgment of the court is
that the respondent Luis B. Tagorda be and is hereby suspended from
the practice as an attorney-at-law for the period of one month from April
1, 1929,
Street, Johns, Romualdez, and Villa-Real, JJ., concur.
Johnson, J., reserves his vote.
Rule 3.02 In the choice of a firm name, no false, misleading, or
assumed name shall be used. The continued use of the name of a
deceased partner is permissible provided that the firm indicates in
all its communication that said partner is deceased.
Adm. Case No. 2131 May 10, 1985
ADRIANO E. DACANAY, complainant
vs.
BAKER & MCKENZIE and JUAN G. COLLAS JR., LUIS MA.
GUERRERO, VICENTE A. TORRES, RAFAEL E. EVANGELISTA, JR.,
ROMEO L. SALONGA, JOSE R. SANDEJAS, LUCAS M. NUNAG, J.
CLARO TESORO, NATIVIDAD B. KWAN and JOSE A.
CURAMMENG, JR., respondents.
Adriano E. Dacanay for and his own behalf.
Madrid, Cacho, Angeles, Dominguez & Pecson Law Office for
respondents.
AQUINO, J.:
Lawyer Adriano E. Dacanay, admitted to the bar in 1954, in his 1980
verified complaint, sought to enjoin Juan G. Collas, Jr. and nine other
lawyers from practising law under the name of Baker & McKenzie, a law
firm organized in Illinois.
In a letter dated November 16, 1979 respondent Vicente A. Torres, using
the letterhead of Baker & McKenzie, which contains the names of the ten
lawyers, asked Rosie Clurman for the release of 87 shares of Cathay
Products International, Inc. to H.E. Gabriel, a client.
Attorney Dacanay, in his reply dated December 7, 1979, denied any
liability of Clurman to Gabriel. He requested that he be informed whether
the lawyer of Gabriel is Baker & McKenzie "and if not, what is your
purpose in using the letterhead of another law office." Not having
received any reply, he filed the instant complaint.
We hold that Baker & McKenzie, being an alien law firm, cannot practice
law in the Philippines (Sec. 1, Rule 138, Rules of Court). As admitted by
the respondents in their memorandum, Baker & McKenzie is a
professional partnership organized in 1949 in Chicago, Illinois with
members and associates in 30 cities around the world. Respondents,
aside from being members of the Philippine bar, practising under the firm
name of Guerrero & Torres, are members or associates of Baker &
Mckenzie.
As pointed out by the Solicitor General, respondents' use of the firm
name Baker & McKenzie constitutes a representation that being
PINEDAPCGRNMAN
associated with the firm they could "render legal services of the highest
quality to multinational business enterprises and others engaged in
foreign trade and investment" (p. 3, respondents' memo). This is
unethical because Baker & McKenzie is not authorized to practise law
here. (See Ruben E. Agpalo, Legal Ethics, 1983 Ed., p. 115.)
WHEREFORE, the respondents are enjoined from practising law under
the firm name Baker & McKenzie.
SO ORDERED.
Rule 3.03 Where a partner accepts public office, he shall withdraw from
the firm and his name shall be dropped from the firm name unless the
law allows him to practice law concurrently.
Constitution Art 6 Section 14. No Senator or Member of the House of
Representatives may personally appear as counsel before any court of
justice or before the Electoral Tribunals, or quasi-judicial and other
administrative bodies. Neither shall he, directly or indirectly, be
interested financially in any contract with, or in any franchise or special
privilege granted by the Government, or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled
corporation, or its subsidiary, during his term of office. He shall not
intervene in any matter before any office of the Government for his
pecuniary benefit or where he may be called upon to act on account of
his office.
Constitution Art 7 SECTION 13. The President, Vice-President, the
Members of the Cabinet, and their deputies or assistants shall not,
unless otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said tenure,
directly or indirectly, practice any other profession, participate in any
business, or be financially interested in any contract with, or in any
franchise, or special privilege granted by the Government or any
subdivision, agency, or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries. They shall strictly
avoid conflict of interest in the conduct of their office.
The spouse and relatives by consanguinity or affinity within the fourth
civil degree of the President shall not during his tenure be appointed as
members of the Constitutional Commissions, or the Office of the
Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of
bureaus or offices, including government-owned or controlled
corporations and their subsidiaries.
Constitution Art 9 SECTION 2. No Member of a Constitutional
Commission shall, during his tenure, hold any other office or
employment. Neither shall he engage in the practice of any profession
or in the active management or control of any business which in any way
be affected by the functions of his office, nor shall he be financially
interested, directly or indirectly, in any contract with, or in any franchise
or privilege granted by the Government, any of its subdivisions,
agencies, or instrumentalities, including government-owned or controlled
corporations or their subsidiaries.
[A.M. No. P-99-1292. February 26, 1999]
JULIETA BORROMEO SAMONTE, complainant, vs. ATTY.
ROLANDO R. GATDULA, Branch Clerk of Court, respondent.
RESOLUTION
GONZAGA-REYES, J.:
The complaint filed by Julieta Borromeo Samonte charges Rolando R.
Gatdula, RTC, Branch 220, Quezon City with grave misconduct
consisting in the alleged engaging in the private practice of law which is
in conflict with his official functions as Branch Clerk of Court.
Complainant alleges that she is the authorized representative of her
sister Flor Borromeo de Leon, the plaintiff in Civil Case No. 37-14552 for
ejectment filed with the Metropolitan Trial Court of Quezon City, Branch
Page 93
37. A typographical error was committed in the complaint which stated
that the address of defendant is No. 63-C instead of 63-B, P. Tuazon
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Blvd., Cubao, Quezon City. The mistake was rectified by the filing of an
amended complaint which was admitted by the Court. A decision was
rendered in favor of the plaintiff who subsequently filed a motion for
execution. Complainant however, was surprised to receive a temporary
restraining order signed by Judge Prudencio Castillo of Branch 220,
RTC, Quezon City, where Atty. Rolando Gatdula is the Branch Clerk of
Court, enjoining the execution of the decision of the Metropolitan Trial
Court. Complainant alleges that the issuance of the temporary
restraining order was hasty and irregular as she was never notified of the
application for preliminary injunction.
Complainant further alleges that when she went to Branch 220, RTC,
Quezon City, to inquire about the reason for the issuance of the
temporary restraining order, respondent Atty. Rolando Gatdula, blamed
her lawyer for writing the wrong address in the complaint for ejectment
and told her that if she wanted the execution to proceed, she should
change her lawyer and retain the law office of respondent at the same
time giving his calling card with the name "Baligod, Gatdula, Tacardon,
Dimailig and Celera" with office at Rm. 220 Mariwasa Bldg., 717 Aurora
Blvd., Cubao, Quezon City; otherwise she will not be able to eject the
defendant Dave Knope. Complainant told respondent that she could not
decide because she was only representing her sister. To her
consternation, the RTC Branch 220 issued an order granting the
preliminary injunction as threatened by respondent despite the fact that
the MTC, Branch 37 had issued an Order directing the execution of the
Decision in Civil Case No. 37-14552.
Asked to comment, respondent Atty. Gatdula recited the antecedents in
the ejectment case and the issuance of the restraining order by the
Regional Trial Court, and claimed that contrary to complainant
Samonte's allegation that she was not notified of the raffle and the
hearing, the Notice of Hearing on the motion for the issuance of a
Temporary Restraining Order was duly served upon the parties, and that
the application for injunctive relief was heard before the temporary
restraining order was issued. The preliminary injunction was also set for
hearing on August 7, 1996.
The respondent's version of the incident is that sometime before the
hearing of the motion for the issuance of a temporary restraining order,
complainant Samonte went to court "very mad" because of the issuance
of the order stopping the execution of the decision in the ejectment
case. Respondent tried to calm her down, and assured her that the
restraining order was only temporary and that the application for
preliminary injunction would still be heard. Later the Regional Trial Court
granted the application for a writ of preliminary injunction. The
complainant went back to court "fuming mad" because of the alleged
unreasonableness of the court in issuing the injunction.
Respondent Gatdula claims that thereafter complainant returned to his
office, and informed him that she wanted to change counsel and that a
friend of hers recommended the Law Finn of "Baligod, Gatdula,
Tacardon, Dimailig and Celera," at the same time showing a calling card,
and asking if he could handle her case. Respondent refused as he was
not connected with the law firm, although he was invited to join but he
chose to remain in the judiciary. Complainant returned to court a few
days later and told him that if he cannot convince the judge to recall the
writ of preliminary injunction, she will file an administrative case against
respondent and the judge. The threat was repeated but the respondent
refused to be pressured. Meanwhile, the Complainant's Motion to
Dissolve the Writ of Preliminary Injunction was denied. Respondent
Gatdula claims that the complainant must have filed this administrative
charge because of her frustration in procuring the ejectment of the
defendant lessee from the premises. Respondent prays for the dismissal
of the complaint against him.
The case was referred to Executive Judge Estrella Estrada, RTC,
Quezon City, for investigation, report and recommendation.
In her report Judge Estrada states that the case was set for hearing three
times, on September 7, 1997, on September 17, and on September 24,
1997, but neither complainant nor her counsel appeared, despite due
notice. The return of service of the Order setting the last hearing stated
PINEDAPCGRNMAN
that complainant is still abroad. There being no definite time conveyed to
the court for the return of the complainant, the investigating Judge
proceeded with the investigation by "conducting searching questions"
upon respondent based on the allegations in the complaint and asked
for the record of Civil Case No. Q-96-28187 for evaluation. The case was
set for hearing for the last time on October 22, 1997, to give complainant
a last chance to appear, but there was again no appearance despite
notice.
The respondent testified in his own behalf to affirm the statements in his
Comment and submitted documentary evidence consisting mainly of the
pleadings in MTC Civil Case No. 37-14552, and in RTC Civil Case No.
Q96-28187 to show that the questioned orders of the court were not
improperly issued.
The investigating judge made the following findings:
"For failure of the complainant to appear at the several hearings despite
notice, she failed to substantiate her allegations in the complaint
particularly that herein respondent gave her his calling card and tried to
convince her to change her lawyer. This being the case, it cannot be
established with certainty that respondent indeed gave her his calling
card and even convinced her to change her lawyer. Moreover, as borne
by the records of Civil Case No. Q-96-28187, complainant was duly
notified of all the proceedings leading to the issuance of the TRO and
the subsequent orders of Judge Prudencio Altre Castillo, Jr. of RTC,
Branch 220. Complainant's lack of interest in prosecuting this
administrative case could be an indication that her filing of the charge
against the respondent is only intended to harass the respondent for her
failure to obtain a favorable decision from the Court.
However, based on the record of this administrative case, the calling card
attached as Annex "B" of complainant's affidavit dated September 25,
1996 allegedly given by respondent to complainant would show that the
name of herein respondent was indeed included in the BALIGOD,
GATDULA, TACARDON, DIMAILIG & CELERA LAW OFFICES. While
respondent denied having assumed any position in said office, the fact
remains that his name is included therein which may therefore tend to
show that he has dealings with said office. Thus, while he may not be
actually and directly employed with the firm, the fact that his name
appears on the calling card as a partner in the Baligod, Gatdula,
Tacardon, Dimailig & Celera Law Offices give the impression that he is
connected therein and may constitute an act of solicitation and private
practice which is declared unlawful under Republic Act No. 6713. It is to
be noted, however, that complainant failed to establish by convincing
evidence that respondent actually offered to her the services of their law
office. Thus, the violation committed by respondent in having his name
included/retained in the calling card may only be considered as a minor
infraction for which he must also be administratively sanctioned."
and recommended that Atty. Gatdula be admonished and censured for
the minor infraction he has committed.
Finding: We agree with the investigating judge that the respondent is
guilty of an infraction. The complainant by her failure to appear at the
hearings, failed to substantiate her allegation that it was the respondent
who gave her the calling card of "Baligod, Gatdula, Tacardon, Dimailig
and Celera Law Offices" and that he tried to convince her to change
counsels. We find however, that while the respondent vehemently
denies the complainant's allegations, he does not deny that his name
appears on the calling card attached to the complaint which admittedly
came into the hands of the complainant. The respondent testified before
the Investigating Judge as follows:
"Q: How about your statement that you even gave her a calling card of
the "Baligod, Gatdula, Pardo, Dimailig and Celera law Offices at Room
220 Mariwasa building?
A: I vehemently deny the allegation of the complainant that I gave her a
calling card. I was surprised when she presented (it) to me during one of
her follow-ups of the case before the court. She told me that a friend of
hers recommended such firm and she found out that my name is
Page 94
included in that firm. I told her that I have not assumed any position in
that law firm. And I am with the Judiciary. since I passed the bar. It is
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LEGAL ETHICS
impossible for me to enter an appearance as her counsel in the very
same court where I am the Branch Clerk of Court."
The above explanation tendered by the Respondent is an admission that
it is his name which appears on the calling card, a permissible form of
advertising or solicitation of legal services.[1] Respondent does not claim
that the calling card was printed without his knowledge or consent and
the calling card[2] carries his name primarily and the name of "Baligod,
Gatdula, Tacardon, Dimailig and Celera with address at 220 Mariwasa
Bldg., 717 Aurora Blvd., Cubao, Quezon City" in the left comer. The card
clearly gives the impression that he is connected with the said law
firm. The inclusion/retention of his name in the professional card
constitutes an act of solicitation which violates Section 7 sub-par. (b)(2)
of Republic Act No. 6713, otherwise known as "Code of Conduct and
Ethical Standards for Public Officials and Employees" which declares it
unlawful for a public official or employee to, among others:
"(2) Engage in the private practice of their profession unless authorized
by the Constitution or law, provided that such practice will not conflict or
tend to conflict with official functions."
Time and again this Court has said that the conduct and behavior of
every one connected with an office charged with the dispensation of
justice, from the presiding judge to the lowliest clerk. should be
circumscribed with the heavy burden of responsibility. His conduct, at all
times must not only be characterized by proprietor and decorum but
above all else must be above suspicion.[3]
WHEREFORE, respondent Rolando R. Gatdula. Branch Clerk of Court,
RTC, Branch 220, Quezon City is hereby reprimanded for engaging in
the private practice of law with the warning that a repetition of the same
offense will be dealt with more severely. He is further ordered to cause
the exclusion of his name in the firm name of any office engaged in the
private practice of law.
SO ORDERED.
Rule 3.04 A lawyer shall not pay or give anything of value to
representatives of the mass media in anticipation of, or in return
for, publicity to attract legal business.
It is unethical to use the name of a foreign firm.
Death of a partner does not extinguish attorney-client
relationship with the law firm.
Negligence of a member in the law firm is negligence of the
firm.
CANON 4 A lawyer shall participate in the improvement of the
legal system by initiating or supporting efforts in law reform and in
the administration of justice.
Examples: Presenting position papers or resolutions for the introduction
of pertinent bills in congress; Petitions with the Supreme Court for the
amendment of the Rules of Court.
CANON 5 A lawyer shall keep abreast of legal developments,
participate in continuing legal education programs, support efforts
to achieve high standards in law schools as well as in the practical
training of students and assist in disseminating information
regarding the law and jurisprudence.
Objectives of integration of the Bar
To elevate the standards of the legal profession
To improve the administration of justice
To enable the Bar to discharge its responsibility more
effectively.
The three-fold obligation of a lawyer
First, he owes it to himself to continue improving his
knowledge of the laws;
Second, he owes it to his profession to take an active interest
in the maintenance of high standards of legal education;
PINEDAPCGRNMAN
Third, he owes it to the lay public to make the law a part of
their social consciousness.
B.M. 850. October 2, 2001]
MANDATORY CONTINUING LEGAL EDUCATION
RESOLUTION
ADOPTING THE REVISED RULES ON THE CONTINUING LEGAL
EDUCATION FOR MEMBERS OF THE INTEGRATED BAR OF THE
PHILIPPINES
Considering the Rules on the Mandatory Continuing Legal Education
(MCLE) for members of the Integrated Bar of the Philippines (IBP),
recommended by the IBP, endorsed by the Philippine Judicial Academy,
and reviewed and passed upon by the Supreme Court Committee on
Legal Education, the Court hereby resolves to approve, as it hereby
approves, the following Revised Rules for proper implementation:
Rule 1. PURPOSE
SECTION 1. Purpose of the MCLE. Continuing legal education is
required of members of the Integrated Bar of the Philippines (IBP) to
ensure that throughout their career, they keep abreast with law and
jurisprudence, maintain the ethics of the profession and enhance the
standards of the practice of law.
Rule 2. MANDATORY CONTINUING LEGAL EDUCATION
SECTION 1. Commencement of the MCLE. Within two (2) months from
the approval of these Rules by the Supreme Court En Banc, the MCLE
Committee shall be constituted and shall commence the
implementation of the Mandatory Continuing Legal Education (MCLE)
program in accordance with these Rules.
SEC. 2. Requirements of completion of MCLE. Members of the IBP not
exempt under Rule 7 shall complete every three (3) years at least thirty-
six (36) hours of continuing legal education activities approved by the
MCLE Committee. Of the 36 hours:
(a) At least six (6) hours shall be devoted to legal ethics equivalent to
six (6) credit units.
(b) At least four (4) hours shall be devoted to trial and pretrial
skills equivalent to four (4) credit units.
(c) At least five (5) hours shall be devoted to alternative dispute
resolution equivalent to five (5) credit units.
(d) At least nine (9) hours shall be devoted to updates on substantive
and procedural laws, and jurisprudence equivalent to nine (9) credit
units.
(e) At least four (4) hours shall be devoted to legal writing and oral
advocacy equivalent to four (4) credit units.
(f) At least two (2) hours shall be devoted to international law and
international conventions equivalent to two (2) credit units.
(g) The remaining six (6) hours shall be devoted to such subjects as may
be prescribed by the MCLE Committee equivalent to six (6) credit
units.
Rule 3. COMPLIANCE PERIOD
SECTION 1. Initial compliance period. -- The initial compliance period
shall begin not later than three (3) months from the adoption of these
Rules. Except for the initial compliance period for members admitted or
readmitted after the establishment of the program, all compliance
periods shall be for thirty-six (36) months and shall begin the day after
the end of the previous compliance period.
SEC. 2. Compliance Groups. -- Members of the IBP not exempt from the
MCLE requirement shall be divided into three (3) compliance groups,
namely:
(a) Compliance group 1. -- Members in the National Capital Region
(NCR) or Metro Manila are assigned to Compliance Group 1.
(b) Compliance group 2. -- Members in Luzon outside NCR are assigned
to Compliance Group 2.
(c) Compliance group 3. -- Members in Visayas and Mindanao are
assigned to Compliance Group 3.
Nevertheless, members may participate in any legal education
Page 95
activity wherever it may be available to earn credit unit toward
compliance with the MCLE requirement.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
SEC. 3. Compliance period of members admitted or readmitted after
establishment of the program. Members admitted or readmitted to the
Bar after the establishment of the program shall be assigned to the
appropriate Compliance Group based on their Chapter membership on
the date of admission or readmission.
The initial compliance period after admission or readmission shall begin
on the first day of the month of admission or readmission and shall end
on the same day as that of all other members in the same Compliance
Group.
(a) Where four (4) months or less remain of the initial compliance period
after admission or readmission, the member is not required to comply
with the program requirement for the initial compliance.
(b) Where more than four (4) months remain of the initial compliance
period after admission or readmission, the member shall be required to
complete a number of hours of approved continuing legal education
activities equal to the number of months remaining in the compliance
period in which the member is admitted or readmitted. Such member
shall be required to complete a number of hours of education in legal
ethics in proportion to the number of months remaining in the compliance
period. Fractions of hours shall be rounded up to the next whole number.
Rule 4. COMPUTATION OF CREDIT UNITS(CU)
SECTION 1. Guidelines. - CREDIT UNITS ARE EQUIVALENT TO
CREDIT HOURS. CREDIT UNITS measure compliance with the
MCLE requirement under the Rules, based on the category of the
lawyers participation in the MCLE activity. The following are the
guidelines for computing credit units and the supporting
documents required therefor:
PROGRAMS/ACTIVITY CREDIT UNITS SUPPORTING DOCUMENTS
1. SEMINARS, CONVENTIONS, CONFERENCES, SYMPOSIA, IN-
HOUSE EDUCATION PROGRAMS, WORKSHOPS, DIALOGUES,
ROUND TABLE DISCUSSIONS BY APPROVED PROVIDERS UNDER
RULE 7 AND OTHER RELATED RULES
1.1 PARTICIPANT/ 1 CU PER HOUR OF CERTIFICATE OF
ATTENDEE ATTENDANCE ATTENDANCE WITH
NUMBER OF HOURS
1.2 LECTURER FULL CU FOR THE PHOTOCOPY OF
RESOURCE SUBJECT PER PLAQUE OR
SPEAKER COMPLIANCE PERIOD SPONSORS
CERTIFICATION
1.3 PANELIST/REACTOR 1/2 OF CU FOR THE CERTIFICATION
COMMENTATOR/ SUBJECT PER FROM
MODERATOR/ COMPLIANCE PERIOD SPONSORING
COORDINATOR/ ORGANIZATION
FACILITATOR
2. AUTHORSHIP, EDITING AND REVIEW
2.1 LAW BOOK OF NOT FULL CU FOR THE PUBLISHED BOOK
LESS THAN 100 PAGES SUBJECT PER
COMPLIANCE PERIOD
2.2 BOOK EDITOR 1/2 OF THE CU OF PUBLISHED BOOK
AUTHORSHIP CATEGORY WITH PROOF AS
EDITOR
2.3 RESEARCH PAPER 1/2 OF CU FOR THE DULY
INNOVATIVE PROGRAM/ SUBJECT PER CERTIFIED/
CREATIVE PROJECT COMPLIANCE PERIOD PUBLISHED
TECHNICAL
REPORT/PAPER
2.4 LEGAL ARTICLE OF AT 1/2 OF CU FOR THE PUBLISHED
ARTICLE
LEAST TEN (10) PAGES SUBJECT PER
COMPLIANCE PERIOD
2.5 LEGAL NEWSLETTER/ 1 CU PER ISSUE PUBLISHED
LAW JOURNAL EDITOR NEWSLETTER/JOURNAL
2.6 PROFESSORIAL CHAIR/ FULL CU FOR THE CERTIFICATION OF
BAR REVIEW LECTURE SUBJECT PER LAW DEAN OR
LAW TEACHING/ COMPLIANCE PERIOD BAR REVIEW
DIRECTOR
PINEDAPCGRNMAN
Rule 5. CATEGORIES OF CREDIT UNITS
SECTION 1. Classes of Credit units. -- Credit units are either
participatory or non-participatory.
SEC. 2. Claim for participatory credit units. -- Participatory
credit units may be claimed for:
(a) Attending approved education activities like seminars, conferences,
conventions, symposia, in-house education programs, workshops,
dialogues or round table discussion.
(b) Speaking or lecturing, or acting as assigned panelist, reactor,
commentator, resource speaker, moderator, coordinator or facilitator in
approved education activities.
(c) Teaching in a law school or lecturing in a bar review class.
SEC. 3. Claim for non-participatory credit units. Non-participatory
credit units may be claimed per compliance period for:
(a) Preparing, as an author or co-author, written materials published or
accepted for publication, e.g., in the form of an article, chapter, book, or
book review which contribute to the legal education of the author
member, which were not prepared in the ordinary course of the members
practice or employment.
(b) Editing a law book, law journal or legal newsletter.
Rule 6. COMPUTATION OF CREDIT HOURS (CH)
SECTION 1. Computation of credit hours. -- Credit hours are computed
based on actual time spent in an education activity in hours to the nearest
one-quarter hour reported in decimals.
Rule 7. EXEMPTIONS
SECTION 1. Parties exempted from the MCLE. -- The following
members of the Bar are exempt from the MCLE requirement:
(a) The President and the Vice President of the Philippines, and the
Secretaries and Undersecretaries of Executive Departments;
(b) Senators and Members of the House of Representatives;
(c) The Chief Justice and Associate Justices of the Supreme Court,
incumbent and retired members of the judiciary, incumbent members of
the Judicial and Bar Council and incumbent court lawyers covered by the
Philippine Judicial Academy program of continuing judicial education;
(d) The Chief State Counsel, Chief State Prosecutor and Assistant
Secretaries of the Department of Justice;
(e) The Solicitor General and the Assistant Solicitors General;
(f) The Government Corporate Counsel, Deputy and Assistant
Government Corporate Counsel;
(g) The Chairmen and Members of the Constitutional Commissions;
(h) The Ombudsman, the Overall Deputy Ombudsman, the Deputy
Ombudsman and the Special Prosecutor of the Office of the
Ombudsman;
(i) Heads of government agencies exercising quasi-judicial functions;
(j) Incumbent deans, bar reviewers and professors of law who have
teaching experience for at least ten (10) years in accredited law schools;
(k) The Chancellor, Vice-Chancellor and members of the Corps of
Professors and Professorial Lecturers of the Philippine Judicial
Academy; and
(l) Governors and Mayors.
SEC. 2. Other parties exempted from the MCLE. The following Members
of the Bar are likewise exempt:
(a) Those who are not in law practice, private or public.
(b) Those who have retired from law practice with the approval of the IBP
Board of Governors.
SEC. 3. Good cause for exemption from or modification of requirement A
member may file a verified request setting forth good cause for
exemption (such as physical disability, illness, post graduate study
abroad, proven expertise in law, etc.) from compliance with or
modification of any of the requirements, including an extension of time
for compliance, in accordance with a procedure to be established by the
MCLE Committee.
SEC. 4. Change of status. The compliance period shall begin on the first
day of the month in which a member ceases to be exempt under Sections
Page 96
1, 2, or 3 of this Rule and shall end on the same day as that of all other
members in the same Compliance Group.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
SEC. 5. Proof of exemption. Applications for exemption from or
modification of the MCLE requirement shall be under oath and supported
by documents.
Rule 8. STANDARDS FOR APPROVAL OF
EDUCATION ACTIVITIES
SECTION 1. Approval of MCLE program. Subject to the implementing
regulations that may be adopted by the MCLE Committee, continuing
legal education program may be granted approval in either of two (2)
ways: (1) the provider of the activity is an accredited provider and
certifies that the activity meets the criteria of Section 2 of this Rule; and
(2) the provider is specifically mandated by law to provide continuing
legal education.
SEC. 2. Standards for all education activities. All continuing legal
education activities must meet the following standards:
(a) The activity shall have significant current intellectual or practical
content.
(b) The activity shall constitute an organized program of learning related
to legal subjects and the legal profession, including cross profession
activities (e.g., accounting-tax or medical-legal) that enhance legal skills
or the ability to practice law, as well as subjects in legal writing and oral
advocacy.
(c) The activity shall be conducted by a provider with adequate
professional experience.
(d) Where the activity is more than one (1) hour in length, substantive
written materials must be distributed to all participants. Such materials
must be distributed at or before the time the activity is offered.
(e) In-house education activities must be scheduled at a time and
location so as to be free from interruption like telephone calls and other
distractions.
Rule 9. ACCREDITATION OF PROVIDERS
SECTION 1. Accreditation of providers. -- Accreditation of providers
shall be done by the MCLE Committee.
SEC. 2. Requirements for accreditation of providers. Any person or
group may be accredited as a provider for a term of two (2) years, which
may be renewed, upon written application. All providers of continuing
legal education activities, including in-house providers, are eligible to be
accredited providers. Application for accreditation shall:
(a) Be submitted on a form provided by the MCLE Committee;
(b) Contain all information requested in the form;
(c) Be accompanied by the appropriate approval fee.
SEC. 3. Requirements of all providers. -- All
approved accredited providers shall agree to the following:
(a) An official record verifying the attendance at the activity shall be
maintained by the provider for at least four (4) years after the completion
date. The provider shall include the member on the official record of
attendance only if the members signature was obtained at the time of
attendance at the activity. The official record of attendance shall contain
the members name and number in the Roll of Attorneys and shall identify
the time, date, location, subject matter, and length of the education
activity. A copy of such record shall be furnished the MCLE
COMMITTEE.
(b) The provider shall certify that:
(1) This activity has been approved BY THE MCLE COMMITTEE in the
amount of ________ hours of which ______ hours will apply in (legal
ethics, etc.), as appropriate to the content of the activity;
(2) The activity conforms to the standards for approved education
activities prescribed by these Rules and such regulations as may be
prescribed by the MCLE COMMITTEE.
(c) The provider shall issue a record or certificate to all participants
identifying the time, date, location, subject matter and length of the
activity.
(d) The provider shall allow in-person observation of all approved
continuing legal education activity by THE MCLE COMMITTEE,
members of the IBP Board of Governors, or designees of the Committee
and IBP staff Board for purposes of monitoring compliance with these
Rules.
PINEDAPCGRNMAN
(e) The provider shall indicate in promotional materials, the nature of the
activity, the time devoted to each topic and identity of the instructors. The
provider shall make available to each participant a copy of THE MCLE
COMMITTEE-approved Education Activity Evaluation Form.
(f) The provider shall maintain the completed Education Activity
Evaluation Forms for a period of not less than one (1) year after the
activity, copy furnished the MCLE COMMITTEE.
(g) Any person or group who conducts an unauthorized activity under
this program or issues a spurious certificate in violation of these Rules
shall be subject to appropriate sanctions.
SEC. 4. Renewal of provider accreditation. The accreditation of a
provider may be renewed every two (2) years. It may be denied if the
provider fails to comply with any of the requirements of these Rules or
fails to provide satisfactory education activities for the preceding period.
SEC. 5. Revocation of provider accreditation. -- the accreditation of
any provider referred to in Rule 9 may be revoked by a majority vote of
the MCLE Committee, after notice and hearing and for good cause.
Rule 10. FEE FOR APPROVAL OF ACTIVITY AND ACCREDITATION OF PROVIDER
SECTION 1. Payment of fees. Application for approval of an education
activity or accreditation as a provider requires payment of the appropriate
fee as provided in the Schedule of MCLE Fees.
Rule 11. GENERAL COMPLIANCE PROCEDURES
SECTION 1. Compliance card. -- Each member shall secure from the
MCLE Committee a Compliance Card before the end of his compliance
period. He shall complete the card by attesting under oath that he has
complied with the education requirement or that he is exempt, specifying
the nature of the exemption. Such Compliance Card must be returned to
the Committee not later than the day after the end of the members
compliance period.
SEC. 2. Member record keeping requirement. -- Each member shall
maintain sufficient record of compliance or exemption, copy furnished
the MCLE Committee. The record required to be provided to the
members by the provider pursuant to Section 3 of Rule 9 should be a
sufficient record of attendance at a participatory activity. A record of non-
participatory activity shall also be maintained by the member, as referred
to in Section 3 of Rule 5.
Rule 12. NON-COMPLIANCE PROCEDURES
SECTION 1. What constitutes non-compliance. The following shall
constitute non-compliance:
(a) Failure to complete the education requirement within the compliance
period;
(b) Failure to provide attestation of compliance or exemption;
(c) Failure to provide satisfactory evidence of compliance (including
evidence of exempt status) within the prescribed period;
(d) Failure to satisfy the education requirement and furnish evidence of
such compliance within sixty (60) days from receipt of non-compliance
notice;
(e) Failure to pay non-compliance fee within the prescribed period;
(f) Any other act or omission analogous to any of the foregoing or
intended to circumvent or evade compliance with the MCLE
requirements.
SEC. 2. Non-compliance notice and 60-day period to attain
compliance. -Members failing to comply will receive a Non-Compliance
Notice stating the specific deficiency and will be given sixty (60) days
from the date of notification to file a response clarifying the deficiency or
otherwise showing compliance with the requirements. Such notice shall
contain the following language near the beginning of the notice in capital
letters:
IF YOU FAIL TO PROVIDE ADEQUATE PROOF OF COMPLIANCE
WITH THE MCLE REQUIREMENT BY (INSERT DATE 60 DAYS FROM
DATE OF NOTICE), YOU SHALL BE LISTED AS A DELINQUENT
MEMBER AND SHALL NOT BE PERMITTED TO PRACTICE LAW
UNTIL SUCH TIME AS ADEQUATE PROOF OF COMPLIANCE IS
RECEIVED BY THE MCLE COMMITTEE.
Page 97
Members given sixty (60) days to respond to a Non-Compliance Notice
may use this period to attain the adequate number of credit units for
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
compliance. Credit units earned during this period may only be counted
toward compliance with the prior compliance period requirement
unless units in excess of the requirement are earned, in which case the
excess may be counted toward meeting the current compliance period
requirement.
Rule 13. CONSEQUENCES OF NON-COMPLIANCE
SECTION 1. Non-compliance fee. -- A member who, for whatever
reason, is in non-compliance at the end of the compliance period shall
pay a non-compliance fee.
SEC. 2. Listing as delinquent member. -- A member who fails to comply
with the requirements after the sixty (60) day period for compliance has
expired, shall be listed as a delinquent member of the IBP upon the
recommendation of the MCLE Committee. The investigation of a
member for non-compliance shall be conducted by the IBPs Commission
on Bar Discipline as a fact-finding arm of the MCLE Committee.
SEC. 3. Accrual of membership fee. -- Membership fees shall continue
to accrue at the active rate against a member during the period he/she
is listed as a delinquent member.
Rule 14. REINSTATEMENT
SECTION 1. Process. -- The involuntary listing as a delinquent member
shall be terminated when the member provides proof of compliance with
the MCLE requirement, including payment of non-compliance fee. A
member may attain the necessary credit units to meet the requirement
for the period of non-compliance during the period the member is on
inactive status. These credit units may not be counted toward meeting
the current compliance period requirement. Credit units earned during
the period of non-compliance in excess of the number needed to satisfy
the prior compliance period requirement may be counted toward meeting
the current compliance period requirement.
SEC. 2. Termination of delinquent listing is an administrative
process. The termination of listing as a delinquent member is
administrative in nature AND it shall be made by the MCLE Committee.
Rule. 15. COMMITTEE ON MANDATORY CONTINUING
LEGAL EDUCATION
SECTION 1. Composition. The MCLE Committee shall be composed of
five (5) members, namely, a retired Justice of the Supreme Court as
Chair, and four (4) members respectively nominated by the IBP, the
Philippine Judicial Academy, a law center designated by the Supreme
Court and associations of law schools and/or law professors.
The members of the Committee shall be of proven probity and integrity.
They shall be appointed by the Supreme Court for a term of three (3)
years and shall receive such compensation as may be determined by
the Court.
SEC. 2. Duty of committee. The MCLE Committee shall administer and
adopt such implementing rules as may be necessary subject to the
approval of the Supreme Court. It shall, in consultation with the IBP
Board of Governors, prescribe a schedule of MCLE fees with the
approval of the Supreme Court.
SEC. 3. Staff of the MCLE Committee. Subject to approval by the
Supreme Court, the MCLE Committee shall employ such staff as may
be necessary to perform the record-keeping, auditing, reporting,
approval and other necessary functions.
SEC. 4. Submission of annual budget. The MCLE Committee shall
submit to the Supreme Court for approval, an annual budget [for a
subsidy] to establish, operate and maintain the MCLE Program.
This resolution shall take effect on the fifteenth of September 2000,
following its publication in two (2) newspapers of general circulation in
the Philippines.
Adopted this 22nd day of August, 2000, as amended on 02 October
2001.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban,
Quisumbing, Pardo, Buena, Ynares-Santiago, De Leon,
Jr., and Sandoval-Gutierrez, JJ., concur.
Kapunan, J., on official leave.
PINEDAPCGRNMAN
CANON 6 These canons shall apply to lawyers in government
service in the discharge of their official tasks.
Public Officials include elective and appointive officials and
employees, permanent or temporary, whether in the career or
non-career service, including military and police personnel,
whether or not they receive compensation, regardless of
amount. (Sec. 3 (b), RA 6713).
The law requires the observance of the following norms of
conduct by every public official in the discharge and execution
of their official duties:
1. commitment to public interest
2. professionalism
3. justness and sincerity
4. political neutrality
5. responsiveness to the public
6. nationalism and patriotism
7. commitment to democracy
8. simple living (Sec. 4, RA 6713)
A.C. No. 3056 August 16, 1991
FERNANDO T. COLLANTES, complainant,
vs.
ATTY. VICENTE C. RENOMERON respondent.
PER CURIAM:p
This complaint for disbarment is related to the administrative case which
complainant Attorney Fernando T. Collantes, house counsel for V & G
Better Homes Subdivision, Inc. (V & G for short), filed against Attorney
Vicente C. Renomeron, Register of Deeds of Tacloban City, for the
latter's irregular actuations with regard to the application of V & G for
registration of 163 pro forma Deeds of Absolute Sale with Assignment of
lots in its subdivision. The present complaint charges the respondent
with the following offenses:
1. Neglecting or refusing inspite (sic) repeated requests and without
sufficient justification, to act within reasonable time (sic) the registration
of 163 Deeds of Absolute Sale with Assignment and the eventual
issuance and transfer of the corresponding 163 transfer certificates of
titles to the GSIS, for the purpose of obtaining some pecuniary or
material benefit from the person or persons interested therein.
2. Conduct unbecoming of public official.
3. Dishonesty.
4. Extortion.
5. Directly receiving pecuniary or material benefit for himself in
connection with pending official transaction before him.
6. Causing undue injury to a party, the GSIS [or] Government through
manifest partiality, evident bad faith or gross inexcusable negligence.
7. Gross ignorance of the law and procedure. (p. 10, Rollo.)
As early as January 15, 1987, V & G had requested the respondent
Register of Deeds to register some 163 deeds of sale with assignment
(in favor of the GSIS) of lots of the V & G mortgaged to GSIS by the lot
buyers. There was no action from the respondent.
Another request was made on February 16, 1987 for him to approve or
Page 98
deny registration of the uniform deeds of absolute sale with assignment.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Still no action except to require V & G to submit proof of real estate tax
payment and to clarify certain details about the transactions.
Although V & G complied with the desired requirements, respondent
Renomeron suspended the registration of the documents pending
compliance by V & G with a certain "special arrangement" between them,
which was that V & G should provide him with a weekly round trip ticket
from Tacloban to Manila plus P2,000.00 as pocket money per trip, or, in
lieu thereof, the sale of respondent's Quezon City house and lot by V &
G or GSIS representatives.
On May 19, 1987, respondent confided to the complainant that he would
act favorably on the 163 registrable documents of V & G if the latter
would execute clarificatory affidavits and send money for a round trip
plane ticket for him.
The plane fare amounting to P800 (without the pocket money of P2,000)
was sent to respondent through his niece.
Because of V & G's failure to give him pocket money in addition to plane
fare, respondent imposed additional registration requirements. Fed up
with the respondent's extortionate tactics, the complainant wrote him a
letter on May 20, 1987 challenging him to act on all pending applications
for registration of V & G within twenty-four (24) hours.
On May 22, 1987, respondent formally denied registration of the transfer
of 163 certificates of title to the GSIS on the uniform ground that the
deeds of absolute sale with assignment were ambiguous as to parties
and subject matter. On May 26, 1987, Attorney Collantes moved for a
reconsideration of said denial, stressing that:
... since the year 1973 continuously up to December 1986 for a period of
nearly fifteen (15) years or for a sum total of more than 2,000 same set
of documents which have been repeatedly and uniformly registered in
the Office of the Register of Deeds of Tacloban City under Attys.
Modesto Garcia and Pablo Amascual Jr., it is only during the incumbency
of Atty. Vicente C. Renomeron, that the very same documents of the
same tenor have been refused or denied registration ... (p. 15, Rollo.)
On May 27, 1987, respondent elevated the matter en consulta to the
Administrator, National Land Titles and Deeds Registration
Administration (NLTDRA) (now the Land Registration Authority [LRA]).
In a Resolution dated July 27,1987 (Consulta No. 1579), the NLTDRA
ruled that the questioned documents were registrable. Heedless of the
NLTDRA's opinion, respondent continued to sit on V & Gs 163 deeds of
sale with assignment.
Exasperated by respondent's conduct, the complainant filed with the
NLTDRA on June 4, 1987 administrative charges (docketed as Adm.
Case No. 87-15), against respondent Register of Deeds.
Upon receipt of the charges, NLTDRA Administrator Teodoro G.
Bonifacio directed respondent to explain in writing why no administrative
disciplinary action should be taken against him. Respondent was further
asked whether he would submit his case on the basis of his answer, or
be heard in a formal investigation.
In his answer dated July 9, 1987, respondent denied the charges of
extortion and of directly receiving pecuniary or material benefit for
himself in connection with the official transactions awaiting his action.
Although an investigator was appointed by NLTDRA Administrator
Bonifacio to hear Attorney Collantes' charges against him, Attorney
Renomeron waived his right to a formal investigation. Both parties
submitted the case for resolution based on the pleadings.
PINEDAPCGRNMAN
The investigator, Attorney Leonardo Da Jose, recommended dropping
the charges of: (1) dishonesty; (2) causing undue injury to a party through
manifest partiality, evident bad faith or gross inexcusable negligence;
and (3) gross ignorance of the law and procedure. He opined that the
charge of neglecting or refusing, in spite repeated requests and without
sufficient justification, to act within a reasonable time on the registration
of the documents involved, in order to extort some pecuniary or material
benefit from the interested party, absorbed the charges of conduct
unbecoming of a public official, extortion, and directly receiving some
pecuniary or material benefit for himself in connection with pending
official transactions before him.
Brushing aside the investigator's recommendation, NLTDRA
Administrator Teodoro G. Bonifacio on February 22, 1988,
recommended to Secretary of Justice Sedfrey A. Ordoez that the
respondent: (1) be found guilty of simple neglect of duty: (2) be
reprimanded to act with dispatch on documents presented to him for
registration; and (3) be warned that a repetition of similar infraction will
be dealt with more severely.
After due investigation of the charges, Secretary Ordoez found
respondent guilty of grave misconduct.
Our study and consideration of the records of the case indicate that
ample evidence supports the Investigating Officer's findings that the
respondent committed grave misconduct.
The respondent unreasonably delayed action on the documents
presented to him for registration and, notwithstanding representations by
the parties interested for expeditious action on the said documents, he
continued with his inaction.
The records indicate that the respondent eventually formally denied the
registration of the documents involved; that he himself elevated the
question on the registrability of the said documents to Administrator
Bonifacio after he formally denied the registration thereof, that the
Administrator then resolved in favor of the registrability of the said
documents in question; and that, such resolution of the Administrator
notwithstanding, the respondent still refused the registration thereof but
demanded from the parties interested the submission of additional
requirements not adverted to in his previous denial.
xxx xxx xxx
In relation to the alleged 'special arrangement,' although the respondent
claims that he neither touched nor received the money sent to him, on
record remains uncontroverted the circumstance that his niece, Ms. de
la Cruz, retrieved from him the amount of P800.00 earlier sent to him as
plane fare, not in the original denomination of P100.00 bills but in P50.00
bills. The respondent had ample opportunity to clarify or to countervail
this related incident in his letter dated 5 September 1987 to Administrator
Bonifacio but he never did so.
... We believe that, in this case, the respondent's being new in office
cannot serve to mitigate his liability. His being so should have motivated
him to be more aware of applicable laws, rules and regulations and
should have prompted him to do his best in the discharge of his duties.
(pp. 17-18, Rollo.)
Secretary Ordoez recommended to President Corazon C. Aquino that
Renomeron be dismissed from the service, with forfeiture of leave credits
and retirement benefits, and with prejudice to re-employment in the
government service, effective immediately.
Page 99
Intelligentia et Scientia Semper Mea
LEGAL ETHICS PINEDAPCGRNMAN
As recommended by the Secretary of Justice, the President of the the practice of his calling" (Court Administrator vs. Hermoso, 150 SCRA
Philippines, by Adm. Order No. 165 dated May 3, 1990, dismissed the 269, 278).
respondent from the government service (pp. 1419, Rollo).
The acts of dishonesty and oppression which Attorney Renomeron
Less than two weeks after filing his complaint against Renomeron in the committed as a public official have demonstrated his unfitness to practice
NLTDRA, Attorney Collantes also filed in this Court on June 16, 1987, a the high and noble calling of the law (Bautista vs. Judge Guevarra, 142
disbarment complaint against said respondent. SCRA 632; Court Administrator vs. Rodolfo G. Hermoso, 150 SCRA
269). He should therefore be disbarred.
The issue in this disbarment proceeding is whether the respondent
register of deeds, as a lawyer, may also be disciplined by this Court for WHEREFORE, it is hereby ordered that Attorney Vicente C. Renomeron
his malfeasances as a public official. The answer is yes, for his be disbarred from the practice of law in the Philippines, and that his name
misconduct as a public official also constituted a violation of his oath as be stricken off the Roll of Attorneys
a lawyer.
SO ORDERED.
The lawyer's oath (Rule 138, Section 17, Rules of Court; People vs. De
Luna, 102 Phil. 968), imposes upon every lawyer the duty to delay no DIANA RAMOS, A. C. No. 6788
man for money or malice. The lawyer's oath is a source of his obligations Complainant, (Formerly, CBD 382)
and its violation is a ground for his suspension, disbarment or other
disciplinary action (Legal Ethics, Ruben E. Agpalo, 1983 Edition, pp. 66-
67). -versus-

As the late Chief Justice Fred Ruiz Castro said: ATTY. JOSE R. IMBANG,
Respondent. Promulgated:
A person takes an oath when he is admitted to the Bar which is designed
to impress upon him his responsibilities. He thereby becomes an "officer August 23, 2007
of the court" on whose shoulders rests the grave responsibility of
assisting the courts in the proper, fair, speedy, and efficient
administration of justice. As an officer of the court he is subject to a rigid x---------------------------------------------------
discipline that demands that in his every exertion the only criterion he x
that truth and justice triumph. This discipline is what has given the law
profession its nobility, its prestige, its exalted place. From a lawyer, to RESOLUTION
paraphrase Justice Felix Frankfurter, are expected those qualities of
truth-speaking, a high sense of honor, full candor, intellectual honesty,
PER CURIAM:
and the strictest observance of fiduciary responsibility all of which,
throughout the centuries, have been compendiously described as moral
character.
This is a complaint for disbarment or suspension[1] against Atty. Jose R.
Imbang for multiple violations of the Code of Professional Responsibility.
Membership in the Bar is in the category of a mandate to public service
of the highest order. A lawyer is an oath-bound servant of society whose
THE COMPLAINT
conduct is clearly circumscribed by inflexible norms of law and ethics,
and whose primary duty is the advancement of the quest of truth and
In 1992, the complainant Diana Ramos sought the assistance of
justice, for which he has sworn to be a fearless crusader. (Apostacy in
respondent Atty. Jose R. Imbang in filing civil and criminal actions
the Legal Profession, 64 SCRA 784, 789- 790; emphasis supplied.)
against the spouses Roque and Elenita Jovellanos.[2] She gave
respondent P8,500 as attorney's fees but the latter issued a receipt
The Code of Professional Responsibility applies to lawyers in
for P5,000 only.[3]
government service in the discharge of their official tasks (Canon 6). Just
as the Code of Conduct and Ethical Standards for Public Officials
The complainant tried to attend the scheduled hearings of her cases
requires public officials and employees to process documents and
against the Jovellanoses. Oddly, respondent never allowed her to enter
papers expeditiously (Sec. 5, subpars. [c] and [d] and prohibits them from
the courtroom and always told her to wait outside. He would then come
directly or indirectly having a financial or material interest in any
out after several hours to inform her that the hearing had been cancelled
transaction requiring the approval of their office, and likewise bars them
and rescheduled.[4] This happened six times and for each appearance in
from soliciting gifts or anything of monetary value in the course of any
court, respondent charged her P350.
transaction which may be affected by the functions of their office (See.
7, subpars. [a] and [d]), the Code of Professional Responsibility forbids
After six consecutive postponements, the complainant became
a lawyer to engage in unlawful, dishonest, immoral or deceitful conduct
suspicious. She personally inquired about the status of her cases in the
(Rule 1.01, Code of Professional Responsibility), or delay any man's
trial courts of Bian and San Pedro, Laguna. She was shocked to learn
cause "for any corrupt motive or interest" (Rule 103).
that respondent never filed any case against the Jovellanoses and that
he was in fact employed in the Public Attorney's Office (PAO).[5]
A lawyer shall not engage in conduct that adversely reflects on his fitness
to practice law, nor shall he, whether in public or private life, behave in a
scandalous manner to the discredit of the legal profession. (Rule 7.03,
RESPONDENT'S DEFENSE
Code of Professional Responsibility.)
According to respondent, the complainant knew that he was in the
government service from the very start. In fact, he first met the
Page 100

This Court has ordered that only those who are "competent, honorable,
complainant when he was still a district attorney in the Citizen's Legal
and reliable" may practice the profession of law (Noriega vs. Sison, 125
SCRA 293) for every lawyer must pursue "only the highest standards in

Intelligentia et Scientia Semper Mea

LEGAL ETHICS
Assistance Office (predecessor of PAO) of Bian, Laguna and was
assigned as counsel for the complainant's daughter.[6]
In 1992, the complainant requested him to help her file an action for
damages against the Jovellanoses.[7] Because he was with the PAO and
aware that the complainant was not an indigent, he
declined.[8] Nevertheless, he advised the complainant to consult Atty.
Tim Ungson, a relative who was a private practitioner.[9] Atty. Ungson,
however, did not accept the complainant's case as she was unable to
come up with the acceptance fee agreed upon.[10] Notwithstanding Atty.
Ungson's refusal, the complainant allegedly remained adamant. She
insisted on suing the Jovellanoses. Afraid that she might spend the cash
on hand, the complainant asked respondent to keep the P5,000 while
she raised the balance of Atty. Ungson's acceptance fee.[11]
A year later, the complainant requested respondent to issue an
antedated receipt because one of her daughters asked her to account
for the P5,000 she had previously given the respondent for
safekeeping.[12] Because the complainant was a friend, he agreed and
issued a receipt dated July 15, 1992.[13]
On April 15, 1994, respondent resigned from the PAO.[14] A few months
later or in September 1994, the complainant again asked respondent to
assist her in suing the Jovellanoses. Inasmuch as he was now a private
practitioner, respondent agreed to prepare the complaint. However, he
was unable to finalize it as he lost contact with the complainant.[15]
RECOMMENDATION OF THE IBP
Acting on the complaint, the Commission on Bar Discipline (CBD) of the
Integrated Bar of the Philippines (IBP) where the complaint was filed,
received evidence from the parties. On November 22, 2004, the CBD
submitted its report and recommendation to the IBP Board of
Governors.[16]
The CBD noted that the receipt[17] was issued on July 15, 1992 when
respondent was still with the PAO.[18] It also noted that respondent
described the complainant as a shrewd businesswoman and that
respondent was a seasoned trial lawyer. For these reasons, the
complainant would not have accepted a spurious receipt nor would
respondent have issued one. The CBD rejected respondent's claim that
he issued the receipt to accommodate a friend's request. [19] It found
respondent guilty of violating the prohibitions on government lawyers
from accepting private cases and receiving lawyer's fees other than their
salaries.[20] The CBD concluded that respondent violated the following
provisions of the Code of Professional Responsibility:
Rule 1.01. A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct.
Rule 16.01. A lawyer shall account for all money or property collected or
received for or from a client.
Rule 18.01. A lawyer should not undertake a legal service which he
knows or should know that he is not qualified to render. However, he may
render such service if, with the consent of his client, he can obtain as
collaborating counsel a lawyer who is competent on the matter.
Thus, it recommended respondent's suspension from the practice of law
for three years and ordered him to immediately return to the complainant
the amount of P5,000 which was substantiated by the receipt.[21]
The IBP Board of Governors adopted and approved the findings of the
CBD that respondent violated Rules 1.01, 16.01 and 18.01 of the Code
PINEDAPCGRNMAN
of Professional Responsibility. It, however, modified the CBD's
recommendation with regard to the restitution of P5,000 by imposing
interest at the legal rate, reckoned from 1995 or, in case of respondent's
failure to return the total amount, an additional suspension of six
months.[22]
THE COURT'S RULING
We adopt the findings of the IBP with modifications.
Lawyers are expected to conduct themselves with honesty and
integrity.[23] More specifically, lawyers in government service are
expected to be more conscientious of their actuations as they are subject
to public scrutiny. They are not only members of the bar but also public
servants who owe utmost fidelity to public service.[24]
Government employees are expected to devote themselves completely
to public service. For this reason, the private practice of profession is
prohibited. Section 7(b)(2) of the Code of Ethical Standards for Public
Officials and Employees provides:
Section 7. Prohibited Acts and Transactions. -- In addition to acts and
omissions of public officials and employees now prescribed in the
Constitution and existing laws, the following constitute prohibited acts
and transactions of any public official and employee and are hereby
declared unlawful:
xxx xxx xxx
(b) Outside employment and other activities related thereto, public
officials and employees during their incumbency shall not:
xxx xxx xxx
(1) Engage in the private practice of profession unless authorized by the
Constitution or law, provided that such practice will not conflict with their
official function.[25]
Thus, lawyers in government service cannot handle private cases for
they are expected to devote themselves full-time to the work of their
respective offices.
In this instance, respondent received P5,000 from the complainant and
issued a receipt on July 15, 1992 while he was still connected with the
PAO. Acceptance of money from a client establishes an attorney-client
relationship.[26] Respondent's admission that he accepted money from
the complainant and the receipt confirmed the presence of an attorney-
client relationship between him and the complainant. Moreover, the
receipt showed that he accepted the complainant's case while he was
still a government lawyer. Respondent clearly violated the prohibition on
private practice of profession.
Aggravating respondent's wrongdoing was his receipt of attorney's fees.
The PAO was created for the purpose of providing free legal assistance
to indigent litigants.[27] Section 14(3), Chapter 5, Title III, Book V of the
Revised Administrative Code provides:
Sec. 14. xxx
The PAO shall be the principal law office of the Government in extending
free legal assistance to indigent persons in criminal, civil, labor,
Page 101
administrative and other quasi-judicial cases.[28]
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
As a PAO lawyer, respondent should not have accepted attorney's fees
from the complainant as this was inconsistent with the office's
mission.[29] Respondent violated the prohibition against accepting legal
fees other than his salary.
Canon 1 of the Code of Professional Responsibility provides:
CANON 1. A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY
THE LAWS OF THE LAND AND PROMOTE RESPECT FOR THE LAW
AND LEGAL PROCESSES.
Every lawyer is obligated to uphold the law.[30] This undertaking includes
the observance of the above-mentioned prohibitions blatantly violated by
respondent when he accepted the complainant's cases and received
attorney's fees in consideration of his legal services. Consequently,
respondent's acceptance of the cases was also a breach of Rule 18.01
of the Code of Professional Responsibility because the prohibition on the
private practice of profession disqualified him from acting as the
complainant's counsel.
Aside from disregarding the prohibitions against handling private cases
and accepting attorney's fees, respondent also surreptitiously deceived
the complainant. Not only did he fail to file a complaint against the
Jovellanoses (which in the first place he should not have done),
respondent also led the complainant to believe that he really filed an
action against the Jovellanoses. He even made it appear that the cases
were being tried and asked the complainant to pay his appearance fees
for hearings that never took place. These acts constituted dishonesty, a
violation of the lawyer's oath not to do any falsehood.[31]
Respondent's conduct in office fell short of the integrity and good moral
character required of all lawyers, specially one occupying a public office.
Lawyers in public office are expected not only to refrain from any act or
omission which tend to lessen the trust and confidence of the citizenry in
government but also uphold the dignity of the legal profession at all times
and observe a high standard of honesty and fair dealing. A government
lawyer is a keeper of public faith and is burdened with a high degree of
social responsibility, higher than his brethren in private practice.[32]
There is, however, insufficient basis to find respondent guilty of violating
Rule 16.01 of the Code of Professional Responsibility. Respondent did
not hold the money for the benefit of the complainant but accepted it as
his attorney's fees. He neither held the amount in trust for the
complainant (such as an amount delivered by the sheriff in satisfaction
of a judgment obligation in favor of the client)[33] nor was it given to him
for a specific purpose (such as amounts given for filing fees and bail
bond).[34] Nevertheless, respondent should return the P5,000 as he, a
government lawyer, was not entitled to attorney's fees and not allowed
to accept them.[35]
WHEREFORE, Atty. Jose R. Imbang is found guilty of violating the
lawyers oath, Canon 1, Rule 1.01 and Canon 18, Rule 18.01 of the Code
of Professional Responsibility. Accordingly, he is
hereby DISBARRED from the practice of law and his name
is ORDERED STRICKEN from the Roll of Attorneys. He is also ordered
to return to complainant the amount of P5,000 with interest at the legal
rate, reckoned from 1995, within 10 days from receipt of this resolution.
Let a copy of this resolution be attached to the personal records of
respondent in the Office of the Bar Confidant and notice of the same be
served on the Integrated Bar of the Philippines and on the Office of the
Court Administrator for circulation to all courts in the country.
Rule 6.01 The primary duty of a lawyer engaged in public
prosecution is not to convict but to see that justice is done. The
suppression of facts or the concealment of witnesses capable of
PINEDAPCGRNMAN
establishing the innocence of the accused is highly reprehensible
and is cause of disciplinary action.
G.R. No. 109870 December 1, 1995
EDILBERTO M. CUENCA, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
RESOLUTION
FRANCISCO, J.:
After his petition for review of the Court of Appeals' judgment 1 affirming
his conviction for violation of the "Trust Receipts Law" (Presidential
Decree No. 115) was denied by this Court in a Resolution dated February
9, 1994, 2 petitioner filed on July 6, 1994 a pleading entitled
"SUBSTITUTION OF COUNSEL WITH MOTION FOR LEAVE TO FILE
MOTION FOR NEW TRIAL" 3 setting forth, in relation to the motion for
new trial:
6. The Motion for New Trial shall be grounded on newly discovered
evidence and excusible (sic) negligence, and shall be supported by
affidavits of:
(i) an officer of private complainant corporation who will exculpate
petitioner;
(ii) an admission against interest by a former officer of the owner of Ultra
Corporation (the Corporation that employed petitioner), which actually
exercised control over the affairs of Ultra; and
(iii) the petitioner wherein he will assert innocence for the first time and
explain why he was unable to do so earlier.
The Court in its July 27, 1994 Resolution, 4 among other things, granted
the substitution but denied the motion for leave to file motion for new trial,
"the petition having been already denied on February 9, 1994."
Notwithstanding, petitioner on August 8, 1994 filed a "MOTION TO
ADMIT ATTACHED MOTION FOR NEW TRIAL", 5 and a
"MANIFESTATION AND SECOND MOTION TO ADMIT" on August 17,
1994. 6 The Court thereafter required the Solicitor General to comment
on said motion and manifestation within ten (10) days from notice, in a
Resolution dated September 7, 1994. 7
In the Comment filed after three (3) extensions of time were given by the
Court, 8 the Solicitor General himself recommends that petitioner be
entitled to a new trial, proceeding from the same impression that a certain
Rodolfo Cuenca's (petitioner's brother) sworn statement is an admission
against interest which may ultimately exonerate petitioner from criminal
liability. The full text of Mr. Rodolfo Cuenca's "Affidavit" 9 reads:
RODOLFO M. CUENCA, Filipino, of legal age, with the residence at
Urdaneta Village, Makati, Metro Manila, after being duly sworn and (sic)
state that:
1. During the years 1967 until February 1983, I was the President and
Chief Executive Officer of Construction Development Corporation of the
Philippines (CDCP).
2. During that period, I controlled an effective majority of the voting
shares of stock of CDCP.
3. Sometime in 1974, upon my initiative, CDCP together with its affiliated
companies, organized a number of wholly-owned service corporations.
One of these was Ultra International Trading Corporation, whose
purpose was to serve and supply the needs of CDCP and its other
subsidiaries with lower value goods and using Ultra's financial resources.
4. The directors in Ultra Corporation were nominees of CDCP, and
received the instructions directly from me and or Mr. Pedro Valdez,
Chairman of CDCP.
5. From Ultra's inception, my brother, Mr. Edilberto M. Cuenca was
appointed President and Chief Executive Officer. On March, 1979, I
instructed Ultra through my brother, Mr. Edilberto Cuenca to purchase
for CDCP various steel materials. These materials were received by
CDCP and are covered by the trust receipts which are the subject of this
Page 102
case.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
6. In 1980, CDCP suffered cashflow problems, and consciously omitted
payment to Ultra for the delivery of the said steel materials. As a nominee
of CDCP, Mr. Edilberto M. Cuenca merely acted as agent for CDCP. As
such, CDCP provided him with the guarantees needed to persuade
China Bank to issue the said trust receipts. On the basis of such
guarantees, along with informal assurances issued by CDCP to China
Bank that the transactions of Ultra were undertaken for and on behalf of
CDCP and CDCP Mining Corporation, Ultra was able to obtain credit
facilities, among which included the trust receipts subject of this case.
7. However, Mr. Edilberto M. Cuenca had no power to cause the
payment of said trust receipts because the common Treasurer and
controller of both CDCP and Ultra, Ms. Nora Vinluan, acted under my
control and I did not allow her to make the appropriate payments.
8. To my knowledge, CDCP has not paid Ultra the amounts
corresponding to the materials covered by the trust receipts subject of
this case.
9. By the time final demand to pay on the trust receipts were (sic) served
in 1984, Mr. Edilberto Cuenca was no longer president of Ultra
Corporation and could not have possibly cause (sic) Ultra Corporation to
pay.
10. I have executed this affidavit in order to accept personal responsibility
for the trust receipts subject of this case and to exculpate Mr. Edilberto
Cuenca of the criminal charges which he has asked this Honorable Court
to review.
11. Accordingly, I also undertake to pay the civil obligations arising from
the subject trust receipts.
(Sgd.)
RODOLFO M. CUENCA
Affiant
And the Solicitor General had this to say:
Ordinarily, it is too late at this stage to ask for a new trial.
However, the sworn statement of Rodolfo Cuenca is a declaration
against his own interests under Section 38, Rule 130, Revised Rules of
Court and it casts doubt on the culpability of his brother Edilberto
Cuenca, the petitioner. Hence, the alleged confession of guilt should be
given a hard look by the Court.
The People is inclined to allow petitioner to establish the genuineness
and due execution of his brother's affidavit in the interest of justice and
fair play.
Under Rule 6.01 of Canon 6 of the Code of Professional Responsibility,
prosecutors who represent the People of the Philippines in a criminal
case are not duty bound to seek conviction of the accused but to see that
justice is done. Said Rule 6.01 of Canon 6 states:
Canon 6 These canons shall apply to lawyers in government service
in the discharge of their official tasks.
Rule 6.01 The primary duty of a lawyer engaged in public prosecution
is not to convict but to see that justice is done. The suppression of facts
or the concealment of witnesses capable of establishing the innocence
of the accused is highly reprehensible and is cause for disciplinary
action. (Emphasis supplied.)
The above duty is well founded on the instruction of the U.S. Supreme
Court in Berger v. United States, 295 U.S. 78 (1935) that prosecutors
represent a sovereign "whose obligation to govern impartially is
compelling as its obligation to govern at all; and whose interest, therefore
in a criminal prosecution is not that it shall win a case, but that justice
shall be done (Time to Rein in the Prosecution, by Atty. Bruce Fein,
published on p. 11, The Lawyers Review, July 31, 1994). (Emphasis
supplied.) 10
Although in "Goduco v. CA" (14 SCRA 282 [1965]) decided some twenty
(20) years ago, this Court ruled that it is not authorized to entertain a
motion for reconsideration and/or new trial predicated on allegedly newly
discovered evidence the rationale of which being:
The judgment of the Court of Appeals is conclusive as to the facts, and
cannot be reviewed by the Supreme Court. Accordingly, in an appeal
by certiorari to the Supreme Court, the latter has no jurisdiction to
PINEDAPCGRNMAN
entertain a motion for new trial on the ground of newly discovered
evidence, for only questions of fact are involved therein.
the rule now appears to have been relaxed, if not abandoned, in
subsequent cases like "Helmuth, Jr. v. People" 11 and "People v.
Amparado". 12
In both cases, the Court, opting to brush aside technicalities and despite
the opposition of the Solicitor General, granted new trial to the convicted
accused concerned on the basis of proposed testimonies or affidavits of
persons which the Court considered as newly discovered and probably
sufficient evidence to reverse the judgment of conviction. Being similarly
circumstanced, there is no nagging reason why herein petitioner should
be denied the same benefit. It becomes all the more plausible under the
circumstances considering that the "People" does not raise any objection
to a new trial, for which reason the Solicitor General ought to be specially
commended for displaying once again such statesmanlike gesture of
impartiality. The Solicitor General's finest hour, indeed.
WHEREFORE, petitioner's Motion For New Trial is hereby GRANTED.
Let the case be RE-OPENED and REMANDED to the court of origin for
reception of petitioner's evidence.
SO ORDERED.
Rule 6.02 A lawyer in the government service shall not use his
public position to promote or advance his private interest, nor allow
the latter to interfere with his public duties.
[A.C. No. 4018. March 8, 2005]
OMAR P. ALI, complainant, vs. ATTY. MOSIB A.
BUBONG, respondent.
DECISION
PER CURIAM:
This is a verified petition for disbarment[1] filed against Atty. Mosib Ali
Bubong for having been found guilty of grave misconduct while holding
the position of Register of Deeds of Marawi City.
It appears that this disbarment proceeding is an off-shoot of the
administrative case earlier filed by complainant against respondent. In
said case, which was initially investigated by the Land Registration
Authority (LRA), complainant charged respondent with illegal exaction;
indiscriminate issuance of Transfer Certificate of Title (TCT) No. T-2821
in the names of Lawan Bauduli Datu, Mona Abdullah,[2] Ambobae
Bauduli Datu, Matabae Bauduli Datu, Mooamadali Bauduli Datu, and
Amenola Bauduli Datu; and manipulating the criminal complaint filed
against Hadji Serad Bauduli Datu and others for violation of the Anti-
Squatting Law. It appears from the records that the Baudali Datus are
relatives of respondent.[3]
The initial inquiry by the LRA was resolved in favor of respondent. The
investigating officer, Enrique Basa, absolved respondent of all the
charges brought against him, thus:
It is crystal clear from the foregoing that complainant not only failed to
prove his case but that he has no case at all against respondent Mosib
Ali Bubong. Wherefore, premises considered, it is respectfully
recommended that the complaint against respondent be dismissed for
lack of merit and evidence.[4]
The case was then forwarded to the Department of Justice for review
and in a report dated 08 September 1992, then Secretary of Justice
Franklin Drilon exonerated respondent of the charges of illegal exaction
and infidelity in the custody of documents. He, however, found
respondent guilty of grave misconduct for his imprudent issuance of TCT
No. T-2821 and manipulating the criminal case for violation of the Anti-
Squatting Law instituted against Hadji Serad Bauduli Datu and the latters
co-accused. As a result of this finding, Secretary Drilon recommended
respondents dismissal from service.
On 26 February 1993, former President Fidel V. Ramos issued
Administrative Order No. 41 adopting in toto the conclusion reached by
Secretary Drilon and ordering respondents dismissal from government
Page 103
service. Respondent subsequently questioned said administrative order
before this Court through a petition for certiorari, mandamus, and
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
prohibition[5] claiming that the Office of the President did not have the
authority and jurisdiction to remove him from office. He also insisted that
respondents[6] in that petition violated the laws on security of tenure and
that respondent Reynaldo V. Maulit, then the administrator of the LRA
committed a breach of Civil Service Rules when he abdicated his
authority to resolve the administrative complaint against him (herein
respondent).
In a Resolution dated 15 September 1994, we dismissed the petition for
failure on the part of petitioner to sufficiently show that public respondent
committed grave abuse of discretion in issuing the questioned
order.[7] Respondent thereafter filed a motion for reconsideration which
was denied with finality in our Resolution of 15 November 1994.
On the basis of the outcome of the administrative case, complainant is
now before us, seeking the disbarment of respondent. Complainant
claims that it has become obvious that respondent had proven himself
unfit to be further entrusted with the duties of an attorney[8] and that he
poses a serious threat to the integrity of the legal profession.[9]
In his Comment, respondent maintains that there was nothing irregular
with his issuance of TCT No. T-2821 in the name of the Bauduli Datus.
According to him, both law[10] and jurisprudence support his stance that
it was his ministerial duty, as the Register of Deeds of Marawi City, to act
on applications for land registration on the basis only of the documents
presented by the applicants. In the case of the Bauduli Datus, nothing in
the documents they presented to his office warranted suspicion, hence,
he was duty-bound to issue TCT No. T-2821 in their favor.
Respondent also insists that he had nothing to do with the dismissal of
criminal complaint for violation of the Anti-Squatting Law allegedly
committed by Hadji Serad Abdullah and the latters co-defendants.
Respondent explains that his participation in said case was a result of
the two subpoenas duces tecum issued by the investigating prosecutor
who required him to produce the various land titles involved in said
dispute. He further claims that the dismissal of said criminal case by the
Secretary of Justice was based solely on the evidence presented by the
parties. Complainants allegation, therefore, that he influenced the
outcome of the case is totally unjustified.
Through a resolution dated 26 June 1995,[11] this Court referred this
matter to the Integrated Bar of the Philippines (IBP) for investigation,
report, and recommendation. Acting on this resolution, the IBP
commenced the investigation of this disbarment suit. On 23 February
1996, Commissioner Victor C. Fernandez issued the following order
relative to the transfer of venue of this case. The pertinent portion of this
order provides:
ORDER
When this case was called for hearing, both complainant and respondent
appeared.
The undersigned Commissioner asked them if they are willing to have
the reception of evidence vis--vis this case be done in Marawi City,
Lanao del Sur before the president of the local IBP Chapter. Both parties
agreed. Accordingly, transmit the records of this case to the Director for
Bar Discipline for appropriate action.[12]
On 30 March 1996, the IBP Board of Governors passed a resolution
approving Commissioner Fernandezs recommendation for the transfer
of venue of this administrative case and directed the Western Mindanao
Region governor to designate the local IBP chapter concerned to
conduct the investigation, report, and recommendation.[13] The IBP
Resolution states:
Resolution No. XII-96-153
Adm. Case No. 4018
Omar P. Ali vs. Atty. Mosib A. Bubong
RESOLVED TO APPROVE the recommendation of Commissioner
Victor C. Fernandez for the Transfer of Venue of the above-entitled case
and direct the Western Mindanao Region Governor George C. Jabido to
designate the local IBP Chapter concerned to conduct the investigation,
report and recommendation.
Pursuant to this resolution, Atty. Benjamin B. Bernardino, Director for Bar
Discipline, wrote a letter dated 23 October 1996 addressed to Governor
PINEDAPCGRNMAN
George C. Jabido, President of IBP Cotabato Chapter requesting the
latter to receive the evidence in this case and to submit his
recommendation and recommendation as directed by the IBP Board of
Governors.[14]
In an undated Report and Recommendation, the IBP Cotabato
Chapter[15] informed the IBP Commission on Bar Discipline (CBD) that
the investigating panel[16] had sent notices to both complainant and
respondent for a series of hearings but respondent consistently ignored
said notices. The IBP Cotabato Chapter concluded its report by
recommending that respondent be suspended from the practice of law
for five years.
On 01 July 1998, respondent filed a motion dated 30 June 1998 praying
for the transmittal of the records of this case to the Marawi City-Lanao
del Sur Chapter of the IBP pursuant to Resolution No. XII-96-153 as well
as Commissioner Fernandezs Order dated 23 February 1996.
Commissioner Fernandez thereafter ordered the investigating panel of
IBP Cotabato Chapter to comment on respondents motion.[17] Complying
with this directive, the panel expressed no opposition to respondents
motion for the transmittal of the records of this case to IBP Marawi
City.[18] On 25 September 1998, Commissioner Fernandez ordered the
referral of this case to IBP Marawi City for the reception of respondents
evidence.[19] This order of referral, however, was set aside by the IBP
Board of Governors in its Resolution No. XIII-98-268 issued on 4
December 1998. Said resolution provides:
RESOLVED to DENY the ORDER of Commissioner Victor C. Fernandez
for the transmittal of the case records of the above-entitled case to
Marawi City, rather he is directed to re-evaluate the recommendation
submitted by Cotabato Chapter and report the same to the Board of
Governors.[20]
Prior to the issuance of Resolution No. XIII-98-268, respondent filed on
08 October 1998 a motion praying that the recommendation of the IBP
Cotabato Chapter be stricken from the records.[21] Respondent insists
that the investigating panel constituted by said IBP chapter did not have
the authority to conduct the investigation of this case since IBP
Resolution XII-96-153 and Commissioner Fernandezs Order of 23
February 1996 clearly vested IBP Marawi City with the power to
investigate this case. Moreover, he claims that he was never notified of
any hearing by the investigating panel of IBP Cotabato Chapter thereby
depriving him of his right to due process.
Complainant opposed[22] this motion arguing that respondent is guilty of
laches. According to complainant, the report and recommendation
submitted by IBP Cotabato Chapter expressly states that respondent
was duly notified of the hearings conducted by the investigating panel
yet despite these, respondent did nothing to defend himself. He also
claims that respondent did not even bother to submit his position paper
when he was directed to do so. Further, as respondent is a member of
IBP Marawi City Chapter, complainant maintains that the presence of
bias in favor of respondent is possible. Finally, complainant contends
that to refer the matter to IBP Marawi City would only entail a duplication
of the process which had already been completed by IBP Cotabato
Chapter.
In an Order dated 15 October 1999,[23] Commissioner Fernandez
directed IBP Cotabato Chapter to submit proofs that notices for the
hearings conducted by the investigating panel as well as for the
submission of the position paper were duly received by respondent. On
21 February 2000, Atty. Jabido, a member of the IBP Cotabato Chapter
investigating panel, furnished Commissioner Fernandez with a copy of
the panels order dated 4 August 1997.[24] Attached to said order was
Registry Receipt No. 3663 issued by the local post office. On the lower
portion of the registry receipt was a handwritten notation reading Atty.
Mosib A. Bubong.
On 20 April 2001, Commissioner Fernandez ordered Atty. Pedro S.
Castillo, Chairman of the Commission on Bar Discipline for Mindanao, to
reevaluate the report and recommendation submitted by IBP Cotabato
Page 104
Chapter. This directive had the approval of the IBP Board of Governors
through its Resolution No. XIV-2001-271 issued on 30 June 2001, to wit:
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
RESOLVED to APPROVE the recommendation of Director Victor C.
Fernandez for the Transfer of Venue of the above-entitled case and
direct the CBD Mindanao to conduct an investigation, re-evaluation,
report and recommendation within sixty (60) days from receipt of
notice.[25]
Meanwhile, Bainar A. Ali, informed the CBD Mindanao of the death of
her father, Omar P. Ali, complainant in this case. According to her, her
father passed away on 12 June 2002 and that in interest of peace and
Islamic brotherhood, she was requesting the withdrawal of this case.[26]
Subsequently, respondent filed another motion, this time, asking the IBP
CBD to direct the chairman of the Commission on Bar Discipline for
Mindanao to designate and authorize the IBP Marawi City-Lanao del Sur
Chapter to conduct an investigation of this case.[27] This motion was
effectively denied by Atty. Pedro S. Castillo in an Order dated 19 July
2002.[28]According to Atty. Castillo
After going over the voluminous records of the case, with special
attention made on the report of the IBP Cotabato City Chapter, the
Complaint and the Counter-Affidavit of respondent, the undersigned
sees no need for any further investigation, to be able to make a re-
evaluation and recommendation on the Report of the IBP Chapter of
Cotabato City.
WHEREFORE, the Motion to authorize the IBP-Chpater of Marawi City,
Zamboanga del Norte is hereby denied. The undersigned will submit his
Report to the Commission on Bar Discipline, IBP National Office within
ten (10) days from date hereof.
In his Report and Recommendation, Atty. Castillo adopted in toto the
findings and conclusion of IBP Cotabato Chapter ratiocinating as follows:
The Complaint for Disbarment is primarily based on the Decision by the
Office of the President in Administrative Case No. 41 dated February 26,
1993, wherein herein respondent was found guilty of Grave Misconduct
in:
a) The imprudent issuance of T.C.T. No. T-2821; and,
b) Manipulating the criminal complaint for violation of the anti-squatting
law.
And penalized with dismissal from the service, as Register of Deeds of
Marawi City. In the Comment filed by respondent in the instant
Adminsitrative Case, his defense is good faith in the issuance of T.C.T.
No. T-2821 and a denial of the charge of manipulating the criminal
complaint for violation of the anti-squatting law, which by the way, was
filed against respondents relatives. Going over the Decision of the Office
of the President in Administrative Case No. 41, the undersigned finds
substantial evidence were taken into account and fully explained, before
the Decision therein was rendered. In other words, the finding of Grave
Misconduct on the part of respondent by the Office of the President was
fully supported by evidence and as such carries a very strong weight in
considering the professional misconduct of respondent in the present
case.
In the light of the foregoing, the undersigned sees no reason for
amending or disturbing the Report and Recommendation of the IBP
Chapter of South Cotabato.[29]
In a resolution passed on 19 October 2002, the IBP Board of Governors
adopted and approved, with modification, the afore-quoted Report and
Recommendation of Atty. Castillo. The modification pertained solely to
the period of suspension from the practice of law which should be
imposed on respondent whereas Atty. Castillo concurred in the earlier
recommendation of IBP Cotabato Chapter for a five-year suspension, the
IBP Board of Governors found a two-year suspension to be proper.
On 17 January 2003, respondent filed a Motion for Reconsideration with
the IBP which the latter denied as by that time, the matter had already
been endorsed to this Court.[30]
The issue thus posed for this Courts resolution is whether respondent
may be disbarred for grave misconduct committed while he was in the
employ of the government. We resolve this question in the affirmative.
The Code of Professional Responsibility does not cease to apply to a
lawyer simply because he has joined the government service. In fact, by
the express provision of Canon 6 thereof, the rules governing the
PINEDAPCGRNMAN
conduct of lawyers shall apply to lawyers in government service in the
discharge of their official tasks. Thus, where a lawyers misconduct as a
government official is of such nature as to affect his qualification as a
lawyer or to show moral delinquency, then he may be disciplined as a
member of the bar on such grounds.[31] Although the general rule is that
a lawyer who holds a government office may not be disciplined as a
member of the bar for infractions he committed as a government official,
he may, however, be disciplined as a lawyer if his misconduct constitutes
a violation of his oath a member of the legal profession.[32]
Indeed, in the case of Collantes v. Atty. Vicente C. Renomeron,[33] we
ordered the disbarment of respondent on the ground of his dismissal
from government service because of grave misconduct. Quoting the late
Chief Justice Fred Ruiz Castro, we declared
[A] person takes an oath when he is admitted to the bar which is
designed to impress upon him his responsibilities. He thereby becomes
an officer of the court on whose shoulders rests the grave responsibility
of assisting the courts in the proper, fair, speedy and efficient
administration of justice. As an officer of the court he is subject to a rigid
discipline that demands that in his every exertion the only criterion be
that truth and justice triumph. This discipline is what has given the law
profession its nobility, its prestige, its exalted place. From a lawyer, to
paraphrase Justice Felix Frankfurter, are expected those qualities of
truth-speaking, a high sense of honor, full candor, intellectual honesty,
and the strictest observance of fiduciary responsibility all of which,
throughout the centuries, have been compendiously described as moral
character.[34]
Similarly, in Atty. Julito D. Vitriolo, et al. v. Atty. Felina Dasig,[35] this Court
found sufficient basis to disbar respondent therein for gross misconduct
perpetrated while she was the Officer-in-Charge of Legal Services of the
Commission on Higher Education. As we had explained in that case
[A] lawyer in public office is expected not only to refrain from any act or
omission which might tend to lessen the trust and confidence of the
citizenry in government, she must also uphold the dignity of the legal
profession at all times and observe a high standard of honesty and fair
dealing. Otherwise said, a lawyer in government service is a keeper of
the public faith and is burdened with high degree of social responsibility,
perhaps higher than her brethren in private practice.[36] (Emphasis
supplied)
In the case at bar, respondents grave misconduct, as established by the
Office of the President and subsequently affirmed by this Court, deals
with his qualification as a lawyer. By taking advantage of his office as the
Register of Deeds of Marawi City and employing his knowledge of the
rules governing land registration for the benefit of his relatives,
respondent had clearly demonstrated his unfitness not only to perform
the functions of a civil servant but also to retain his membership in the
bar. Rule 6.02 of the Code of Professional Responsibility is explicit on
this matter. It reads:
Rule 6.02 A lawyer in the government service shall not use his public
position to promote or advance his private interests, nor allow the latter
to interfere with his public duties.
Respondents conduct manifestly undermined the peoples confidence in
the public office he used to occupy and cast doubt on the integrity of the
legal profession. The ill-conceived use of his knowledge of the intricacies
of the law calls for nothing less than the withdrawal of his privilege to
practice law.
As for the letter sent by Bainar Ali, the deceased complainants daughter,
requesting for the withdrawal of this case, we cannot possibly favorably
act on the same as proceedings of this nature cannot be interrupted or
terminated by reason of desistance, settlement, compromise, restitution,
withdrawal of the charges or failure of the complainant to prosecute the
same.[37] As we have previously explained in the case of Irene Rayos-
Ombac v. Atty. Orlando A. Rayos:[38]
A case of suspension or disbarment may proceed regardless of interest
or lack of interest of the complainant. What matters is whether, on the
Page 105
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
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
the nature of disciplinary proceedings. A proceeding for suspension or
disbarment is not in any sense a civil action where the complainant is a
plaintiff and the respondent lawyer is a defendant. Disciplinary
proceedings involve no private interest and afford no redress for private
grievance. They are undertaken and prosecuted solely for the public
welfare. They are undertaken for the purpose of preserving courts of
justice from the official ministration of persons unfit to practice in them.
The attorney is called to answer to the court for his conduct as an officer
of the court. The complainant or the person who called the attention of
the court to the attorneys alleged misconduct is in no sense a party, and
has generally no interest in the outcome except as all good citizens may
have in the proper administrative of justice.[39]
WHEREFORE, respondent Atty. Mosib A. Bubong is hereby
DISBARRED and his name is ORDERED STRICKEN from the Roll of
Attorneys. Let a copy of this Decision be entered in the respondents
record as a member of the Bar, and notice of the same be served on the
Integrated Bar of the Philippines, and on the Office of the Court
Administrator for circulation to all courts in the country.
SO ORDERED.
JOVITO S. OLAZO, A.M. No. 10-5-7-SC
Complainant,
Present:
CORONA, C.J.,
CARPIO,
CARPIO MORALES,
*VELASCO, JR.,
NACHURA,
- versus - LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
JUSTICE DANTE O. TINGA (Ret.), MENDOZA, and
Respondent. SERENO, JJ.
Promulgated:
December 7, 2010
x---------------------------------------------------------------------------------------
-x
DECISION
BRION, J.:
Before us is the disbarment case against retired Supreme Court
Associate Justice Dante O. Tinga (respondent) filed by Mr. Jovito S.
Olazo (complainant). The respondent is charged of violating Rule
6.02,[1] Rule 6.03[2] and Rule 1.01[3] of the Code of Professional
Responsibility for representing conflicting interests.
Factual Background
In March 1990, the complainant filed a sales application covering a
parcel of land situated in Barangay Lower Bicutan in the Municipality of
Taguig. The land (subject land) was previously part of Fort Andres
Bonifacio that was segregated and declared open for disposition
pursuant to Proclamation No. 2476,[4] issued on January 7, 1986, and
Proclamation No. 172,[5] issued on October 16, 1987.
To implement Proclamation No. 172, Memorandum No. 119 was issued
by then Executive Secretary Catalino Macaraig, creating a Committee
PINEDAPCGRNMAN
on Awards whose duty was to study, evaluate, and make a
recommendation on the applications to purchase the lands declared
open for disposition. The Committee on Awards was headed by the
Director of Lands and the respondent was one of the Committee
members, in his official capacity as the Congressman of Taguig and
Pateros (from 1987 to 1998); the respondents district includes the areas
covered by the proclamations.
The First Charge: Violation of Rule 6.02
In the complaint,[6] the complainant claimed that the respondent abused
his position as Congressman and as a member of the Committee on
Awards when he unduly interfered with the complainants sales
application because of his personal interest over the subject land. The
complainant alleged that the respondent exerted undue pressure and
influence over the complainants father, Miguel P. Olazo, for the latter to
contest the complainants sales application and claim the subject land for
himself. The complainant also alleged that the respondent prevailed
upon Miguel Olazo to accept, on various dates, sums of money as
payment of the latters alleged rights over the subject land. The
complainant further claimed that the respondent brokered the transfer of
rights of the subject land between Miguel Olazo and Joseph Jeffrey
Rodriguez, who is the nephew of the respondents deceased wife.
As a result of the respondents abuse of his official functions, the
complainants sales application was denied. The conveyance of rights to
Joseph Jeffrey Rodriguez and his sales application were subsequently
given due course by the Department of Environment and Natural
Resources (DENR).
The Second Charge: Violation of Rule 6.03
The second charge involves another parcel of land within the proclaimed
areas belonging to Manuel Olazo, the complainants brother. The
complainant alleged that the respondent persuaded Miguel Olazo to
direct Manuel to convey his rights over the land to Joseph Jeffrey
Rodriguez. As a result of the respondents promptings, the rights to the
land were transferred to Joseph Jeffrey Rodriguez.
In addition, the complainant alleged that in May 1999, the respondent
met with Manuel for the purpose of nullifying the conveyance of rights
over the land to Joseph Jeffrey Rodriguez. The complainant claimed that
the respondent wanted the rights over the land transferred to one
Rolando Olazo, the Barangay Chairman of Hagonoy, Taguig.The
respondent in this regard executed an Assurance where he stated that
he was the lawyer of Ramon Lee and Joseph Jeffrey Rodriguez.
The Third Charge: Violation of Rule 1.01
The complainant alleged that the respondent engaged in unlawful
conduct considering his knowledge that Joseph Jeffrey Rodriguez was
not a qualified beneficiary under Memorandum No. 119. The
complainant averred that Joseph Jeffrey Rodriguez is not a bona
fide resident of the proclaimed areas and does not qualify for an award.
Thus, the approval of his sales application by the Committee on Awards
amounted to a violation of the objectives of Proclamation No. 172 and
Memorandum No. 119.
The complainant also alleged that the respondent violated Section
7(b)(2) of the Code of Conduct and Ethical Standards for Public Officials
and Employees or Republic Act (R.A.) No. 6713 since he engaged in the
practice of law, within the one-year prohibition period, when he appeared
as a lawyer for Ramon Lee and Joseph Jeffrey Rodriguez before the
Page 106
Committee on Awards.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
In his Comment,[7] the respondent claimed that the present complaint is
the third malicious charge filed against him by the complainant. The first
one was submitted before the Judicial and Bar Council when he was
nominated as an Associate Justice of the Supreme Court; the second
complaint is now pending with the Office of the Ombudsman, for alleged
violation of Section 3(e) and (i) of R.A. No. 3019, as amended.
With his own supporting documents, the respondent presented a
different version of the antecedent events.
The respondent asserted that Miguel Olazo owned the rights over the
subject land and he later conveyed these rights to Joseph Jeffrey
Rodriguez. Miguel Olazos rights over the subject land and the transfer of
his rights to Joseph Jeffrey Rodriguez were duly recognized by the
Secretary of the DENR before whom the conflict of rights over the subject
land (between Miguel Olazo and Joseph Jeffrey Rodriguez, on one hand,
and the complainant on the other hand) was brought. In its decision, the
DENR found Joseph Jeffrey Rodriguez a qualified applicant, and his
application over the subject land was given due course. The respondent
emphasized that the DENR decision is now final and executory. It was
affirmed by the Office of the President, by the Court of Appeals and by
the Supreme Court.
The respondent also advanced the following defenses:
(1) He denied the complainants allegation that Miguel Olazo told him
(complainant) that the respondent had been orchestrating to get the
subject land. The respondent argued that this allegation was without
corroboration and was debunked by the affidavits of Miguel Olazo and
Francisca Olazo, the complainants sister.
(2) He denied the complainants allegation that he offered the
complainant P50,000.00 for the subject land and that he (the
respondent) had exerted undue pressure and influence on Miguel Olazo
to claim the rights over the subject land. The respondent also denied that
he had an inordinate interest in the subject land.
(3) He claimed that there was nothing wrong in signing as a witness in
Miguel Olazos affidavit where the latter asserted his rights over the
subject land. The affidavit merely attested to the truth.
(4) He asserted that he and Miguel Olazo were cousins and that the latter
decided to sell his rights over the subject land for the medical treatment
of his heart condition and the illness of his daughter, Francisca
Olazo. The respondent insisted that the money he extended to them was
a form of loan.
(5) The respondents participation in the transaction between Miguel
Olazo and Joseph Jeffrey Rodriguez involved the payment of the loan
that the respondent extended to Miguel Olazo.
(6) Manuels belated and secondhand allegation in his Sinumpaang
Salaysay, dated January 20, 2000, regarding what his father told him,
cannot prevail over his earlierSinumpaang Salaysay with Francisca
Olazo, dated August 2, 1997. In the said Sinumpaang Salaysay, Manuel
categorically asserted that his father Miguel Olazo, not the complainant,
was the farmer-beneficiary. Manuel also expressed his agreement to the
transfer of rights (Pagpapatibay Sa Paglilipat Ng Karapatan) in favor of
Joseph Jeffrey Rodriguez, and the withdrawal of his fathers application
to give way to Joseph Jeffrey Rodriguezs application.
(7) The complainants allegation that the respondent had pressured and
influenced Miguel Olazo to sell the subject land was not sufficient as it
was lacking in specificity and corroboration. The DENR decision was
clear that the complainant had no rights over the subject land.
PINEDAPCGRNMAN
The respondent additionally denied violating Rule 1.01 of the Code of
Professional Responsibility. He alleged that during his third term as
Congressman from 1995 to 1997, the conflicting applications of the
complainant, Miguel Olazo and Joseph Jeffrey Rodriguez were not
included in the agenda for deliberation of the Committee on
Awards.Rather, their conflicting claims and their respective supporting
documents were before the Office of the Regional Director, NCR of the
DENR. This office ruled over the conflicting claims only on August 2,
2000. This ruling became the basis of the decision of the Secretary of
the DENR.
Similarly, the respondent cannot be held liable under Rule 6.02 of the
Code of Professional Responsibility since the provision applies to
lawyers in the government service who are allowed by law to engage in
private law practice and to those who, though prohibited from engaging
in the practice of law, have friends, former associates and relatives who
are in the active practice of law.[8] In this regard, the respondent had
already completed his third term in Congress and his stint in the
Committee on Awards when he represented Joseph Jeffrey Rodriguez
on May 24, 1999.
Lastly, the respondent claimed that he cannot be held liable under Rule
6.03 of the Code of Professional Responsibility since he did not intervene
in the disposition of the conflicting applications of the complainant and
Joseph Jeffrey Rodriguez because the applications were not submitted
to the Committee on Awards when he was still a member.
The Courts Ruling
Generally, a lawyer who holds a government office may not be
disciplined as a member of the Bar for misconduct in the discharge of his
duties as a government official.[9]He may be disciplined by this Court as
a member of the Bar only when his misconduct also constitutes a
violation of his oath as a lawyer.[10]
The issue in this case calls for a determination of whether the
respondents actions constitute a breach of the standard ethical
conduct first, while the respondent was still an elective public official and
a member of the Committee on Awards; and second, when he was no
longer a public official, but a private lawyer who represented a client
before the office he was previously connected with.
After a careful evaluation of the pleadings filed by both parties and their
respective pieces of evidence, we resolve to dismiss the administrative
complaint.
Accountability of a government lawyer in public office
Canon 6 of the Code of Professional Responsibility highlights the
continuing standard of ethical conduct to be observed by government
lawyers in the discharge of their official tasks. In addition to the standard
of conduct laid down under R.A. No. 6713 for government employees, a
lawyer in the government service is obliged to observe the standard of
conduct under the Code of Professional Responsibility.
Since public office is a public trust, the ethical conduct demanded upon
lawyers in the government service is more exacting than the standards
for those in private practice. Lawyers in the government service are
subject to constant public scrutiny under norms of public
accountability. They also bear the heavy burden of having to put aside
their private interest in favor of the interest of the public; their private
activities should not interfere with the discharge of their official
functions.[11]
Page 107
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
The first charge involves a violation of Rule 6.02 of the Code of
Professional Responsibility. It imposes the following restrictions in the
conduct of a government lawyer:
A lawyer in the government service shall not use his public position to
promote or advance his private interests, nor allow the latter to interfere
with his public duties.
The above provision prohibits a lawyer from using his or her public
position to: (1) promote private interests; (2) advance private interests;
or (3) allow private interest to interfere with his or her public duties. We
previously held that the restriction extends to all government
lawyers who use their public offices to promote their private interests.[12]
In Huyssen v. Gutierrez,[13] we defined promotion of private interest to
include soliciting gifts or anything of monetary value in any transaction
requiring the approval of his or her office, or may be affected by the
functions of his or her office. In Ali v. Bubong,[14] we recognized that
private interest is not limited to direct interest, but extends to advancing
the interest of relatives. We also ruled that private interest interferes with
public duty when the respondent uses the office and his or her
knowledge of the intricacies of the law to benefit relatives.[15]
In Vitriolo v. Dasig,[16] we found the act of the respondent (an official of
the Commission on Higher Education) of extorting money from persons
with applications or requests pending before her office to be a serious
breach of Rule 6.02 of the Code of Professional Responsibility.[17] We
reached the same conclusion in Huyssen, where we found the
respondent (an employee of the Bureau of Immigration and Deportation)
liable under Rule 6.02 of the Code of Professional Responsibility, based
on the evidence showing that he demanded money from the complainant
who had a pending application for visas before his office.[18]
Similarly, in Igoy v. Soriano[19] we found the respondent (a Court
Attorney of this Court) liable for violating Rule 6.02 of the Code of
Professional Responsibility, after considering the evidence showing that
he demanded and received money from the complainant who had a
pending case before this Court.
Applying these legal precepts to the facts of the case, we find the
absence of any concrete proof that the respondent abused his position
as a Congressman and as a member of the Committee on Awards in the
manner defined under Rule 6.02 of the Code of Professional
Responsibility.
First, the records do not clearly show if the complainants sales
application was ever brought before the Committee on Awards. By the
complaints own account, the complainant filed a sales application in
March 1990 before the Land Management Bureau. By 1996, the
complainants sales application was pending before the Office of the
Regional Director, NCR of the DENR due to the conflicting claims of
Miguel Olazo, and, subsequently, of Joseph Jeffrey Rodriguez. The
records show that it was only on August 2, 2000 that the Office of the
Regional Director, NCR of the DENR rendered its decision, or after the
term of the respondents elective public office and membership to the
Committee on Awards, which expired in 1997.
These circumstances do not show that the respondent did in any way
promote, advance or use his private interests in the discharge of his
official duties. To repeat, since the sales application was not brought
before the Committee on Awards when the respondent was still a
member, no sufficient basis exists to conclude that he used his position
to obtain personal benefits. We note in this regard that the denial of the
complainants sales application over the subject land was made by the
DENR, not by the Committee on Awards.
PINEDAPCGRNMAN
Second, the complainants allegation that the respondent orchestrated
the efforts to get the subject land does not specify how the orchestration
was undertaken. What appears clear in the records is the
uncorroborated Sinumpaang Salaysay of Miguel Olazo, dated May 25,
2003,[20] categorically stating that the respondent had no interest in the
subject land, and neither was he a contracting party in the transfer of his
rights over the subject land. In the absence of any specific charge,
Olazos disclaimer is the nearest relevant statement on the respondents
alleged participation, and we find it to be in the respondents favor.
Third, the other documents executed by Miguel Olazo, that the
complainant presented to support his claim that the respondent exerted
undue pressure and influence over his father (namely: the letter, dated
June 22, 1996, to the DENR Regional Director-NCR;[21] the Sinumpaang
Salaysay dated July 12, 1996;[22] and the Sinumpaang Salaysaydated
July 17, 1996[23]), do not contain any reference to the alleged pressure
or force exerted by the respondent over Miguel Olazo. The documents
merely showed that the respondent helped Miguel Olazo in having his
farm lots (covered by the proclaimed areas) surveyed. They also showed
that the respondent merely acted as a witness in theSinumpaang
Salaysay dated July 17, 1996. To our mind, there are neutral acts that
may be rendered by one relative to another, and do not show how the
respondent could have influenced the decision of Miguel Olazo to
contest the complainants sales application. At the same time, we cannot
give any credit to the Sinumpaang Salaysay, dated January 20, 2000, of
Manuel. They are not only hearsay but are contrary to what Miguel Olazo
states on the record. We note that Manuel had no personal knowledge,
other than what Miguel Olazo told him, of the force allegedly exerted by
the respondent against Miguel Olazo.
In turn, the respondent was able to provide a satisfactory explanation -
backed by corroborating evidence - of the nature of the transaction in
which he gave the various sums of money to Miguel Olazo and Francisca
Olazo in the year 1995. In her affidavits dated May 25, 2003[24] and July
21, 2010,[25] Francisca Olazo corroborated the respondents claim that
the sums of money he extended to her and Miguel Olazo were loans
used for their medical treatment. Miguel Olazo, in his Sinumpaang
Salaysay dated May 25, 2003, asserted that some of the money
borrowed from the respondent was used for his medical treatment and
hospitalization expenses.
The affidavit of Joseph Jeffrey Rodriguez further corroborated the
respondents claim that the latters involvement was limited to being paid
the loans he gave to Miguel Olazo and Francisca Olazo. According to
Joseph Jeffrey Rodriguez, he and Miguel Olazo agreed that a portion of
the loan would be directly paid by Joseph Jeffrey Rodriguez to the
respondent and the amount paid would be considered as part of the
purchase price of the subject land.[26]
It also bears stressing that a facial comparison of the documentary
evidence, specifically the dates when the sums of money were extended
by the respondent on February 21, 1995, September 2, 1995 and
October 17, 1995, and the date when the Deed of Conveyance[27] over
the subject land was executed or on October 25, 1995, showed that the
sums of money were extended prior to the transfer of rights over the
subject land. These pieces of evidence are consistent with the
respondents allegation that Miguel Olazo decided to sell his rights over
the subject land to pay the loans he obtained from the respondent and,
also, to finance his continuing medical treatment.
Private practice of law after separation from public office
Page 108
As proof that the respondent was engaged in an unauthorized practice
of law after his separation from the government service, the complainant
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
presented the Sinumpaang Salaysay, dated January 20, 2000, of
Manuel and the document entitled Assurance where the respondent
legally represented Ramon Lee and Joseph Jeffrey Rodriguez.
Nevertheless, the foregoing pieces of evidence fail to persuade us to
conclude that there was a violation of Rule 6.03 of the Code of
Professional Responsibility.
In Cayetano v. Monsod,[28] we defined the practice of law as any activity,
in and out of court, that requires the application of law, legal procedure,
knowledge, training and experience. Moreover, we ruled that to engage
in the practice of law is to perform those acts which are characteristics
of the profession; to practice law is to give notice or render any kind of
service, which device or service requires the use in any degree of legal
knowledge or skill.
Under the circumstances, the foregoing definition should be correlated
with R.A. No. 6713 and Rule 6.03 of the Code of Professional
Responsibility which impose certain restrictions on government lawyers
to engage in private practice after their separation from the service.
Section 7(b)(2) of R.A. No. 6713 reads:
Section 7. Prohibited Acts and Transactions. In addition to acts and
omissions of public officials and employees now prescribed in the
Constitution and existing laws, the following shall constitute prohibited
acts and transactions of any public official and employee and are hereby
declared to be unlawful:
xxxx
(b) Outside employment and other activities related thereto. Public
officials and employees during their incumbency shall not:
xxxx
(2) Engage in the private practice of their profession unless authorized
by the Constitution or law, provided, that such practice will not conflict or
tend to conflict with their official functions; xx x
These prohibitions shall continue to apply for a period of one (1) year
after resignation, retirement, or separation from public office, except in
the case of subparagraph (b) (2) above, but the professional concerned
cannot practice his profession in connection with any matter before the
office he used to be with, in which case the one-year prohibition shall
likewise apply.
As a rule, government lawyers are not allowed to engage in the private
practice of their profession during their incumbency.[29] By way of
exception, a government lawyer can engage in the practice of his or her
profession under the following conditions: first, the private practice is
authorized by the Constitution or by the law; and second, the practice
will not conflict or tend to conflict with his or her official functions.[30] The
last paragraph of Section 7 provides an exception to the exception. In
case of lawyers separated from the government service who are covered
under subparagraph (b) (2) of Section 7 of R.A. No. 6713, a one-year
prohibition is imposed to practice law in connection with any matter
before the office he used to be with.
Rule 6.03 of the Code of Professional Responsibility echoes this
restriction and prohibits lawyers, after leaving the government service, to
accept engagement or employment in connection with any matter in
which he had intervened while in the said service. The keyword in Rule
6.03 of the Code of Professional Responsibility is the term intervene
which we previously interpreted to include an act of a person who has
the power to influence the proceedings.[31] Otherwise stated, to fall within
the ambit of Rule 6.03 of the Code of Professional Responsibility, the
respondent must have accepted engagement or employment in a matter
which, by virtue of his public office, he had previously exercised power
to influence the outcome of the proceedings.
PINEDAPCGRNMAN
As the records show, no evidence exists showing that the respondent
previously interfered with the sales application covering Manuels land
when the former was still a member of the Committee on Awards. The
complainant, too, failed to sufficiently establish that the respondent was
engaged in the practice of law. At face value, the legal service rendered
by the respondent was limited only in the preparation of a single
document. In Borja, Sr. v. Sulyap, Inc.,[32] we specifically described
private practice of law as one that contemplates a succession of acts of
the same nature habitually or customarily holding ones self to the public
as a lawyer.
In any event, even granting that respondents act fell within the definition
of practice of law, the available pieces of evidence are insufficient to
show that the legal representation was made before the Committee on
Awards, or that the Assurance was intended to be presented before
it. These are matters for the complainant to prove and we cannot
consider any uncertainty in this regard against the respondents favor.
Violation of Rule 1.01
Rule 1.01 prohibits a lawyer from engaging in unlawful, immoral or
deceitful conduct. From the above discussion, we already struck down
the complainants allegation that respondent engaged in an unauthorized
practice of law when he appeared as a lawyer for Ramon Lee and
Joseph Jeffrey Rodriguez before the Committee on Awards.
We find that a similar treatment should be given to the complainants
claim that the respondent violated paragraph 4(1)[33] of Memorandum
No. 119 when he encouraged the sales application of Joseph Jeffrey
Rodriguez despite his knowledge that his nephew was not a qualified
applicant. The matter of Joseph Jeffrey Rodriguezs qualifications to
apply for a sales application over lots covered by the proclaimed areas
has been resolved in the affirmative by the Secretary of the DENR in the
decision dated April 3, 2004,[34]when the DENR gave due course to his
sales application over the subject land. We are, at this point, bound by
this finding.
As pointed out by the respondent, the DENR decision was affirmed by
the Office of the President, the Court of Appeals[35] and, finally, the Court,
per our MinuteResolution, dated October 11, 2006, in G.R. No. 173453.
In our Resolution, we dismissed the petition for review on certiorari filed
by the complainant after finding, among others, that no reversible error
was committed by the Court of Appeals in its decision.[36]
All told, considering the serious consequences of the penalty of
disbarment or suspension of a member of the Bar, the burden rests on
the complainant to present clear, convincing and satisfactory proof for
the Court to exercise its disciplinary powers.[37] The respondent generally
is under no obligation to prove his/her defense,[38] until the burden shifts
to him/her because of what the complainant has proven. Where no case
has in the first place been proven, nothing has to be rebutted in
defense.[39]
With this in mind, we resolve to dismiss the administrative case against
the respondent for the complainants failure to prove by clear and
convincing evidence that the former committed unethical infractions
warranting the exercise of the Courts disciplinary power.
WHEREFORE, premises considered, we DISMISS the administrative
case for violation of Rule 6.02, Rule 6.03 and Rule 1.01 of the Code of
Professional Responsibility, filed against retired Supreme Court
Associate Justice Dante O. Tinga, for lack of merit.
SO ORDERED.
Page 109
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Rule 6.03 A lawyer shall not, after leaving government service,
accept engagements or employment in connection with any matter
in which he had intervened while in said service.
Various ways a government lawyer leaves government
service:
1. retirement
2. resignation
3. expiration of the term of office
4. dismissal
5. abandonment
Q: What are the pertinent statutory provisions regarding
this Rule?
A: Sec. 3 (d) RA 3019 as amended and Sec. 7 (b), RA 6713
Sec 3. Corrupt practice of Public Officers. In addition to acts or
omission of public officers already penalized by existing law, the
following shall constitute corrupt practice of any public officer and are
hereby declared to be unlawful:
(d) accepting or having any member of his family accept employment in
a private enterprise which has pending official business with him during
the pendency thereof or within one year after termination.
Section 7 (b) of RA 6713 prohibits officials from doing any of the following
acts:
1. own, control, manage or accept employment as officer,
employee, consultant, counsel, broker, agent, trustee or
nominee in any private enterprise regulated, supervised or
licensed by their office unless expressly allowed by law.
These prohibitions shall continue to apply for a period of one (1) year
after resignation, retirement, or separation from public office, except in
the case of subparagraph (b) (2) above, but the professional concerned
cannot practice his profession in connection with any matter before the
office he used to be with, in which case the one year prohibition shall
likewise apply.
Lawyers in the government service are prohibited to engage
in the private practice of their profession unless authorized by
the constitution or law, provided that such practice will not
conflict or tend to conflict with their official functions.
Misconduct in office as a public official may be a ground for
disciplinary action (if of such character as to affect his
qualification as lawyer or to show moral delinquency).
Should recommend the acquittal of the accused whose
conviction is on appeal, IF he finds no legal basis to sustain
the conviction.
Includes restriction is representing conflicting interest (e.g.
Accepting engagements vs. former employer, PNB)
The OSG is not authorized to represent a public official at any
state of a criminal case.
[G.R. Nos. 151809-12. April 12, 2005]
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT
(PCGG), petitioner, vs. SANDIGANBAYAN (Fifth Division), LUCIO
C. TAN, CARMEN KHAO TAN, FLORENCIO T. SANTOS, NATIVIDAD
P. SANTOS, DOMINGO CHUA, TAN HUI NEE, MARIANO TAN ENG
LIAN, ESTATE OF BENITO TAN KEE HIONG (represented by
TARCIANA C. TAN), 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 CORP., ALLIED LEASING
AND FINANCE CORPORATION, ASIA BREWERY, INC., BASIC
HOLDINGS CORP., FOREMOST FARMS, INC., FORTUNE TOBACCO
CORP., GRANDSPAN DEVELOPMENT CORP., HIMMEL
INDUSTRIES, IRIS HOLDINGS AND DEVELOPMENT CORP., JEWEL
HOLDINGS, INC., MANUFACTURING SERVICES AND TRADE
CORP., MARANAW HOTELS AND RESORT CORP., NORTHERN
TOBACCO REDRYING PLANT, PROGRESSIVE FARMS, INC.,
PINEDAPCGRNMAN
SHAREHOLDINGS, INC., SIPALAY TRADING CORP., VIRGO
HOLDINGS & DEVELOPMENT CORP., and ATTY. ESTELITO P.
MENDOZA, respondents.
DECISION
PUNO, J.:
This case is prima impressiones and it is weighted with significance for
it concerns on one hand, the efforts of the Bar to upgrade the ethics of
lawyers in government service and on the other, its effect on the right of
government to recruit competent counsel to defend its interests.
In 1976, General Bank and Trust Company (GENBANK) encountered
financial difficulties. GENBANK had extended considerable financial
support to Filcapital Development Corporation causing it to incur daily
overdrawings on its current account with the Central Bank.[1] It was later
found by the Central Bank that GENBANK had approved various loans
to directors, officers, stockholders and related interests totaling P172.3
million, of which 59% was classified as doubtful and P0.505 million as
uncollectible.[2] As a bailout, the Central Bank extended emergency
loans to GENBANK which reached a total of P310 million.[3] Despite
the mega loans, GENBANK failed to recover from its financial woes. On
March 25, 1977, the Central Bank issued a resolution declaring
GENBANK insolvent and unable to resume business with safety to its
depositors, creditors and the general public, and ordering its
liquidation.[4] A public bidding of GENBANKs assets was held from
March 26 to 28, 1977, wherein the Lucio Tan group submitted the
winning bid.[5] Subsequently, former Solicitor General Estelito P.
Mendoza filed a petition with the then Court of First Instance praying
for the assistance and supervision of the court in GENBANKs
liquidation as mandated by Section 29 of Republic Act No. 265.
In February 1986, the EDSA I revolution toppled the Marcos government.
One of the first acts of President Corazon C. Aquino was to establish the
Presidential Commission on Good Government (PCGG) to recover the
alleged ill-gotten wealth of former President Ferdinand Marcos, his family
and his cronies. Pursuant to this mandate, the PCGG, on July 17, 1987,
filed with the Sandiganbayan a complaint for reversion,
reconveyance, restitution, accounting and damages against
respondents Lucio Tan, Carmen Khao Tan, Florencio T. Santos,
Natividad P. Santos, Domingo Chua, Tan Hui Nee, Mariano Tan Eng
Lian, Estate of Benito Tan Kee Hiong, Florencio N. Santos, Jr., Harry C.
Tan, Tan Eng Chan, Chung Poe Kee, Mariano Khoo, Manuel Khoo,
Miguel Khoo, Jaime Khoo, Elizabeth Khoo, Celso Ranola, William T.
Wong, Ernesto B. Lim, Benjamin T. Albacita, Willy Co, Allied Banking
Corporation (Allied Bank), Allied Leasing and Finance Corporation, Asia
Brewery, Inc., Basic Holdings Corp., Foremost Farms, Inc., Fortune
Tobacco Corporation, Grandspan Development Corp., Himmel
Industries, Iris Holdings and Development Corp., Jewel Holdings, Inc.,
Manufacturing Services and Trade Corp., Maranaw Hotels and Resort
Corp., Northern Tobacco Redrying Plant, Progressive Farms, Inc.,
Shareholdings, Inc., Sipalay Trading Corp., Virgo Holdings &
Development Corp., (collectively referred to herein as respondents
Tan, et al.), then President Ferdinand E. Marcos, Imelda R. Marcos,
Panfilo O. Domingo, Cesar Zalamea, Don Ferry and Gregorio
Licaros. The case was docketed as Civil Case No. 0005 of the Second
Division of theSandiganbayan.[6] In connection therewith, the PCGG
issued several writs of sequestration on properties allegedly acquired
by the above-named persons by taking advantage of their close
relationship and influence with former President Marcos.
Respondents Tan, et al. repaired to this Court and filed petitions
for certiorari, prohibition and injunction to nullify, among others, the writs
of sequestration issued by the PCGG.[7] After the filing of the parties
comments, this Court referred the cases to the Sandiganbayan for
proper disposition. These cases were docketed as Civil Case Nos.
0096-0099. In all these cases, respondents Tan, et al. were represented
by their counsel, former Solicitor General Estelito P. Mendoza, who has
then resumed his private practice of law.
Page 110
On February 5, 1991, the PCGG filed motions to
disqualify respondent Mendoza as counsel for respondents Tan, et al.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
with the Second Division of the Sandiganbayan in Civil Case Nos.
0005[8] and 0096-0099.[9] The motions alleged that respondent
Mendoza, as then Solicitor General[10] and counsel to Central
Bank, actively intervened in the liquidation of GENBANK, which was
subsequently acquired by respondents Tan, et al. and became Allied
Banking Corporation. Respondent Mendoza allegedly intervened in the
acquisition of GENBANK by respondents Tan, et al. when, in his capacity
as then Solicitor General, he advised the Central Banks officials on
the procedure to bring about GENBANKs liquidation and appeared as
counsel for the Central Bank in connection with its petition for assistance
in the liquidation of GENBANK which he filed with the Court of First
Instance (now Regional Trial Court) of Manila and was docketed as
Special Proceeding No. 107812. The motions to disqualify invoked Rule
6.03 of the Code of Professional Responsibility. Rule 6.03 prohibits
former government lawyers from accepting engagement or
employment in connection with any matter in which he had intervened
while in said service.
On April 22, 1991 the Second Division of the Sandiganbayan issued a
resolution denying PCGGs motion to disqualify respondent Mendoza in
Civil Case No. 0005.[11] It found that the PCGG failed to prove the
existence of an inconsistency between respondent Mendozas former
function as Solicitor General and his present employment as counsel of
the Lucio Tan group. It noted that respondent Mendoza did not take a
position adverse to that taken on behalf of the Central Bank during his
term as Solicitor General.[12] It further ruled that respondent Mendozas
appearance as counsel for respondents Tan, et al. was beyond the one-
year prohibited period under Section 7(b) of Republic Act No. 6713 since
he ceased to be Solicitor General in the year 1986. The said section
prohibits a former public official or employee from practicing his
profession in connection with any matter before the office he used to be
with within one year from his resignation, retirement or separation from
public office.[13] The PCGG did not seek any reconsideration of the
ruling.[14]
It appears that Civil Case Nos. 0096-0099 were transferred from
the Sandiganbayans Second Division to the Fifth Division.[15] In its
resolution dated July 11, 2001, the Fifth Division of
the Sandiganbayan denied the other PCGGs motion to disqualify
respondent Mendoza.[16] It adopted the resolution of its Second
Division dated April 22, 1991, and observed that the arguments were
the same in substance as the motion to disqualify filed in Civil Case No.
0005. The PCGG sought reconsideration of the ruling but its motion was
denied in its resolution dated December 5, 2001.[17]
Hence, the recourse to this Court by the PCGG assailing the resolutions
dated July 11, 2001 and December 5, 2001 of the Fifth Division of
the Sandiganbayan via a petition forcertiorari and prohibition under
Rule 65 of the 1997 Rules of Civil Procedure.[18] The PCGG alleged that
the Fifth Division acted with grave abuse of discretion amounting to
lack or excess of jurisdiction in issuing the assailed resolutions
contending that: 1) Rule 6.03 of the Code of Professional Responsibility
prohibits a former government lawyer from accepting employment in
connection with any matter in which he intervened; 2) the prohibition in
the Rule is not time-bound; 3) that Central Bank could not waive the
objection to respondent Mendozas appearance on behalf of the PCGG;
and 4) the resolution in Civil Case No. 0005 was interlocutory, thus res
judicata does not apply.[19]
The petition at bar raises procedural and substantive issues of law. In
view, however, of the import and impact of Rule 6.03 of the Code of
Professional Responsibility to the legal profession and the government,
we shall cut our way and forthwith resolve the substantive issue.
I sources of ethical guidance from the nineteenth century. Like the
Substantive Issue
The key issue is whether Rule 6.03 of the Code of Professional
Responsibility applies to respondent Mendoza. Again, the prohibition
states: A lawyer shall not, after leaving government service, accept
engagement or employment in connection with any matter in which he
had intervened while in the said service.
PINEDAPCGRNMAN
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 post-
revolutionary America did not differ markedly from those in England.
The colonies and early states used oaths, statutes, judicial oversight,
and procedural rules to govern attorney behavior. The difference from
England was in the pervasiveness and continuity of such regulation. The
standards set in England varied over time, but the variation in early
America was far greater. The American regulation fluctuated within a
single colony and differed from colony to colony. Many regulations had
the effect of setting some standards of conduct, but the regulation was
sporadic, leaving gaps in the substantive standards. Only three of the
traditional core duties can be fairly characterized as pervasive in the
formal, positive law of the colonial and post-revolutionary period: the
duties of litigation fairness, competency and reasonable fees.[20]
The nineteenth century has been termed the dark ages of legal
ethics in the United States. By mid-century, American legal reformers
were filling the void in two ways. First, David Dudley Field, the drafter of
the highly influential New York Field Code, introduced a new set of
uniform standards of conduct for lawyers. This concise statement of eight
statutory duties became law in several states in the second half of the
nineteenth century. At the same time, legal educators, such as David
Hoffman and George Sharswood, and many other lawyers were working
to flesh out the broad outline of a lawyer's duties. These reformers wrote
about legal ethics in unprecedented detail and thus brought a new level
of understanding to a lawyer's duties. A number of mid-nineteenth
century laws and statutes, other than the Field Code, governed lawyer
behavior. A few forms of colonial regulations e.g., the do no falsehood
oath and the deceit prohibitions -- persisted in some states. Procedural
law continued to directly, or indirectly, limit an attorney's litigation
behavior. The developing law of agency recognized basic duties of
competence, loyalty and safeguarding of client property. Evidence law
started to recognize with less equivocation the attorney-client privilege
and its underlying theory of confidentiality. Thus, all of the core duties,
with the likely exception of service to the poor, had some basis in formal
law. Yet, as in the colonial and early post-revolutionary periods, these
standards were isolated and did not provide a comprehensive statement
of a lawyer's duties. The reformers, by contrast, were more
comprehensive in their discussion of a lawyer's duties, and they actually
ushered a new era in American legal ethics.[21]
Toward the end of the nineteenth century, a new form of ethical
standards began to guide lawyers in their practice the bar association
code of legal ethics. The bar codes were detailed ethical standards
formulated by lawyers for lawyers. They combined the two primary
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
Page 111
codes became extremely popular that states adopted them as binding
rules of law. Critical to the development of the new codes was the re-
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
emergence of bar associations themselves. Local bar associations
formed sporadically during the colonial period, but they disbanded by the
early nineteenth century. In the late nineteenth century, bar associations
began to form again, picking up where their colonial predecessors had
left off. Many of the new bar associations, most notably the Alabama
State Bar Association and the American Bar Association, assumed on
the task of drafting substantive standards of conduct for their
members.[22]
In 1887, Alabama became the first state with a comprehensive bar
association code of ethics. The 1887 Alabama Code of Ethics was the
model for several states codes, and it was the foundation for the
American Bar Association's (ABA) 1908 Canons of Ethics.[23]
In 1917, the Philippine Bar found that the oath and duties of a lawyer
were insufficient to attain the full measure of public respect to which the
legal profession was entitled. In that year, the Philippine Bar Association
adopted as its own, Canons 1 to 32 of the ABA Canons of Professional
Ethics.[24]
As early as 1924, some ABA members have questioned the form and
function of the canons. Among their concerns was the revolving door or
the process by which lawyers and others temporarily enter government
service from private life and then leave it for large fees in private practice,
where they can exploit information, contacts, and influence garnered in
government service.[25] These concerns were classified as adverse-
interest conflicts and congruent-interest conflicts. Adverse-
interest conflicts exist where the matter in which the former
government lawyer represents a client in private practice is substantially
related to a matter that the lawyer dealt with while employed by the
government and the interests of the current and former are
adverse.[26] On the other hand, congruent-interest representation
conflicts are unique to government lawyers and apply primarily to
former government lawyers.[27] For several years, the ABA attempted to
correct and update the canons through new canons, individual
amendments and interpretative opinions. In 1928, the ABA amended one
canon and added thirteen new canons.[28] To deal with problems peculiar
to former government lawyers, Canon 36 was minted which disqualified
them both for adverse-interest conflicts and congruent-interest
representation conflicts.[29] The rationale for disqualification is rooted in a
concern that the government lawyers largely discretionary actions would
be influenced by the temptation to take action on behalf of the
government client that later could be to the advantage of parties who
might later become private practice clients.[30] Canon 36 provides, viz.:
36. Retirement from judicial position or public employment
A lawyer should not accept employment as an advocate in any matter
upon the merits of which he has previously acted in a judicial capacity.
A lawyer, having once held public office or having been in the
public employ should not, after his retirement, accept employment
in connection with any matter he has investigated or passed upon
while in such office or employ.
Over the next thirty years, the ABA continued to amend many of the
canons and added Canons 46 and 47 in 1933 and 1937, respectively.[31]
In 1946, the Philippine Bar Association again adopted as its own
Canons 33 to 47 of the ABA Canons of Professional Ethics.[32]
By the middle of the twentieth century, there was growing consensus
that the ABA Canons needed more meaningful revision. In 1964, the
ABA President-elect Lewis Powell asked for the creation of a committee
to study the adequacy and effectiveness of the ABA Canons. The
committee recommended that the canons needed substantial revision,
in part because the ABA Canons failed to distinguish between the
inspirational and the proscriptive and were thus unsuccessful in
enforcement. The legal profession in the United States likewise observed
thatCanon 36 of the ABA Canons of Professional Ethics resulted in
unnecessary disqualification of lawyers for negligible participation in
matters during their employment with the government.
The unfairness of Canon 36 compelled ABA to replace it in the 1969
ABA Model Code of Professional Responsibility.[33] The basic ethical
principles in the Code of Professional Responsibility were supplemented
PINEDAPCGRNMAN
by Disciplinary Rules that defined minimum rules of conduct to which the
lawyer must adhere.[34] In the case of Canon 9, DR 9-101(b)[35]became
the applicable supplementary norm. The drafting committee
reformulated the canons into the Model Code of Professional
Responsibility, and, in August of 1969, the ABA House of Delegates
approved the Model Code.[36]
Despite these amendments, legal practitioners remained unsatisfied with
the results and indefinite standards set forth by DR 9-101(b) and the
Model Code of Professional Responsibility as a whole. Thus, in August
1983, the ABA adopted new Model Rules of Professional
Responsibility. The Model Rules used the restatement format, where
the conduct standards were set-out in rules, with comments following
each rule. The new format was intended to give better guidance and
clarity for enforcement because the only enforceable standards were the
black letter Rules. The Model Rules eliminated the broad canons
altogether and reduced the emphasis on narrative discussion, by placing
comments after the rules and limiting 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]
In cadence with these changes, the Integrated Bar of the Philippines
(IBP) adopted a proposed Code of Professional Responsibility in
1980 which it submitted to this Court for approval. The Code was
drafted to reflect the local customs, traditions, and practices of the bar
and to conform with new realities. On June 21, 1988, this Court
promulgated the Code of Professional Responsibility.[39] Rule 6.03
of the Code of Professional Responsibility deals particularly with former
government lawyers, and provides, viz.:
Rule 6.03 A lawyer shall not, after leaving government service, accept
engagement or employment in connection with any matter in which he
had intervened while in said service.
Rule 6.03 of the Code of Professional Responsibility retained the general
structure of paragraph 2, Canon 36 of the Canons of Professional Ethics
but replaced the expansive phraseinvestigated and passed upon with
the word intervened. It is, therefore, properly applicable to
both adverse-interest conflicts and congruent-interest conflicts.
The case at bar does not involve the adverse interest aspect of Rule
6.03. Respondent Mendoza, it is conceded, has no adverse interest
problem when he acted as Solicitor General in Sp. Proc. No. 107812 and
later as counsel of respondents Tan, et al. in Civil Case No. 0005 and
Civil Case Nos. 0096-0099 before the Sandiganbayan.
Nonetheless, there remains the issue of whether there exists
a congruent-interest conflict sufficient to disqualify respondent
Mendoza from representing respondents Tan, et al.
I.B. The congruent interest aspect of Rule 6.03
The key to unlock Rule 6.03 lies in comprehending first, the meaning
of matter referred to in the rule and, second, the metes and bounds of
the intervention made by the former government lawyer on the matter.
The American Bar Association in its Formal Opinion 342, defined matter
as any discrete, isolatable act as well as identifiable transaction or
conduct involving a particular situation and specific party, and not
merely an act of drafting, enforcing or interpreting government or agency
procedures, regulations or laws, or briefing abstract principles of law.
Firstly, it is critical that we pinpoint the matter which was the subject of
intervention by respondent Mendoza while he was the Solicitor General.
The PCGG relates the following acts of respondent Mendoza as
constituting the matter where he intervened as a Solicitor
General, viz:[40]
The PCGGs Case for Atty. Mendozas Disqualification
The PCGG imputes grave abuse of discretion on the part of
the Sandiganbayan (Fifth Division) in issuing the assailed Resolutions
dated July 11, 2001 and December 5, 2001 denying the motion to
Page 112
disqualify Atty. Mendoza as counsel for respondents Tan, et al. The
PCGG insists that Atty. Mendoza, as then Solicitor General, actively
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
intervened in the closure of GENBANK by advising the Central Bank on
how to proceed with the said banks liquidation and even filing the petition
for its liquidation with the CFI of Manila.
As proof thereof, the PCGG cites the Memorandum dated March 29,
1977 prepared by certain key officials of the Central Bank, namely, then
Senior Deputy Governor Amado R. Brinas, then Deputy Governor Jaime
C. Laya, then Deputy Governor and General Counsel Gabriel C.
Singson, then Special Assistant to the Governor Carlota P. Valenzuela,
then Asistant to the Governor Arnulfo B. Aurellano and then Director of
Department of Commercial and Savings Bank Antonio T. Castro, Jr.,
where they averred that on March 28, 1977, they had a conference with
the Solicitor General (Atty. Mendoza), who advised them on how to
proceed with the liquidation of GENBANK. The pertinent portion of the
said memorandum states:
Immediately after said meeting, we had a conference with the Solicitor
General and he advised that the following procedure should be taken:
1. Management should submit a memorandum to the Monetary Board
reporting that studies and evaluation had been made since the last
examination of the bank as of August 31, 1976 and it is believed that the
bank can not be reorganized or placed in a condition so that it may be
permitted to resume business with safety to its depositors and creditors
and the general public.
2. If the said report is confirmed by the Monetary Board, it shall order the
liquidation of the bank and indicate the manner of its liquidation and
approve a liquidation plan.
3. The Central Bank shall inform the principal stockholders of Genbank
of the foregoing decision to liquidate the bank and the liquidation plan
approved by the Monetary Board.
4. The Solicitor General shall then file a petition in the Court of First
Instance reciting the proceedings which had been taken and praying the
assistance of the Court in the liquidation of Genbank.
The PCGG further cites the Minutes No. 13 dated March 29, 1977 of the
Monetary Board where it was shown that Atty. Mendoza was furnished
copies of pertinent documents relating to GENBANK in order to aid him
in filing with the court the petition for assistance in the banks liquidation.
The pertinent portion of the said minutes reads:
The Board decided as follows:
...
E. To authorize Management to furnish the Solicitor General with a copy
of the subject memorandum of the Director, Department of Commercial
and Savings Bank dated March 29, 1977, together with copies of:
1. Memorandum of the Deputy Governor, Supervision and Examination
Sector, to the Monetary Board, dated March 25, 1977, containing a report
on the current situation of Genbank;
2. Aide Memoire on the Antecedent Facts Re: General Bank and Trust
Co., dated March 23, 1977;
3. Memorandum of the Director, Department of Commercial and Savings
Bank, to the Monetary Board, dated March 24, 1977, submitting,
pursuant to Section 29 of R.A. No. 265, as amended by P.D. No. 1007,
a repot on the state of insolvency of Genbank, together with its
attachments; and
4. Such other documents as may be necessary or needed by the Solicitor
General for his use in then CFI-praying the assistance of the Court in the
liquidation of Genbank.
Beyond doubt, therefore, the matter or the act of respondent Mendoza
as Solicitor General involved in the case at bar is advising the Central
Bank, on how to proceed with the said banks liquidation and even filing
the petition for its liquidation with the CFI of Manila. In fine, the Court
should resolve whether his act of advising the Central Bank on the legal
procedure to liquidate GENBANK is included within the concept
of matter under Rule 6.03. The procedure of liquidation is given in
black and white in Republic Act No. 265, section 29, viz:
The provision reads in part:
SEC. 29. Proceedings upon insolvency. Whenever, upon examination by
the head of the appropriate supervising or examining department or his
examiners or agents into the condition of any bank or non-bank financial
PINEDAPCGRNMAN
intermediary performing quasi-banking functions, it shall be disclosed
that the condition of the same is one of insolvency, or that its continuance
in business would involve probable loss to its depositors or creditors, it
shall be the duty of the department head concerned forthwith, in writing,
to inform the Monetary Board of the facts, and the Board may, upon
finding the statements of the department head to be true, forbid the
institution to do business in the Philippines and shall designate an official
of the Central Bank or a person of recognized competence in banking or
finance, as receiver to immediately take charge of its assets and
liabilities, as expeditiously as possible collect and gather all the assets
and administer the same for the benefit of its creditors, exercising all the
powers necessary for these purposes including, but not limited to,
bringing suits and foreclosing mortgages in the name of the bank or non-
bank financial intermediary performing quasi-banking functions.
...
If the Monetary Board shall determine and confirm within the said period
that the bank or non-bank financial intermediary performing quasi-
banking functions is insolvent or cannot resume business with safety to
its depositors, creditors and the general public, it shall, if the public
interest requires, order its liquidation, indicate the manner of its
liquidation and approve a liquidation plan. The Central Bank shall, by the
Solicitor General, file a petition in the Court of First Instance reciting the
proceedings which have been taken and praying the assistance of the
court in the liquidation of such institution. The court shall have jurisdiction
in the same proceedings to adjudicate disputed claims against the bank
or non-bank financial intermediary performing quasi-banking functions
and enforce individual liabilities of the stockholders and do all that is
necessary to preserve the assets of such institution and to implement
the liquidation plan approved by the Monetary Board. The 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 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
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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
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LEGAL ETHICS
inability to pay of an otherwise non-insolvent bank or non-bank financial
intermediary performing quasi-banking functions caused by
extraordinary demands induced by financial panic commonly evidenced
by a run on the bank or non-bank financial intermediary performing
quasi-banking functions in the banking or financial community.
The appointment of a conservator under Section 28-A of this Act or the
appointment of a receiver under this Section shall be vested exclusively
with the Monetary Board, the provision of any law, general or special, to
the contrary notwithstanding. (As amended by PD Nos. 72, 1007, 1771
& 1827, Jan. 16, 1981)
We hold that this advice given by respondent Mendoza on the procedure
to liquidate GENBANK is not the matter contemplated by Rule 6.03 of
the Code of Professional Responsibility. ABA Formal Opinion No. 342
is clear as daylight in stressing that the drafting, enforcing or
interpreting government or agency procedures, regulations or laws, or
briefing abstract principles of law are acts which do not fall within the
scope of the term matter and cannot disqualify.
Secondly, it can even be conceded for the sake of argument that the
above act of respondent Mendoza falls within the definition of matter per
ABA Formal Opinion No. 342. Be that as it may, the said act of
respondent Mendoza which is the matter involved in Sp. Proc. No.
107812 is entirely different from the matter involved in Civil Case No.
0096. Again, the plain facts speak for themselves. It is given that
respondent Mendoza had nothing to do with the decision of the Central
Bank to liquidate GENBANK. It is also given that he did not participate in
the sale of GENBANK to Allied Bank. The matter where he got himself
involved was in informing Central Bank on the procedure provided by
law to liquidate GENBANK thru the courts and in filing the necessary
petition in Sp. Proc. No. 107812 in the then Court of First Instance. The
subject matter of Sp. Proc. No. 107812, therefore, is not the same
nor is related to but is different from the subject matter in Civil Case
No. 0096. Civil Case No. 0096 involves the sequestration of the
stocks owned by respondents Tan, et al., in Allied Bank on the alleged
ground that they are ill-gotten. The case does not involve the liquidation
of GENBANK. Nor does it involve the sale of GENBANK to Allied Bank.
Whether the shares of stock of the reorganized Allied Bank are ill-gotten
is far removed from the issue of the dissolution and liquidation of
GENBANK. GENBANK was liquidated by the Central Bank due, among
others, to the alleged banking malpractices of its owners and officers. In
other words, the legality of the liquidation of GENBANK is not an issue
in the sequestration cases. Indeed, the jurisdiction of the PCGG does
not include the dissolution and liquidation of banks. It goes without saying
that Code 6.03 of the Code of Professional Responsibility cannot apply
to respondent Mendoza because his alleged intervention while a
Solicitor General in Sp. Proc. No. 107812 is an intervention on a
matter different from the matter involved in Civil Case No. 0096.
Thirdly, we now slide to the metes and bounds of
the intervention contemplated by Rule 6.03. Intervene means, viz.:
1: to enter or appear as an irrelevant or extraneous feature or
circumstance . . . 2: to occur, fall, or come in between points of time or
events . . . 3: to come in or between by way of hindrance or modification:
INTERPOSE . . . 4: to occur or lie between two things (Paris, where the
same city lay on both sides of an intervening river . . .)[41]
On the other hand, intervention is defined as:
1: the act or fact of intervening: INTERPOSITION; 2: interference that
may affect the interests of others.[42]
There are, therefore, two possible interpretations of the word intervene.
Under the first interpretation, intervene includes participation in a
proceeding even if the intervention is irrelevant or has no effect or little
influence.[43] Under the second interpretation, intervene only includes
an act of a person who has the power to influence the subject
proceedings.[44]We hold that this second meaning is more appropriate to
give to the word intervention under Rule 6.03 of the Code of Professional
Responsibility in light of its history. The evils sought to be remedied by
the Rule do not exist where the government lawyer does an act which
can be considered as innocuous such as x x x drafting, enforcing or
PINEDAPCGRNMAN
interpreting government or agency procedures, regulations or laws, or
briefing abstract principles of law.
In fine, the intervention cannot be insubstantial and insignificant.
Originally, Canon 36 provided that a former government lawyer should
not, after his retirement, accept employment in connection with any
matter which he has investigated or passed upon while in such office
or employ. As aforediscussed, the broad sweep of the phrase which he
has investigated or passed upon resulted in unjust disqualification of
former government lawyers. The 1969 Code restricted its latitude, hence,
in DR 9-101(b), the prohibition extended only to a matter in which the
lawyer, while in the government service, had substantial
responsibility. The 1983 Model Rules further constricted the reach of
the rule. MR 1.11(a) provides that a lawyer shall not represent a private
client in connection with a matter in which the lawyer participated
personally and substantially as a public officer or employee.
It is, however, alleged that the intervention of respondent Mendoza in
Sp. Proc. No. 107812 is significant and substantial. We disagree. For
one, the petition in the special proceedings is an initiatory pleading,
hence, it has to be signed by respondent Mendoza as the then sitting
Solicitor General. For another, the record is arid as to
the actual participation of respondent Mendoza in the subsequent
proceedings. Indeed, the case was in slumberville for a long number of
years. None of the parties pushed for its early termination. Moreover, we
note that the petition filed merely seeks the assistance of the court in
the liquidation of GENBANK. The principal role of the court in this type
of proceedings is to assist the Central Bank in determining claims of
creditors against the GENBANK. The role of the court is not strictly as
a court of justice but as an agent to assist the Central Bank in
determining the claims of creditors. In such a proceeding, the
participation of the Office of the Solicitor General is not that of the usual
court litigator protecting the interest of government.
II
Balancing Policy Considerations
To be sure, Rule 6.03 of our Code of Professional Responsibility
represents a commendable effort on the part of the IBP to upgrade the
ethics of lawyers in the government service. As aforestressed, it is a
take-off from similar efforts especially by the ABA which have not been
without difficulties. To date, the legal profession in the United States is
still fine tuning its DR 9-101(b) rule.
In fathoming the depth and breadth of Rule 6.03 of our Code of
Professional Responsibility, the Court took account of various policy
considerations to assure that its interpretation and application to the
case at bar will achieve its end without necessarily prejudicing other
values of equal importance. Thus, the rule was not interpreted to cause
a chilling effect on government recruitment of able legal talent. At
present, it is already difficult for government to match compensation
offered by the private sector and it is unlikely that government will be able
to reverse that situation. The observation is not inaccurate that the only
card that the government may play to recruit lawyers is have them defer
present income in return for the experience and contacts that can later
be exchanged for higher income in private practice.[45] Rightly, Judge
Kaufman warned that the sacrifice of entering government service would
be too great for most men to endure should ethical rules prevent them
from engaging in the practice of a technical specialty which they devoted
years in acquiring and cause the firm with which they become associated
to be disqualified.[46] Indeed, to make government service more difficult
to exit can only make it less appealing to enter.[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
Page 114
the opponent, and observed that the tactic was so prevalent in large civil
cases in recent years as to prompt frequent judicial and academic
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LEGAL ETHICS
commentary.[48] Even the United States Supreme Court found no quarrel
with the Court of Appeals description of disqualification motions as a
dangerous game.[49] In the case at bar, the new attempt to disqualify
respondent Mendoza is difficult to divine. The disqualification of
respondent Mendoza has long been a dead issue. It was resuscitated
after the lapse of many years and only after PCGG has lost many legal
incidents in the hands of respondent Mendoza. For a fact, the recycled
motion for disqualification in the case at bar was filed more than four
years after the filing of the petitions for certiorari, prohibition and
injunction with the Supreme Court which were subsequently remanded
to the Sandiganbayan and docketed as Civil Case Nos. 0096-
0099.[50] At the very least, the circumstances under which the motion to
disqualify in the case at bar were refiled put petitioners motive as highly
suspect.
Similarly, the Court in interpreting Rule 6.03 was not unconcerned
with the prejudice to the client which will be caused by its
misapplication. It cannot be doubted that granting a disqualification
motion causes the client to lose not only the law firm of choice, but
probably an individual lawyer in whom the client has confidence.[51] The
client with a disqualified lawyer must start again often without the benefit
of the work done by the latter.[52] The effects of this prejudice to the right
to choose an effective counsel cannot be overstated for it can result in
denial of due process.
The Court has to consider also the possible adverse effect of a
truncated reading of the rule on the official independence of
lawyers in the government service. According to Prof. Morgan: An
individual who has the security of knowing he or she can find private
employment upon leaving the government is free to work vigorously,
challenge official positions when he or she believes them to be in error,
and resist illegal demands by superiors. An employee who lacks this
assurance of private employment does not enjoy such freedom.[53] He
adds: Any system that affects the right to take a new job affects the ability
to quit the old job and any limit on the ability to quit inhibits official
independence.[54] The case at bar involves the position of Solicitor
General, the office once occupied by respondent Mendoza. It cannot be
overly stressed that the position of Solicitor General should be
endowed with a great degree of independence. It is this
independence that allows the Solicitor General to recommend acquittal
of the innocent; it is this independence that gives him the right to refuse
to defend officials who violate the trust of their office. Any undue
dimunition of the independence of the Solicitor General will have a
corrosive effect on the rule of law.
No less significant a consideration is the deprivation of the former
government lawyer of the freedom to exercise his profession. Given
the current state of our law, the disqualification of a former government
lawyer may extend to all members of his law firm.[55] Former government
lawyers stand in danger of becoming the lepers of the legal
profession.
It is, however, proffered that the mischief sought to be remedied by Rule
6.03 of the Code of Professional Responsibility is the possible
appearance of impropriety and loss of public confidence in
government. But as well observed, the accuracy of gauging public
perceptions is a highly speculative exercise at best[56] which can lead to
untoward results.[57] No less than Judge Kaufman doubts that the
lessening of restrictions as to former government attorneys will have any
detrimental effect on that free flow of information between the
government-client and its attorneys which the canons seek to
protect.[58] Notably, the appearance of impropriety theory has been
rejected in the 1983 ABA Model Rules of Professional
Conduct[59]and some courts have abandoned per se disqualification
based on Canons 4 and 9 when an actual conflict of interest exists, and
demand an evaluation of the interests of the defendant, government, the
witnesses in the case, and the public.[60]
It is also submitted that the Court should apply Rule 6.03 in all its
strictness for it correctly disfavors lawyers who switch sides. It is
claimed that switching sides carries the danger that former government
PINEDAPCGRNMAN
employee may compromise confidential official information in the
process. But this concern does not cast a shadow in the case at bar. As
afore-discussed, the act of respondent Mendoza in informing the Central
Bank on the procedure how to liquidate GENBANK is a different
matter from the subject matter of Civil Case No. 0005 which is about the
sequestration of the shares of respondents Tan, et al., in Allied Bank.
Consequently, the danger that confidential official information might be
divulged is nil, if not inexistent. To be sure, there are no inconsistent
sides to be bothered about in the case at bar. For there is no question
that in lawyering for respondents Tan, et al., respondent Mendoza is not
working against the interest of Central Bank. On the contrary, he is
indirectly defending the validity of the action of Central Bank in liquidating
GENBANK and selling it later to Allied Bank. Their interests coincide
instead of colliding. It is for this reason that Central Bank offered no
objection to the lawyering of respondent Mendoza in Civil Case No. 0005
in defense of respondents Tan, et al. There is no switching of sides
for no two sides are involved.
It is also urged that the Court should consider that Rule 6.03 is intended
to avoid conflict of loyalties, i.e., that a government employee might be
subject to a conflict of loyalties while still in government service.[61] The
example given by the proponents of this argument is that a lawyer who
plans to work for the company that he or she is currently charged with
prosecuting might be tempted to prosecute less vigorously.[62] In the
cautionary words of the Association of the Bar Committee in 1960: The
greatest public risks arising from post employment conduct may well
occur during the period of employment through the dampening of
aggressive administration of government policies.[63] Prof. Morgan,
however, considers this concern as probably excessive.[64] He opines x
x x it is hard to imagine that a private firm would feel secure hiding
someone who had just been disloyal to his or her last client the
government. Interviews with lawyers consistently confirm that law firms
want the best government lawyers the ones who were hardest to beat
not the least qualified or least vigorous advocates.[65] But again, this
particular concern is a non factor in the case at bar. There is no
charge against respondent Mendoza that he advised Central Bank on
how to liquidate GENBANK with an eye in later defending respondents
Tan, et al. of Allied Bank. Indeed, he continues defending both the
interests of Central Bank and respondents Tan, et al. in the above cases.
Likewise, the Court is nudged to consider the need to curtail what is
perceived as the excessive influence of former officials or their
clout.[66] Prof. Morgan again warns against extending this concern too
far. He explains the rationale for his warning, viz: Much of what appears
to be an employees influence may actually be the power or authority of
his or her position, power that evaporates quickly upon departure from
government x x x.[67] More, he contends that the concern can
be demeaning to those sitting in government. To quote him further: x x
x The idea that, present officials make significant decisions based on
friendship rather than on the merit says more about the present officials
than about their former co-worker friends. It implies a lack of will or talent,
or both, in federal officials that does not seem justified or intended, and
it ignores the possibility that the officials will tend to disfavor their friends
in order to avoid even the appearance of favoritism.[68]
III
The question of fairness
Mr. Justices Panganiban and Carpio are of the view, among others, that
the congruent interest prong of Rule 6.03 of the Code of Professional
Responsibility should be subject to a prescriptive period. Mr. Justice
Tinga opines that the rule cannot apply retroactively to respondent
Mendoza. Obviously, and rightly so, they are disquieted by the fact that
(1) when respondent Mendoza was the Solicitor General, Rule 6.03 has
not yet adopted by the IBP and approved by this Court, and (2) the bid
to disqualify respondent Mendoza was made after the lapse of time
whose length cannot, by any standard, qualify as reasonable. At bottom,
the point they make relates to the unfairness of the rule if applied without
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any prescriptive period and retroactively, at that. Their concern is
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LEGAL ETHICS
legitimate and deserves to be initially addressed by the IBP and our
Committee on Revision of the Rules of Court.
IN VIEW WHEREOF, the petition assailing the resolutions dated July 11,
2001 and December 5, 2001 of the Fifth Division of
the Sandiganbayan in Civil Case Nos. 0096-0099 is denied.
No cost.
SO ORDERED.
A.C. No. 6707 March 24, 2006
GISELA HUYSSEN, Complainant,
vs.
ATTY. FRED L. GUTIERREZ, Respondent.
DECISION
PER CURIAM:
This treats of a Complaint1 for Disbarment filed by Gisela Huyssen
against respondent Atty. Fred L. Gutierrez.
Complainant alleged that in 1995, while respondent was still connected
with the Bureau of Immigration and Deportation (BID), she and her three
sons, who are all American citizens, applied for Philippine Visas under
Section 13[g] of the Immigration Law. Respondent told complainant that
in order that their visa applications will be favorably acted upon by the
BID they needed to deposit a certain sum of money for a period of one
year which could be withdrawn after one year. Believing that the deposit
was indeed required by law, complainant deposited with respondent on
six different occasions from April 1995 to April 1996 the total amount of
US$20,000. Respondent prepared receipts/vouchers as proofs that he
received the amounts deposited by the complainant but refused to give
her copies of official receipts despite her demands. After one year,
complainant demanded from respondent the return of US$20,000 who
assured her that said amount would be returned. When respondent failed
to return the sum deposited, the World Mission for Jesus (of which
complainant was a member) sent a demand letter to respondent for the
immediate return of the money. In a letter dated 1 March 1999,
respondent promised to release the amount not later than 9 March 1999.
Failing to comply with his promise, the World Mission for Jesus sent
another demand letter. In response thereto, respondent sent
complainant a letter dated 19 March 1999 explaining the alleged reasons
for the delay in the release of deposited amount. He enclosed two blank
checks postdated to 6 April and 20 April 1999 and authorized
complainant to fill in the amounts. When complainant deposited the
postdated checks on their due dates, the same were dishonored
because respondent had stopped payment on the same. Thereafter,
respondent, in his letter to complainant dated 25 April 1999, explained
the reasons for stopping payment on the checks, and gave complainant
five postdated checks with the assurance that said checks would be
honored. Complainant deposited the five postdated checks on their due
dates but they were all dishonored for having been drawn against
insufficient funds or payment thereon was ordered stopped by
respondent. After respondent made several unfulfilled promises to return
the deposited amount, complainant referred the matter to a lawyer who
sent two demand letters to respondent. The demand letters remained
unheeded.
Thus, a complaint2 for disbarment was filed by complainant in the
Commission on Bar Discipline of the Integrated Bar of the Philippines
(IBP).
On 15 November 2000, Victor C. Fernandez, Director for Bar Discipline,
required3 respondent to submit his answer within 15 days from receipt
thereof.
In his Counter-Affidavit dated 2 July 2001,4 respondent denied the
allegations in the complaint claiming that having never physically
received the money mentioned in the complaint, he could not have
appropriated or pocketed the same. He said the amount was used as
payment for services rendered for obtaining the permanent visas in the
Philippines. Respondent explained thus:
PINEDAPCGRNMAN
a) Through a close-friend, Jovie Galaraga, a Pastor and likewise a friend
of the complainant, the latter was introduced to me at my office at the
Bureau of Immigration with a big problem concerning their stay in the
Philippines, herself and three sons, one of which is already of major age
while the two others were still minors then. Their problem was the fact
that since they have been staying in the Philippines for almost ten (10)
years as holders of missionary visas (9G) they could no longer extend
their said status as under the law and related polic[i]es of the
government, missionary visa holders could only remain as such for ten
(10) years after which they could no longer extend their said status and
have to leave the country.
b) Studying their case and being U.S. Citizen (sic), I advised them that
they better secure a permanent visa under Section 3 of the Philippine
Immigration Law otherwise known as Quota Visa and thereafter,
provided them with list of the requirements in obtaining the said visa, one
of which is that the applicant must have a $40,000 deposited in the bank.
I also inform that her son Marcus Huyssen, who was already of major
age, has to have the same amount of show money separate of her
money as he would be issued separate visa, while her two minor children
would be included as her dependents in her said visa application. I
advised them to get a lawyer (sic), complainant further requested me to
refer to her to a lawyer to work for their application, which I did and
contacted the late Atty. Mendoza, an Immigration lawyer, to do the job
for the complainant and her family.
c) The application was filed, processed and followed-up by the said Atty.
Mendoza until the same was finished and the corresponding permanent
visa were obtained by the complainant and her family. Her son Marcus
Huyssen was given an independent permanent visa while the other two
were made as dependents of the complainant. In between the
processing of the papers and becoming very close to the complainant, I
became the intermediary between complainant and their counsel so
much that every amount that the latter would request for whatever
purpose was coursed through me which request were then transmitted
to the complainant and every amount of money given by the complainant
to their counsel were coursed thru me which is the very reason why my
signature appears in the vouchers attached in the complaint-affidavit;
d) That as time goes by, I noticed that the amount appeared to be huge
for services of a lawyer that I myself began to wonder why and, to satisfy
my curiosity, I met Atty. Mendoza and inquired from him regarding the
matter and the following facts were revealed to me:
1) That what was used by the complainant as her show money from the
bank is not really her money but money of World Mission for Jesus, which
therefore is a serious violation of the Immigration Law as there was a
misrepresentation. This fact was confirmed later when the said entity
sent their demand letter to the undersigned affiant and which is attached
to the complaint-affidavit;
2) That worst, the same amount used by the complainant, was the very
same amount used by her son Marcus Huyssen, in obtaining his
separate permanent visa. These acts of the complainant and her son
could have been a ground for deportation and likewise constitute criminal
offense under the Immigration Law and the Revised Penal Code. These
could have been the possible reason why complainant was made to pay
for quite huge amount.
e) That after they have secured their visas, complainant and her family
became very close to undersigned and my family that I was even invited
to their residence several times;
f) However after three years, complainant demanded the return of their
money given and surprisingly they want to recover the same from me.
By twist of fate, Atty. Mendoza is no longer around, he died sometime
1997;
g) That it is unfortunate that the real facts of the matter is now being
hidden and that the amount of money is now being sought to be
recovered from me;
h) That the fact is I signed the vouchers and being a lawyer I know the
Page 116
consequences of having signed the same and therefore I had to answer
for it and pay. I tried to raised the fund needed but up to the present my
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LEGAL ETHICS
standby loan application has not been released and was informed that
the same would only be forthcoming second week of August. The same
should have been released last March but was aborted due to prevalent
condition. The amount to be paid, according to the complainant has now
become doubled plus attorneys fees of P200,000.00.
Complainant submitted her evidence on 4 September 2002 and April
2003, and filed her Formal Offer of Evidence on 25 August 2003.
On several occasions, the complaint was set for reception of
respondents evidence but the scheduled hearings (11 settings) were all
reset at the instance of the respondent who was allegedly out of the
country to attend to his clients needs. Reception of respondents
evidence was scheduled for the last time on 28 September 2004 and
again respondent failed to appear, despite due notice and without just
cause.
On 5 November 2004, Investigating Commissioner Milagros V. San Juan
submitted her report5 recommending the disbarment of respondent. She
justified her recommendation in this manner:
At the outset it should be noted that there is no question that respondent
received the amount of US$20,000 from complainant, as respondent
himself admitted that he signed the vouchers (Annexes A to F of
complainant) showing his receipt of said amount from complainant.
Respondent however claims that he did not appropriate the same for
himself but that he delivered the said amount to a certain Atty. Mendoza.
This defense raised by respondent is untenable considering the
documentary evidence submitted by complainant. On record is the 1
March 1999 letter of respondent addressed to the World Mission for
Jesus (Annex H of Complaint) where he stated thus:
"I really understand your feelings on the delay of the release of the
deposit but I repeat, nobody really intended that the thing would happen
that way. Many events were the causes of the said delay particularly the
death of then Commissioner L. Verceles, whose sudden death prevented
us the needed papers for the immediate release. It was only from
compiling all on the first week of January this year, that all the said
papers were recovered, hence, the process of the release just started
though some important papers were already finished as early as the last
quarter of last year. We are just going through the normal standard
operating procedure and there is no day since January that I do not make
any follow ups on the progress of the same."
and his letter dated 19 March 1999 (Annex L of Complaint) where he
stated thus:
"I am sending you my personal checks to cover the refund of the amount
deposited by your good self in connection with the procurement of your
permanent visa and that of your family. It might take some more time
before the Bureau could release the refund as some other pertinent
papers are being still compiled are being looked at the files of the late
Commissioner Verceles, who approved your visa and who died of heart
attack. Anyway, I am sure that everything would be fine later as all the
documents needed are already intact. This is just a bureaucratic delay."
From the above letters, respondent makes it appear that the US$20,000
was officially deposited with the Bureau of Immigration and Deportation.
However, if this is true, how come only Petty Cash Vouchers were issued
by respondent to complainant to prove his receipt of the said sum and
official receipts therefore were never issued by the said Bureau? Also,
why would respondent issue his personal checks to cover the return of
the money to complainant if said amount was really officially deposited
with the Bureau of Immigration? All these actions of respondent point to
the inescapable conclusion that respondent received the money from
complainant and appropriated the same for his personal use. It should
also be noted that respondent has failed to establish that the "late Atty.
Mendoza" referred to in his Counter-Affidavit really exists. There is not
one correspondence from Atty. Mendoza regarding the visa application
of complainant and his family, and complainant has also testified that she
never met this Atty. Mendoza referred to by respondent.
Considering that respondent was able to perpetrate the fraud by taking
advantage of his position with the Board of Special Inquiry of the Bureau
of Immigration and Deportation, makes it more reprehensible as it has
PINEDAPCGRNMAN
caused damage to the reputation and integrity of said office. It is
submitted that respondent has violated Rule 6.02 of Canon 6 of the Code
of Professional Responsibility which reads:
"A lawyer in the government service shall not use his public position to
promote or advance his private interests, nor allow the latter to interfere
with his public duties."
On 4 November 2004, the IBP Board of Governors approved6 the
Investigating Commissioners report with modification, thus:
RESOLVED to ADOPT and APPROVE, as it hereby ADOPTED and
APPROVED, with modification, the Report and Recommendation of the
Investigating Commissioner of the above-entitled case, herein made part
of this Resolution as Annex "A"; and, finding the recommendation fully
supported by the evidence on record and applicable laws and rules, and
considering respondents violation of Rule 6.02 of Canon 6 of the Code
of Professional Responsibility, Atty. Fred L. Gutierrez is hereby
DISBARRED from the practice of law and ordered to return the amount
with legal interest from receipt of the money until payment. This case
shall be referred to the Office of the Ombudsman for prosecution for
violation of Anti-Graft and Corrupt Practices Acts and to the Department
of Justice for appropriate administrative action.
We agree with the IBP Board of Governors that respondent should be
severely sanctioned.
We begin with the veritable fact that lawyers in government service in
the discharge of their official task have more restrictions than lawyers in
private practice. Want of moral integrity is to be more severely
condemned in a lawyer who holds a responsible public office.7
It is undisputed that respondent admitted8 having received the
US$20,000 from complainant as shown by his signatures in the petty
cash vouchers9 and receipts10 he prepared, on the false representation
that that it was needed in complainants application for visa with the BID.
Respondent denied he misappropriated the said amount and interposed
the defense that he delivered it to a certain Atty. Mendoza who assisted
complainant and children in their application for visa in the BID.11 Such
defense remains unsubstantiated as he failed to submit evidence on the
matter. While he claims that Atty. Mendoza already died, he did not
present the death certificate of said Atty. Mendoza. Worse, the action of
respondent in shifting the blame to someone who has been naturally
silenced by fate, is not only impudent but downright ignominious. When
the integrity of a member of the bar is challenged, it is not enough that
he deny the charges against him; he must meet the issue and overcome
the evidence against him.12 He must show proof that he still maintains
that degree of morality and integrity which at all times is expected of him.
In the case at bar, respondent clearly fell short of his duty. Records show
that even though he was given the opportunity to answer the charges
and controvert the evidence against him in a formal investigation, he
failed, without any plausible reason, to appear several times whenever
the case was set for reception of his evidence despite due notice.
The defense of denial proferred by respondent is, thus, not convincing.
It is settled that denial is inherently a weak defense. To be believed, it
must be buttressed by a strong evidence of non-culpability; otherwise,
such denial is purely self-serving and is with nil evidentiary value.
When respondent issued the postdated checks as his moral obligation,
he indirectly admitted the charge. Such admissions were also apparent
in the following letters of respondent to complainant:
1) Letter13 dated 01 March 1992, pertinent portion of which reads:
Be that as it may, may I assure you for the last time that the said deposit
is forthcoming, the latest of which is 09 March 1999. Should it not be
released on said date, I understand to pay the same to you out of my
personal money on said date. No more reasons and no more alibis. Send
somebody here at the office on that day and the amount would be given
to you wether (sic) from the Bureau or from my own personal money.
2) Letter14 dated 19 March 1999, reads in part:
I am sending you my personal checks to cover the refund of the amount
deposited by your goodself in connection with the procurement of your
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permanent visa and that of your family.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
It might take some more time before the Bureau could release the refund
as some other pertinent papers are still being compiled and are being
looked at the files of the late Commissioner Verceles, who approved your
visa and who died of heart attack. Anyway, I am sure that everything
would be fine later as all the documents needed are already intact. This
is just a bureaucratic delay.
xxxx
As you would see, I have to pay you in peso. I have issued you 2 checks,
one dated April 6, 1999 and the other one dated April 20, 1999. I leave
the amount vacant because I would want you to fill them up on their due
dates the peso equivalent to $10,000 respectively. This is to be sure that
the peso equivalent of your P20,000 would be well exchanged. I have
postdated them to enable me to raise some more pesos to cover the
whole amount but dont worry as the Lord had already provided me the
means.
3) Letter15 dated 25 April 1999 provides:
Anyway, let me apologize for all these troubles. You are aware that I
have done my very best for the early return of your money but the return
is becoming bleak as I was informed that there are still papers lacking.
When I stopped the payment of the checks I issued, I was of the
impression that everything is fine, but it is not. I guess it is time for me to
accept the fact that I really have to personally return the money out of
my own. The issue should stop at my end. This is the truth that I must
face. It may hurt me financially but it would set me free from worries and
anxieties.
I have arranged for a loan from money lenders and was able to secure
one last Saturday the releases of which are on the following:
May 4, 1999- 200,000
May 11, 1999 -200,000
May 20, 1999-200,000
June 4, 1999-200,000
I have given my property (lot situated in the province) as my collateral.
I am therefore putting an end to this trouble. I am issuing four checks
which I assure you will be sufficiently funded on their due dates by reason
of my aforestated loans. Just bear with me for the last time, if any of
these checks, is returned, dont call me anymore. Just file the necessary
action against me, I just had to put an end to this matter and look forward.
xxx
4) Letter16 dated 12 May 1999, which reads:
The other day I deposited the amount of P289,000 to the bank to cover
the first check I issued. In fact I stopped all payments to all other checks
that are becoming due to some of my creditors to give preference to the
check I issued to you.
This morning when I went to the Bank, I learned that the bank instead of
returning the other checks I requested for stop payment - instead
honored them and mistakenly returned your check. This was a very big
surprise to me and discouragement for I know it would really upset you.
In view of this I thought of sending you the amount of P200,000 in cash
which I initially plan to withdraw from the Bank. However, I could not
entrust the same amount to the bearer nor can I bring the same to your
place considering that its quite a big amount. I am just sending a check
for you to immediately deposit today and I was assured by the bank that
it would be honored this time.
Normally, this is not the actuation of one who is falsely accused of
appropriating the money of another. As correctly observed by the
Investigating Commissioner, respondent would not have issued his
personal checks if said amount were officially deposited with the BID.
This is an admission of misconduct.
Respondents act of asking money from complainant in consideration of
the latters pending application for visas is violative of Rule 1.0117 of the
Code of Professional Responsibility, which prohibits members of the Bar
from engaging or participating in any unlawful, dishonest, or deceitful
acts. Moreover, said acts constitute a breach of Rule 6.0218 of the Code
which bars lawyers in government service from promoting their private
interest. Promotion of private interest includes soliciting gifts or anything
of monetary value in any transaction requiring the approval of his office
PINEDAPCGRNMAN
or which may be affected by the functions of his office.19 Respondents
conduct in office betrays the integrity and good moral character required
from all lawyers, especially from one occupying a high public office. A
lawyer in public office is expected not only to refrain from any act or
omission which might tend to lessen the trust and confidence of the
citizenry in government; he must also uphold the dignity of the legal
profession at all times and observe a high standard of honesty and fair
dealing. Otherwise said, a lawyer in government service is a keeper of
the public faith and is burdened with high degree of social responsibility,
perhaps higher than his brethren in private practice.
In a desperate attempt to put up a smoke or to camouflage his misdeed,
he went on committing another by issuing several worthless checks,
thereby compounding his case.
In a recent case, we have held that the issuance of worthless checks
constitutes gross misconduct,20 as the effect "transcends the private
interests of the parties directly involved in the transaction and touches
the interests of the community at large. The mischief it creates is not only
a wrong to the payee or holder, but also an injury to the public since the
circulation of valueless commercial papers can very well pollute the
channels of trade and commerce, injure the banking system and
eventually hurt the welfare of society and the public interest. Thus,
paraphrasing Blacks definition, a drawer who issues an unfunded check
deliberately reneges on his private duties he owes his fellow men or
society in a manner contrary to accepted and customary rule of right and
duty, justice, honesty or good morals."21
Consequently, we have held that the act of a person in issuing a check
knowing at the time of the issuance that he or she does not have
sufficient funds in, or credit with, the drawee bank for the payment of the
check in full upon its presentment, is also a manifestation of moral
turpitude.22
Respondents acts are more despicable. Not only did he misappropriate
the money of complainant; worse, he had the gall to prepare receipts
with the letterhead of the BID and issued checks to cover up his
misdeeds. Clearly, he does not deserve to continue, being a member of
the bar.
Time and again, we have declared that the practice of law is a noble
profession. It is a special privilege bestowed only upon those who are
competent intellectually, academically and morally. A lawyer must at all
times conduct himself, especially in his dealings with his clients and the
public at large, with honesty and integrity in a manner beyond reproach.
He must faithfully perform his duties to society, to the bar, to the courts
and to his clients. A violation of the high standards of the legal profession
subjects the lawyer to administrative sanctions which includes
suspension and disbarment.23 More importantly, possession of good
moral character must be continuous as a requirement to the enjoyment
of the privilege of law practice; otherwise, the loss thereof is a ground for
the revocation of such privilege.24
Indeed, the primary objective of administrative cases against lawyers is
not only to punish and discipline the erring individual lawyers but also to
safeguard the administration of justice by protecting the courts and the
public from the misconduct of lawyers, and to remove from the legal
profession persons whose utter disregard of their lawyers oath have
proven them unfit to continue discharging the trust reposed in them as
members of the bar.25These pronouncement gain practical significance
in the case at bar considering that respondent was a former member of
the Board of Special Inquiry of the BID. It bears stressing also that
government lawyers who are public servants owe fidelity to the public
service, a public trust. As such, government lawyers should be more
sensitive to their professional obligations as their disreputable conduct is
more likely to be magnified in the public eye.26
As a lawyer, who was also a public officer, respondent miserably failed
to cope with the strict demands and high standards of the legal
profession.
Section 27, Rule 138 of the Revised Rules of Court mandates that a
Page 118
lawyer may be disbarred or suspended by this Court for any of the
following acts: (1) deceit; (2) malpractice; (3) gross misconduct in office;
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
(4) grossly immoral conduct; (5) conviction of a crime involving moral
turpitude ; (6) violation of the lawyers oath; (7) willful disobedience of
any lawful order of a superior court; and (8) willfully appearing as an
attorney for a party without authority to do so.27
In Atty. Vitriolo v. Atty. Dasig,28 we ordered the disbarment of a lawyer
who, during her tenure as OIC, Legal Services, Commission on Higher
Education, demanded sums of money as consideration for the approval
of applications and requests awaiting action by her office. In Lim v.
Barcelona,29 we also disbarred a senior lawyer of the National Labor
Relations Commission, who was caught by the National Bureau of
Investigation in the act of receiving and counting money extorted from a
certain person.
Respondents acts constitute gross misconduct; and consistent with the
need to maintain the high standards of the Bar and thus preserve the
faith of the public in the legal profession, respondent deserves the
ultimate penalty of expulsion from the esteemed brotherhood of
lawyers.30
WHEREFORE, Atty. Fred L. Gutierrez is hereby DISBARRED from the
practice of law and ordered to return the amount he received from the
complainant with legal interest from his receipt of the money until
payment. This case shall be referred to the Office of the Ombudsman for
criminal prosecution for violation of Anti-Graft and Corrupt Practices Acts
and to the Department of Justice for appropriate administrative action.
Let copies of this Decision be furnished the Bar Confidant to be spread
on the records of the respondent; the Integrated Bar of the Philippines
for distribution to all its chapters; and the Office of the Court Administrator
for dissemination to all courts throughout the country.
SO ORDERED.
A.C. No. 3701 March 28, 1995
PHILIPPINE NATIONAL BANK, complainant,
vs.
ATTY. TELESFORO S. CEDO, respondent.
RESOLUTION
BIDIN, J.:
In a verified letter-complaint dated August 15, 1991, complainant
Philippine National Bank charged respondent Atty. Telesforo S. Cedo,
former Asst. Vice-President of the Asset Management Group of
complainant bank with violation of Canon 6, Rule 6.03 of the Code of
Professional Responsibility, thus:
A lawyer shall not, after leaving government service, accept engagement
or employment in connection with any matter in which he had intervened
while in said service.
by appearing as counsel for individuals who had transactions with
complainant bank in which respondent during his employment with
aforesaid bank, had intervened.
Complainant averred that while respondent was still in its employ, he
participated in arranging the sale of steel sheets (denominated as Lots
54-M and 55-M) in favor of Milagros Ong Siy for P200,000. He even
"noted" the gate passes issued by his subordinate, Mr. Emmanuel
Elefan, in favor of Mrs. Ong Siy authorizing the pull-out of the steel
sheets from the DMC Man Division Compound. When a civil action arose
out of this transaction between Mrs. Ong Siy and complainant bank
before the Regional Trial Court of Makati, Branch 146, respondent who
had since left the employ of complainant bank, appeared as one of the
counsels of Mrs. Ong Siy.
Similarly, when the same transaction became the subject of an
administrative case filed by complainant bank against his former
subordinate Emmanuel Elefan, for grave misconduct and dishonesty,
respondent appeared as counsel for Elefan only to be later disqualified
by the Civil Service Commission.
Moreover, while respondent was still the Asst. Vice President of
complainants Asset Management Group, he intervened in the handling
of the loan account of the spouses Ponciano and Eufemia Almeda with
PINEDAPCGRNMAN
complainant bank by writing demand letters to the couple. When a civil
action ensued between complainant bank and the Almeda spouses as a
result of this loan account, the latter were represented by the law firm
"Cedo, Ferrer, Maynigo & Associates" of which respondent is one of the
Senior Partners.
In his Comment on the complaint, respondent admitted that he appeared
as counsel for Mrs. Ong Siy but only with respect to the execution
pending appeal of the RTC decision. He alleged that he did not
participate in the litigation of the case before the trial court. With respect
to the case of the Almeda spouses, respondent alleged that he never
appeared as counsel for them. He contended that while the law firm
"Cedo Ferrer, Maynigo & Associates" is designated as counsel of record,
the case is actually handled only by Atty. Pedro Ferrer. Respondent
averred that he did not enter into a general partnership with Atty. Pedro
Ferrer nor with the other lawyers named therein. They are only using the
aforesaid name to designate a law firm maintained by lawyers, who
although not partners, maintain one office as well as one clerical and
supporting staff. Each one of them handles their own cases
independently and individually receives the revenues therefrom which
are not shared among them.
In the resolution of this Court dated January 27, 1992, this case was
referred to the Integrated Bar of the Philippines (IBP), for investigation,
report and recommendation.
During the investigation conducted by the IBP, it was discovered that
respondent was previously fined by this Court in the amount of P1,000.00
in connection with G.R. No. 94456 entitled "Milagros Ong Siy vs. Hon.
Salvador Tensuan, et al." for forum shopping, where respondent
appeared as counsel for petitioner Milagros Ong Siy "through the law
firm of Cedo Ferrer Maynigo and Associates."
The IBP further found that the charges herein against respondent were
fully substantiated. Respondent's averment that the law firm handling the
case of the Almeda spouses is not a partnership deserves scant
consideration in the light of the attestation of complainant's counsel, Atty.
Pedro Singson, that in one of the hearings of the Almeda spouses' case,
respondent attended the same with his partner Atty. Ferrer, and although
he did not enter his appearance, he was practically dictating to Atty.
Ferrer what to say and argue before the court. Furthermore, during the
hearing of the application for a writ of injunction in the same case,
respondent impliedly admitted being the partner of Atty. Ferrer, when it
was made of record that respondent was working in the same office as
Atty. Ferrer.
Moreover, the IBP noted that assuming the alleged set-up of the firm is
true, it is in itself a violation of the Code of Professional Responsibility
(Rule 15.02) since the clients secrets and confidential records and
information are exposed to the other lawyers and staff members at all
times.
From the foregoing, the IBP found a deliberate intent on the part of
respondent to devise ways and means to attract as clients former
borrowers of complainant bank since he was in the best position to see
the legal weaknesses of his former employer, a convincing factor for the
said clients to seek his professional service. In sum, the IBP saw a
deliberate sacrifice by respondent of his ethics in consideration of the
money he expected to earn.
The IBP thus recommended the suspension of respondent from the
practice of law for 3 years.
The records show that after the Board of Governors of the IBP had, on
October 4, 1994, submitted to this Court its Report and recommendation
in this case, respondent filed a Motion for Reconsideration dated October
25, 1994 of the recommendation contained in the said Report with the
IBP Board of Governors. On December 12, 1994, respondent also filed
another "Motion to Set Hearing" before this Court, the aforesaid Motion
for Reconsideration. In resolving this case, the Court took into
consideration the aforesaid pleadings.
In addition to the findings of the IBP, this Court finds this occasion
Page 119
appropriate to emphasize the paramount importance of avoiding the
representation of conflicting interests. In the similar case of Pasay Law
Intelligentia et Scientia Semper Mea
LEGAL ETHICS PINEDAPCGRNMAN
and Conscience Union, Inc. vs. Paz, (95 SCRA 24 [1980]) where a PER CURIAM:
former Legal Officer and Legal Prosecutor of PARGO who participated In the election of the national officers of the Integrated Bar of the
in the investigation of the Anti-Graft case against Mayor Pablo Cuneta Philippines (hereafter "IBP") held on June 3, 1989 at the Philippine
later on acted as counsel for the said Mayor in the same anti-graft case, International Convention Center (or PICC), the following were elected by
this Court, citing Nombrado vs. Hernandez (26 SCRA 13 119681) ruled: the House of Delegates (composed of 120 chapter presidents or their
The Solicitor General is of the opinion, and we find no reason to disagree alternates) and proclaimed as officers:
with him, that even if respondent did not use against his client any
NAME POSITION
information or evidence acquired by him as counsel it cannot be denied
that he did become privy to information regarding the ownership of the
Atty. Violeta Drilon President
parcel of land which was later litigated in the forcible entry case, for it
was the dispute over the land that triggered the mauling incident which
Atty. Bella Tiro Executive Vice-President
gave rise to the criminal action for physical injuries. This Court's remarks
in Hilado vs. David, 84 Phil. 571, are apropos:
Atty. Salvador Lao Chairman, House of Delegates
"Communications between attorney and client are, in a great number of
litigations, a complicated affair, consisting of entangled relevant and
irrelevant, secret and well-known facts. In the complexity of what is said Atty. Renato F. Secretary, House of Delegates
in the course of dealings between an attorney and client, inquiry of the Ronquillo
nature suggested would lead to the revelation, in advance of the trial, of
other matters that might only further prejudice the complainant's cause." Atty. Teodoro Quicoy Treasurer, House of Delegates
Whatever may be said as to whether or not respondent utilized against
his former client information given to him in a professional capacity, the Atty. Oscar Badelles Sergeant at Arms, House of Delegates
mere fact of their previous relationship should have precluded him from
appearing as counsel for the other side in the forcible entry case. In the Atty. Justiniano Cortes Governor & Vice-President for Northern
case ofHilado vs. David, supra, this Tribunal further said: Luzon
Hence the necessity of setting the existence of the bare relationship of
attorney and client as the yardstick for testing incompatibility of interests. Atty. Ciriaco Atienza Governor & Vice-President for Central
This stern rule is designed not alone to prevent the dishonest practitioner Luzon
from fraudulent conduct, but as well to protect the honest lawyer from
unfounded suspicion of unprofessional practice. . . . It is founded on Atty. Mario Jalandoni Governor & Vice-President for Metro
principles of public policy, of good taste. As has been said in another Manila
case, the question is not necessarily one of the rights of the parties, but
as to whether the attorney has adhered to proper professional standard. Atty. Jose Aguilar Governor & Vice-President for Southern
With these thoughts in mind, it behooves attorney, like Caesar's wife, not Grapilon Luzon
only to keep inviolate the client's confidence, but also to avoid the
appearance of treachery and double dealing. Only thus can litigants. be Atty. Teodoro Almine Governor & Vice-President for Bicolandia
encouraged to entrust their secrets to their attorneys which is of
paramount importance in the administration of justice. Atty. Porfirio Siyangco Governor & Vice-President for Eastern
The foregoing disquisition on conflicting interest applies with equal force Visayas
and effect to respondent in the case at bar. Having been an executive of
complainant bank, respondent now seeks to litigate as counsel for the Atty. Ricardo Teruel Governor & Vice-President for Western
opposite side, a case against his former employer involving a transaction Visayas
which he formerly handled while still an employee of complainant, in
violation of Canon 6 of the Canons of Professional Ethics on adverse Atty. Gladys Tiongco Governor & Vice-President for Eastern
influence and conflicting interests, to wit: Mindanao
It is unprofessional to represent conflicting interests, except by express
conflicting consent of all concerned given after a full disclosure of the Atty. Simeon Governor & Vice-President for Western
facts. Within the meaning of this canon, a lawyer represents conflicting Datumanong Mindanao
interest when, in behalf on one client, it is his duty to contend for that The newly-elected officers were set to take the their oath of office on July
which duty to another client requires him to oppose. 4,1989, before the Supreme Court en banc. However,disturbed by the
ACCORDINGLY, this Court resolves to SUSPEND respondent ATTY. widespread reports received by some members of the Court from
TELESFORO S. CEDO from the practice of law for THREE (3) YEARS, lawyers who had witnessed or participated in the proceedings and the
effective immediately. adverse comments published in the columns of some newspapers about
Let copies of this resolution be furnished the Integrated Bar of the the intensive electioneering and overspending by the candidates, led by
Philippines and all courts in Metro Manila. the main protagonists for the office of president of the association,
SO ORDERED. namely, Attorneys Nereo Paculdo, Ramon Nisce, and Violeta C. Drilon,
the alleged use of government planes, and the officious intervention of
THE LAWYER AND THE LEGAL PROFESSION certain public officials to influence the voting, all of which were done in
violation of the IBP By-Laws which prohibit such activities. The Supreme
CANON 7 A LAWYER SHALL AT ALL TIMES UPHOLD THE Court en banc, exercising its power of supervision over the Integrated
INTEGRITY AND DIGNITY OF THE LEGAL PROFESSION, AND Bar, resolved to suspend the oath-taking of the IBP officers-elect and to
SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR. inquire into the veracity of the reports.
It should be stated at the outset that the election process itself (i.e. the
A.M. No. 491 October 6, 1989 voting and the canvassing of votes on June 3, 1989) which was
IN THE MATTER OF THE INQUIRY INTO THE 1989 ELECTIONS OF
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conducted by the "IBP Comelec," headed by Justice Reynato Puno of

THE INTEGRATED BAR OF THE PHILIPPINES. the Court of Appeals, was unanimously adjudged by the participants and

Intelligentia et Scientia Semper Mea

LEGAL ETHICS
observers to be above board. For Justice Puno took it upon himself to
device safeguards to prevent tampering with, and marking of, the ballots.
What the Court viewed with considerable concern was the reported
electioneering and extravagance that characterized the campaign
conducted by the three candidates for president of the IBP.
I. MEDIA ACCOUNT OF THE ELECTION CAMPAIGN.
Emil Jurado, in his column "IBP Group Questions Drilon Election" (Manila
Standard, Sunday, June 17, 1989), Luis Mauricio, in two successive
columns: "The Invertebrated Bar" (Malaya, June 10, 1989) and "The
Disintegrating Bar" (Malaya, June 20, 1989), and Teodoro Locsin Jr. in
an article, entitled "Pam-Pam" (The Philippines Free Press, July 8,1989),
and the editorial, entitled 'Wrong Forum" of the Daily Globe (June 8,
1989), were unanimously critical of the "vote-buying and pressure
tactics" allegedly employed in the campaign by the three principal
candidates: Attys. Violeta C. Drilon, Nereo Paculdo and Ramon Nisce
who reportedly "poured heart, soul, money and influence to win over the
120 IBP delegates."
Mr. Jurado mentioned the resentment of Atty. Drilon's rivals who felt at a
disadvantage because Atty. Drilon allegedly used PNB helicopters to
visit far-flung IBP chapters on the pretext of distributing Bigay Puso
donations, and she had the added advantage of having regional directors
and labor arbiters of the Department of Labor and Employment (who had
been granted leaves of absence by her husband, the Labor Secretary)
campaigning for her. Jurado's informants alleged that there was rampant
vote-buying by some members of the U.P. Sigma Rho Fraternity
(Secretary Drilon's fraternity), as well as by some lawyers of ACCRA
(Angara, Concepcion, Cruz, Regala and Abello Law Office) where Mrs.
Drilon is employed, and that government positions were promised to
others by the office of the Labor Secretary.
Mr. Mauricio in his column wrote about the same matters and, in addition,
mentioned "talk of personnel of the Department of Labor, especially
conciliators and employers, notably Chinese Filipinos, giving aid and
comfort to her (Atty. Drilon's) candidacy," the billeting of out-of-town
delegates in plush hotels where they were reportedly "wined and dined
continuously, womened and subjected to endless haggling over the price
of their votes x x x" which allegedly "ranged from Pl5,000 to P20,000,
and, on the day of the election, some twelve to twenty votes which were
believed crucial, appreciated to P50,000."
In his second column, Mr. Mauricio mentioned "how a top official of the
judiciary allegedly involved himself in IBP politics on election day by
closeting himself with campaigners as they plotted their election strategy
in a room of the PICC (the Philippine International Convention Center
where the convention/election were held) during a recess x x x."
Mr. Locsin in his column and editorial substantially re-echoed Mauricio's
reports with some embellishments.
II. THE COURT'S DECISION TO INVESTIGATE.
Responding to the critical reports, the Court, in its en banc resolution
dated June 15, 1989, directed the outgoing and incoming members of
the IBP Board of Governors, the principal officers and Chairman of the
House of Delegates to appear before it on Tuesday, June 20, 1989, at
2:00 o'clock p.m., and there to inform the Court on the veracity of the
aforementioned reports and to recommend, for the consideration of the
Court, appropriate approaches to the problem of confirming and
strengthening adherence to the fundamental principles of the IBP.
In that resolution the Court "call[ed] to mind that a basic postulate of the
Integrated Bar of the Philippines (IBP), heavily stressed at the time of its
organization and commencement of existence, is that the IBP shall be
non-political in character and that there shall be no lobbying nor
campaigning in the choice of members of the Board of Governors and of
the House of Delegates, and of the IBP officers, national, or regional, or
chapter. The fundamental assumption was that officers, delegates and
governors would be chosen on the basis of professional merit and
willingness and ability to serve."
The resolution went on to say that the "Court is deeply disturbed to note
that in connection with the election of members of the Board of
Governors and of the House of Delegates, there is a widespread belief,
PINEDAPCGRNMAN
based on reports carried by media and transmitted as well by word of
mouth, that there was extensive and intensive campaigning by
candidates for IBP positions as well as expenditure of considerable sums
of money by candidates, including vote-buying, direct or indirect."
The venerable retired Supreme Court Justice and IBP President
Emeritus, Jose B.L. Reyes, attended the dialogue, upon invitation of the
Court, to give counsel and advice. The meeting between the Court en
banc on the one hand, and the outgoing and in coming IBP officers on
the other, was an informal one. Thereafter, the Court resolved to conduct
a formal inquiry to determine whether the prohibited acts and activities
enumerated in the IBP By-Laws were committed before and during the
1989 elections of IBP's national officers.
The Court en banc formed a committee and designated Senior
Associate Justice Andres R. Narvasa, as Chairman, and Associate
Justices Teodoro R. Padilla, Emilio A. Gancayco, Abraham F.
Sarmiento, and Carolina C. Grio-Aquino, as members, to conduct the
inquiry. The Clerk of Court, Atty. Daniel Martinez, acted as the
committee's Recording Secretary.
A total of forty-nine (49) witnesses appeared and testified in response to
subpoenas issued by the Court to shed light on the conduct of the
elections. The managers of three five-star hotels the Philippine Plaza,
the Hyatt, and the Holiday Inn where the three protagonists (Drilon, Nisce
and Paculdo) allegedly set up their respective headquarters and where
they billeted their supporters were summoned. The officer of the
Philippine National Bank and the Air Transport Office were called to
enlighten the Court on the charge that an IBP presidential candidate and
the members of her slate used PNB planes to ferry them to distant places
in their campaign to win the votes of delegates. The Philippine Airlines
officials were called to testify on the charge that some candidates gave
free air fares to delegates to the convention. Officials of the Labor
Department were also called to enable the Court to ascertain the truth of
the reports that labor officials openly campaigned or worked for the
election of Atty. Drilon.
The newspaper columnists, Messrs. Luis Mauricio, Jesus Bigornia and
Emil Jurado were subpoenaed to determine the nature of their sources
of information relative to the IBP elections. Their stories were based, they
said, on letters, phone calls and personal interviews with persons who
claimed to have knowledge of the facts, but whom they, invoking the
Press Freedom Law, refused to identify.
The Committee has since submitted its Report after receiving, and
analyzing and assessing evidence given by such persons as were
perceived to have direct and personal knowledge of the relevant facts;
and the Court, after deliberating thereon, has Resolved to accept and
adopt the same.
III. PROHIBITED ACTS AND PRACTICES UNDER IBP BY-LAWS.
Article I, Section 4 of the IBP By-Laws emphasizes the "strictly non-
political" character of the Integrated Bar of the Philippines, thus:
"SEC. 4. Non-political Bar. The Integrated Bar is strictly non-political,
and every activity tending to impair this basic feature is strictly prohibited
and shall be penalized accordingly. No lawyer holding an elective,
judicial, quasi-judicial, or prosecutory office in the Government or any
political subdivision or instrumentality thereof shall be eligible for election
or appointment to any position in the Integrated Bar or any Chapter
thereof. A Delegate, Governor, officer or employee of the Integrated Bar,
or an officer or employee of any Chapter thereof shall be considered ipso
facto resigned from his position as of the moment he files his certificate
of candidacy for any elective public office or accepts appointment to any
judicial, quasi-judicial, or prosecutory office in the Government or any
political subdivision or instrumentality thereof. "'
Section 14 of the same By-Laws enumerates the prohibited acts relative
to IBP elections:
SEC. 14. Prohibited acts and practices relative to elections. The
following acts and practices relative to election are prohibited, whether
committed by a candidate for any elective office in the Integrated Bar or
Page 121
by any other member, directly or indirectly, in any form or manner, by
himself or through another person:
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
(a) Distribution, except on election day, of election campaign material;
(b) Distribution, on election day, of election campaign material other than
a statement of the biodata of a candidate on not more than one page of
a legal-size sheet of paper; or causing distribution of such statement to
be done by persons other than those authorized by the officer presiding
at the elections;
(c) Campaigning for or against any candidate, while holding an elective,
judicial, quasi-judicial or prosecutory office in the Government or any
political subdivision, agency or instrumentality thereof;
(d) Formation of tickets, single slates, or combinations of candidates, as
well as the advertisement thereof;
(e) For the purpose of inducing or influencing a member to withhold his
vote, or to vote for or against a candidate, (1) payment of the dues or
other indebtedness of any member; (2) giving of food, drink,
entertainment, transportation or any article of value, or any similar
consideration to any person; or (3) making a promise or causing an
expenditure to be made, offered or promised to any person."
Section 12(d) of the By-Laws prescribes sanctions for violations of the
above rules:
(d) Any violation of the rules governing elections or commission of any
of the prohibited acts and practices defined in Section 14 prohibited Acts
and Practices relative to elections) of the by-laws of the Integrated Bar
shall be a ground for the disqualification of a candidate or his removal
from office if elected, without prejudice to the imposition of sanctions
upon any erring member pursuant to the By-laws of the Integrated Bar.
At the formal investigation which was conducted by the investigating
committee, the following violations were established:
(1) Prohibited campaigning and solicitation of votes by the candidates for
president, executive vice-president, the officers of candidate the House
of Delegates and Board of Governors.
The three candidates for IBP President Drilon, Nisce and Paculdo began
travelling around the country to solicit the votes of delegates as early as
April 1989. Upon the invitation of IBP President, Leon Garcia, Jr. (t.s.n.,
July 13,1989, p. 4), they attended the Bench and Bar dialogues held in
Cotabato in April 1989 (t.s.n., June 29, 1989, p. 123), in Tagaytay City,
Pampanga, and in Baguio City (during the conference of chapter
presidents of Northern Luzon (t.s.n., July 3,1989, p. 113; t.s.n., July 10,
p. 41; t.s.n., July 13, p. 47) where they announced their candidacies and
met the chapter presidents.
Atty. Nisce admitted that he went around the country seeking the help of
IBP chapter officers, soliciting their votes, and securing their written
endorsements. He personally hand-carried nomination forms and
requested the chapter presidents and delegates to fill up and sign the
forms to formalize their commitment to his nomination for IBP President.
He started campaigning and distributing the nomination forms in March
1989 after the chapter elections which determined the membership of
the House of Delegates composed of the 120 chapter presidents (t.s.n.,
June 29, 1989, pp. 82-86). He obtained forty (40) commitments. He
submitted photocopies of his nomination forms which read:
"Nomination Form
I Join in Nominating
RAMON M. NISCE
as
National President of the
Integrated Bar of the Philippines
______________ _______________
Chapter Signature"
Among those who signed the nomination forms were: Onofre P. Tejada,
Candido P. Balbin, Jr., Conizado V. Posadas, Quirico L. Quirico Ernesto
S. Salun-at, Gloria C. Agunos, Oscar B. Bernardo, Feliciano F. Wycoco,
Amor L. Ibarra, Jose M. Atienza, Jose N. Contreras, Romeo T. Mendoza,
Leo C. Medialdea, Jr., Paulino G. Clarin, Julius Z. Neil, Roem J. Arbolado
Democrito M. Perez, Abelardo Fermin, Diosdado B. Villarin, Jr., Daniel
C. Macaraeg, Confesor R. Sansano Dionisio E. Bala, Jr., Emesto A.
PINEDAPCGRNMAN
Amores, Romeo V. Pefianco, Augurio C. Pamintuan, Atlee T. Viray,
Ceferino C. Cabanas, Jose S. Buban, Diosdado Z. Reloj, Jr., Cesar C.
Viola, Oscar C. Fernandez, Ricardo B. Teruel Rodrigo R. Flores, Sixto
Marella, Jr., Arsenio C. Villalon, Renato F. Ronquillo, Antonio G. Nalapo
Romualdo A. Din Jr., Jose P. Icaonapo Jr., and Manuel S. Person.
Atty. Nisce admitted that he reserved rooms at the Hyatt Hotel based on
the commitments he had obtained (t.s.n., June 29, 1989, pp. 82-85).
Unfortunately, despite those formal commitments, he obtained only 14
votes in the election (t.s.n., June 29, 1 989, p. 86). The reason, he said,
is that. some of those who had committed their votes to him were
"manipulated, intimidated, pressured, or remunerated" (t.s.n., June
29,1989, pp. 8695; Exhibit "M-4-Nisce," t.s.n., July 4, 1989, pp. 100-1
04).
(2) Use of PNB plane in the campaign.
The records of the Philippine National Bank (Exhibit C-1-Crudo and
Exhibit C-2-Crudo) show that Secretary Fulgencio S. Factoran, Jr. of the
Department of Environment & Natural Resources (DENR) borrowed a
plane from the Philippine National Bank for his Bicol CORD (Cabinet
Officers for Regional Development) Assistant, Undersecretary Antonio
Tria. The plane manifest (Exh. C-2-Crudo) listed Atty. Violeta Drilon,
Arturo Tusi (Tiu), Assistant Secretary for Environment and Natural
Resources (DENR) Tony Tria, Atty. Gladys Tiongco, and Amy Wong.
Except for Tony Tria, the rest of the passengers were IBP candidates.
Atty. Drilon admitted that she "hitched" a ride on a PNB plane. She said
that she was informed by Atty. Tiu about the availability of a PNB plane
(t.s.n., July 3,1989, pp. 116-118).
Atty. Tiu, who ran for the position of IBP executive vice-president in the
Drilon ticket, testified that sometime in May 1989 he failed to obtain
booking from the Philippine Airlines for the projected trip of his group to
Bicol. He went to the DENR allegedly to follow up some papers for a
client. While at the DENR, he learned that Assistant Secretary Tria was
going on an official business in Bicol for Secretary Fulgencio Factoran
and that he would be taking a PNB plane. As Assistant Secretary Tria is
his fraternity brother, he asked if he, together with the Drilon group, could
hitch a ride on the plane to Bicol. His request was granted. Their purpose
in going to Bicol was to assess their chances in the IBP elections. The
Drilon company talked with the IBP chapter presidents in Daet, Naga,
and Legaspi, and asked for their support (t.s.n., July 10, 1989, pp. 549).
Assistant Secretary Antonio S. Tria confirmed the use of a PNB plane by
Atty. Drilon and her group. He recalled that on May 23,1989, DENR
Secretary Factoran instructed him to go to Bicol to monitor certain
regional development projects there and to survey the effect of the
typhoon that hit the region in the middle of May. On the same day, Atty.
Tiu, a fraternity brother (meaning that Tiu belongs to the Sigma Rho
fraternity) went to the DENR office and requested the Secretary
(Factoran) if he (Tiu) could be allowed to hitch a ride on the plane.
Assistant Secretary Tria, together with the Drilon group which included
Attorneys Drilon, Grapilon, Amy Wong, Gladys Tiongco, and Tiu, took off
at the Domestic Airport bound for Naga, Daet and Legaspi. In Legaspi
the Drilon group had lunch with Atty. Vicente Real, Jr., an IBP chapter
president (t.s.n., July 10, 1989, pp. 54-69).
(3) Formation of tickets and single slates.
The three candidates, Paculdo, Nisce and Drilon, admitted having
formed their own slates for the election of IBP national officers on June
3, 1989.
Atty. Paculdo's slate consisted of himself for President; Bella D. Tiro,
for Executive Vice-President; and for Governors: Justiniano P. Cortez
(Northern Luzon), Oscar C. Fernandez (Central Luzon), Mario C.V.
Jalandoni (Greater Manila), Petronilo A. de la Cruz (Southern Luzon),
Teodorico C. Almine, Jr. (Bicolandia), Ricardo B. Teruel (Western
Visayas), Porfirio P. Siyangco (Eastern Visayas), Jesus S. Anonat
(Western Mindanao), Guerrero A. Adaza, Jr. (Eastern Mindanao)
(Exhibit M-Nisce).
The Drilon ticket consisted of. Violeta C. Drilon for President, Arturo Tiu
Page 122
for Executive Vice President, Salvador Lao for Chairman of the House of
Delegates, and, for Governors: Basil Rupisan (Northern 'Luzon), Acong
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Atienza (Central Luzon), Amy Wong (Metro Manila), Jose Grapilon
(Southern Tagalog), Teodoro Almine (Bicolandia), Baldomero Estenzo
(Eastern Visayas), Joelito Barrera (Western Visayas), Gladys Tiongco
(Eastern Mindanao), Simeon Datumanong (Western Mindanao) (Exhibit
M-1-Nisce).
Atty. Ramon N. Nisce's line-up listed himself and Confessor B. Sansano
Benjamin B. Bernardino, Antonio L. Nalapo Renato F. Ronquillo, Gloria
C. Agunos, Mario Valderrama, Candido P. Balbin Jr., Oscar C.
Fernandez, Cesar G. Viola, Leo C. Medialdea, Jr., Vicente P. Tordilla,
Jr., Jose S. Buban, Joel A. Llosa, Jesus T. Albacite and Oscar V.
Badelles.
(4) Giving free transportation to out-of-town delegates and alternates.
Atty. Nisce admitted having bought plane tickets for some delegates to
the convention. He mentioned Oscar Badelles to whom he gave four
round-trip tickets (worth about P10,000) from Iligan City to Manila and
back. Badelles was a voting delegate. Nisce, however, failed to get a
written commitment from him because Atty. Medialdea assured him
(Nisce) "sigurado na 'yan, h'wag mo nang papirmahin." Badelles won as
sergeant-at-arms, not in Nisce's ticket, but in that of Drilon.
Badelles admitted that Nisce sent him three airplane tickets, but he
Badelles said that he did not use them, because if he did, he would be
committed to Nisce, and he Badelles did not want to be committed (t.s.n.,
July 4,1989, pp. 77-79, 95-96).
Nisce also sent a plane ticket to Atty. Atilano, who was his candidate,
and another ticket to Mrs. Linda Lim of Zamboanga. Records of the
Philippine Airlines showed that Atty. Nisce paid for the plane tickets of
Vicente Real, Jr. (Exh. D-1-Calica), Romeo Fortes (Exh. D-1-Calica),
Cesar Batica (Exh. D-2-Calica), Jose Buban of Leyte (Exh. D-2-Calica),
Delsanto Resuello (Exh. D-3- Calica), and Ceferino Cabanas (Exh. D-3-
Calica).
In spite of his efforts and expense, only one of Nisce's candidates won:
Renato Ronquillo of Manila 4, as Secretary of the House of Delegates
(t.s.n. July 3, p. 161).
(5) Giving free hotel accommodations, food, drinks, entertainment to
delegates.
(a) ATTY. NEREO PACULDO
Atty. Paculdo alleged that he booked 24 regular rooms and three suites
at the Holiday Inn, which served as his headquarters. The 24 rooms were
to be occupied by his staff (mostly ladies) and the IBP delegates. The
three suites were to be occupied by himself, the officers of the Capitol
Bar Association, and Atty. Mario Jalandoni. He paid P150,000 for the
hotel bills of his delegates at the Holiday Inn, where a room cost P990
per day with breakfast.
Those listed as guests of Atty. Paculdo at the Holiday Inn were: Emesto
C. Perez, Tolomeo Ligutan Judge Alfonso Combong, Ricardo Caliwag,
Antonio Bisnar, Benedicto Balajadia, Jesus Castro, Restituto Villanueva,
Serapio Cribe Juanita Subia, Teodorico J. Almine, Rudy Gumban, Roem
Arbolado, Ricardo Teruel, Shirley Moises, Ramon Roco, Alberto
Trinidad, Teodoro Quicoy Manito Lucero, Fred Cledera Vicente Tordilla,
Julian Ocampo, Francisco Felizmenio Marvel Clavecilla, Amador
Capiral, Eufronio Maristela, Porfirio Siyangco, William Llanes, Jr.,
Marciano Neri, Guerrero Adaza, Diosdado Peralta, Luis C. Formilleza,
Jr., Democrito Perez, Bruno Flores, Dennis Rendon, Judge Ceferino
Chan, Mario Jalandoni, Kenneth Siruelo Bella Tiro, Antonio Santos,
Tiburcio Edano James Tan, Cesilo A. Adaza, Francisco Roxas, Angelita
Gacutan, Jesse Pimentel, Judge Jaime Hamoy, Jesus Anonat, Carlos
Egay, Judge Carlito Eisma, Judge Jesus Carbon, Joven Zach, and
Benjamin Padon.
Noel de Guzman, Holiday Inn's credit manager, testified that Atty.
Paculdo booked 52 (not 24) rooms, including the presidential suite,
which was used as the Secretariat. The group bookings were made by
Atty. Gloria Paculdo, the wife of Nereo Paculdo (t.s.n. June 28, 1989, pp.
63-68). The total sum of P227,114.89 was paid to Holiday Inn for the use
of the rooms.
(b) ATTY. VIOLETA C. DRILON
PINEDAPCGRNMAN
The delegates and supporters of Atty. Drilon were billeted at the
Philippine Plaza Hotel where her campaign manager, Atty. Renato
Callanta, booked 40 rooms, 5 of which were suites. According to Ms.
Villanueva, Philippine Plaza banquet and conventions manager, the
contract that Atty. Callanta signed with the Philippine Plaza was made in
the name of the "IBP c/o Atty. Callanta."
Mrs. Lourdes Juco, a sales manager of the Philippine Plaza, recalled that
it was Mr. Mariano Benedicto who first came to book rooms for the IBP
delegates. She suggested that he obtain a group (or discounted) rate.
He gave her the name of Atty. Callanta who would make the
arrangements with her. Mr. Benedicto turned out to be the Assistant
Secretary of the Department of Labor and Employment (DOLE).
The total sum of P316,411.53 was paid by Atty. Callanta for the rooms,
food, and beverages consumed by the Drilon group, with an unpaid
balance of P302,197.30. Per Attorney Daniel Martinez's last telephone
conversation with Ms. Villanueva, Atty. Callanta still has an outstanding
account of P232,782.65 at Philippine Plaza.
Atty. Callanta admitted that he signed the contract for 40 rooms at the
Philippine Plaza. He made a downpayment of P123,000. His "working
sheet' showed that the following persons contributed for that down
payment:
(a) Nilo Pena (Quasha Law Office) P 25,000
(b) Antonio Carpio 20,000
(c) Toto Ferrer (Carpio Law Office) 10,000
(d) Jay Castro 10,000
(e) Danny Deen 20,000
(f) Angangco Tan (Angara Law Office) 10,000
(g) Alfonso Reyno 20,000
(h) Cosme Rossel 15,300
(t.s.n. July 4, 1 989, pp. 3-4)
Atty. Callanta explained that the above listed persons have been
contributing money every time the IBP embarks on a project. This time,
they contributed so that their partners or associates could attend the
legal aid seminar and the IBP convention too.
Atty. Drilon alleged that she did not know that Atty. Callanta had billeted
her delegates at the Philippine Plaza. She allegedly did not also know in
whose name the room she occupied was registered. But she did ask for
a room where she could rest during the convention. She admitted,
however, that she paid for her hotel room and meals to Atty. Callanta,
through Atty. Loanzon (t.s.n. July 3,1989).
The following were listed as having occupied the rooms reserved by Atty.
Callanta at the Philippine Plaza: Violeta Drilon, Victoria A. Verciles,
Victoria C. Loanzon, Leopoldo A. Consulto Ador Lao, Victoria Borra,
Aimee Wong, Callanta, Pena, Tiu, Gallardo, Acong Atienza, D.
Bernardo, Amores, Silao Caingat, Manuel Yuson, Simeon Datumanong,
Manuel Pecson, Sixto Marella, Joselito Barrera, Radon Macalalag,
Oscar Badelles, Antonio Acyatan, Ildefonso C. Puerto, Nestor Atienza,
Gil Batula Array Corot, Dimakuta Corot Romeo Fortes Irving Petilla,
Teodoro Palma, Gil Palma, Danilo Deen, Delsanto, Resuello, Araneta,
Vicente Real, Sylvio Casuncad Espina, Guerrero, Julius Neri, Linda Lim,
Ben Lim, C. Batica, Luis Formilleza, Felix Macalag Mariano Benedicto,
Atilano, Araneta, Renato Callanta.
Atty. Nilo Pena admitted that the Quasha Law Office of which he is a
senior partner, gave P25,000 to Callanta for rooms at the Philippine
Plaza so that some members of his law firm could campaign for the
Page 123
Drilon group (t.s.n. July 5,1989, pp. 7678) during the legal aid seminar
and the IBP convention. Most of the members of his law firm are fraternity
brothers of Secretary Drilon (meaning, members of the Sigma Rho
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Fraternity). He admitted being sympathetic to the candidacy of Atty.
Drilon and the members of her slate, two of whom Jose Grapilon and
Simeon Datumanong are Sigma Rhoans. They consider Atty. Drilon
as a "sigma rho sister," her husband being a sigma rhoan.
Atty. Antonio Carpio, also a Sigma Rhoan, reserved a room for the
members of his own firm who attended the legal aid seminar and the
convention. He made the reservation through Atty. Callanta to whom he
paid P20,000 (t.s.n. July 6,1989, pp. 30-34).
Atty. Carpio assisted Atty. Drilon in her campaign during the convention,
by soliciting the votes of delegates he knew, like Atty. Albacite his former
teacher (but the latter was already committed to Nisce), and Atty. Romy
Fortes, a classmate of his in the U.P. College of Law (t. t.s.n. July 6,
1989, pp. 22, 29, 39).
(c) ATTY. RAMON NISCE.
Atty. Nisce, through his brother-in-law, Ricardo Paras, entered into a
contract with the Hyatt Hotel for a total of 29 rooms plus one (1) seventh-
floor room. He made a downpayment of P20,000 (t.s.n. June 28, 1989,
p. 58) on April 20, 1989, and P37,632.45 on May 10, or a total of
P57,632.45.
Ms. Cecile Flores, Ms. Milagros Ocampo, and Mr. Ramon Jacinto, the
sales department manager, credit manager, and reservation manager,
respectively of the Hyatt, testified that Atty. Nisce's bill amounted to
P216,127.74 (t.s.n. June 28, 1989, pp. 57-58; Exhibits E-Flores, F-
Jacinto G-Ocampo).
As earlier mentioned, Atty. Nisce admitted that he reserved rooms for
those who committed themselves to his candidacy.
The hotel guests of Atty. Nisce were: Gloria Agunos Dennis Habanel B.
Batula, John E. Asuncion, Reynaldo Cortes, Lourdes Santos, Elmer
Datuin, Romualdo Din, Antonio Nalapo, Israel Damasco, Candido
Balbin, Serrano Balot, Ibarra, Joel Llosa, Eltanal, Ruperto, Asuncion, Q.
Pilotin Reymundo P. Guzman, Zoilo Aguinaldo, Clarin, R. Ronquillo,
Dominador Carillo, Filomeno Balinas, Ernesto Sabulan, Yusop
Pangadapun, A. Viray, Icampo, Abelardo Fermin, C. Quiaoit, Augurio
Pamintuan, Daniel Macaraeg, Onofre Tejada.
(6) Campaigning by labor officials for Atty. Violeta Drilon
In violation of the prohibition against "campaigning for or against a
candidate while holding an elective, judicial, quasi-judicial, or
prosecutory office in the Government' (Sec. 14[c], Art. I, IBP By-Laws),
Mariano E. Benedicto II, Assistant Secretary, Department of Labor and
Employment, testified that he took a leave of absence from his office to
attend the IBP convention. He stayed at the Philippine Plaza with the
Drilon group admittedly to give "some moral assistance" to Atty. Violeta
Drilon. He did so because he is a member of the Sigma Rho Fraternity.
When asked about the significance of Sigma Rho, Secretary Benedicto
explained: "More than the husband of Mrs. Drilon being my boss, the
significance there is that the husband is my brother in the Sigma Rho."
He cheered up Mrs., Drilon when her spirits were low. He talked to her
immediate circle which included Art Tiu, Tony Carpio, Nilo Pena, Amy
Wong, Atty. Grapilon, Victor Lazatin, and Boy Reyno. They assessed the
progress of the campaign, and measured the strengths and weaknesses
of the other groups The group had sessions as early as the later part of
May.
Room 114, the suite listed in the name of Assistant Secretary Benedicto
toted up a bill of P23,110 during the 2-day IBP convention/election. A
total of 113 phone calls (amounting to Pl,356) were recorded as
emanating from his room.
Opposite Room 114, was Room 112, also a suite, listed in the names of
Mrs. Drilon, Gladys Tiongco (candidate for Governor, Eastern Mindanao)
and Amy Wong (candidate for Governor, Metro Manila). These two
rooms served as the "action center' or "war room" where campaign
strategies were discussed before and during the convention. It was in
these rooms where the supporters of the Drilon group, like Attys. Carpio,
Callanta, Benedicto, the Quasha and the ACCRA lawyers met to plot
their moves.
(7) Paying the dues or other indebtedness of any number (Sec. 14[e],
IBP BY-Laws).
PINEDAPCGRNMAN
Atty. Teresita C. Sison, IBP Treasurer, testified that she has heard of
candidates paying the IBP dues of lawyers who promised to vote for or
support them, but she has no way of ascertaining whether it was a
candidate who paid the delinquent dues of another, because the receipts
are issued in the name of the member for whom payment is made (t.s.n.
June 28, 1989, pp. 24-28).
She has noticed, though, that there is an upsurge of payments in March,
April, May during any election year. This year, the collections increased
by P100,000 over that of last year (a non-election year from Pl,413,425
to Pl,524,875 (t.s.n. June 28, 1989, p. 25).
(8) Distribution of materials other than bio-data of not more than one
page of legal size sheet of paper (Sec. 14[a], IBP By-Laws).
On the convention floor on the day of the election, Atty. Paculdo caused
to be distributed his bio-data and copies of a leaflet entitled "My Quest,"
as wen as, the lists of his slate. Attys. Drilon and Nisce similarly
distributed their tickets and bio-data.
The campaign materials of Atty. Paculdo cost from P15,000 to P20,000.
They were printed by his own printing shop.
(9) Causing distribution of such statement to be done by persons other
than those authorized by the officer presiding at the election (Sec. 14[b],
IBP By-Laws).
Atty. Paculdo employed uniformed girls to distribute his campaign
materials on the convention floor. Atty. Carpio noted that there were
more campaign materials distributed at the convention site this year than
in previous years. The election was more heated and expensive (t.s.n.
July 6,1989, p. 39).
Atty. Benjamin Bernardino, the incumbent President of the IBP Rizal
Chapter, and a candidate for chairman of the House of Delegates on
Nisce's ticket, testified that campaign materials were distributed during
the convention by girls and by lawyers. He saw members of the ACCRA
law firm campaigning for Atty. Drilon (t.s.n. July 3,1989, pp. 142-145).
(10) Inducing or influencing a member to withhold his vote, or to vote for
or against a candidate (Sec. 14[e], IBP BY-Laws).
Atty. Bernardino disclosed that his cousin, Atty. Romeo Capulong, urged
him to withdraw his candidacy for chairman of the House of Delegates
and to run as vice-chairman in Violy Drilon's slate, but he declined (t.s.n.
July 3,1989, pp. 137, 149).
Atty. Gloria Agunos personnel director of the Hyatt Terraces Hotel in
Baguio and president of the Baguio-Benguet IBP Chapter, recalled that
in the third week of May 1989, after the Tripartite meet of the Department
of Labor & Employment at the Green Valley Country Club in Baguio City,
she met Atty. Drilon, together with two labor officers of Region 1, Attys.
Filomeno Balbin and Atty. Mansala Atty. Drilon solicited her (Atty.
Agunos') vote and invited her to stay at the Philippine Plaza where a
room would be available for her. Atty. Paculdo also tried to enlist her
support during the chapter presidents' meeting to choose their nominee
for governor for the Northern Luzon region (t.s.n. July 13,1989, pp. 43-
54).
Atty. Nisce testified that a Manila Chapter 4 delegate, Marcial Magsino,
who had earlier committed his vote to Nisce changed his mind when he
was offered a judgeship (This statement, however, is admittedly
hearsay). When Nisce confronted Magsino about the alleged offer, the
latter denied that there was such an offer. Nisce's informant was Antonio
G. Nalapo an IBP candidate who also withdrew.
Another Nisce candidate, Cesar Viola, withdrew from the race and
refused to be nominated (t.s.n. June 29, 1989, p. 104). Vicente P. Tordilla
who was Nisce's candidate for Governor became Paculdo's candidate
instead (t.s.n. June 29, 1989, p. 104).
Nisce recalled that during the Bench and Bar Dialogue in Cotabato City,
Court Administrator Tiro went around saying, "I am not campaigning, but
my wife is a candidate." Nisce said that the presidents of several IBP
chapters informed him that labor officials were campaigning for Mrs.
Drilon (t.s.n. June 29,1989, pp. 109-110). He mentioned Ciony de la
Cerna, who allegedly campaigned in La Union (t.s.n. June
Page 124
29,1989,p.111)
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Atty. Joel A. Llosa, Nisce's supporter and candidate for governor of the
Western Visayas, expressed his disappointment over the IBP elections
because some delegates flip-flopped from one camp to another. He
testified that when he arrived at the Manila Domestic Airport he was met
by an assistant regional director of the DOLE who offered to bring him to
the Philippine Plaza, but he declined the offer. During the legal aid
seminar, Atty. Drilon invited him to transfer to the Philippine Plaza where
a room had been reserved for him. He declined the invitation (t.s.n. July
4,1989, pp. 102-106).
Atty. Llosa said that while he was still in Dumaguete City, he already
knew that the three candidates had their headquarters in separate
hotels: Paculdo, at the Holiday Inn; Drilon, at the Philippine Plaza; and
Nisce, at the Hyatt. He knew about this because a week before the
elections, representatives of Atty. Drilon went to Dumaguete City to
campaign. He mentioned Atty. Rodil Montebon of the ACCRA Law
Office, accompanied by Atty. Julve the Assistant Regional Director of the
Department of Labor in Dumaguete City. These two, he said, offered to
give him two PAL tickets and accommodations at the Philippine Plaza
(t.s.n. July 4,1989, pp. 101-104). But he declined the offer because he
was already committed to Atty. Nisce.
Atty. Llosa also revealed that before he left for Manila on May 31, 1989,
a businessman, Henry Dy, approached him to convince him to vote for
Atty. Paculdo. But Llosa told Dy that he was already committed to Nisce.
He did not receive any plane tickets from Atty. Nisce because he and his
two companions (Atty. Eltanal and Atty. Ruperto) had earlier bought their
own tickets for Manila (t.s.n. July 4, 1989, p. 101).
SUMMARY OF CAMPAIGN EXPENSES INCURRED
BY THE CANDIDATES
Atty. Paculdo admitted having spent some P250,000 during his three
weeks of campaigning. Of this amount, the Capitol Bar Association (of
which he was the chapter president) contributed about P150,000. The
Capitol Bar Association is a voluntary bar association composed of
Quezon City lawyers.
He spent about P100,000 to defray the expenses of his trips to the
provinces (Bicol provinces, Pampanga, Abra, Mountain Province and
Bulacan) (t.s.n. June 29,1989, pp. 9-14).
Atty. Nisce's hotel bills at the Hyatt amounted to P216,127.74. This does
not include the expenses for his campaign which began several months
before the June 3rd election, and his purchases of airplane tickets for
some delegates.
The records of the Philippine Plaza Hotel, headquarters of Atty. Drilon's
camp, showed that her campaign rang up over P600,000 in hotel bills.
Atty. Callanta paid P316,411.53 for the rooms, food, and beverage
consumed by Atty. Drilon's supporters, but still left an unpaid bill of
P302,197.30 at convention's end.
FINDINGS.
From all the foregoing, it is evident that the manner in which the principal
candidates for the national positions in the Integrated Bar conducted
their campaign preparatory to the elections on June 3, 1989, violated
Section 14 of the IBP By-Laws and made a travesty of the idea of a
"strictly non-political" Integrated Bar enshrined in Section 4 of the By-
Laws.
The setting up of campaign headquarters by the three principal
candidates (Drilon, Nisce and Paculdo) in five-star hotels: The Philippine
Plaza, the Holiday Inn and The Hyatt the better for them to corral and
entertain the delegates billeted therein; the island hopping to solicit the
votes of the chapter presidents who comprise the 120-member House of
Delegates that elects the national officers and regional governors; the
formation of tickets, slates, or line-ups of candidates for the other elective
positions aligned with, or supporting, either Drilon, Paculdo or Nisce; the
procurement of written commitments and the distribution of nomination
forms to be filled up by the delegates; the reservation of rooms for
delegates in three big hotels, at the expense of the presidential
candidates; the use of a PNB plane by Drilon and some members of her
ticket to enable them to "assess their chances" among the chapter
presidents in the Bicol provinces; the printing and distribution of tickets
PINEDAPCGRNMAN
and bio-data of the candidates which in the case of Paculdo admittedly
cost him some P15,000 to P20,000; the employment of uniformed girls
(by Paculdo) and lawyers (by Drilon) to distribute their campaign
materials on the convention floor on the day of the election; the giving of
assistance by the Undersecretary of Labor to Mrs. Drilon and her group;
the use of labor arbiters to meet delegates at the airport and escort them
to the Philippine Plaza Hotel; the giving of pre-paid plane tickets and
hotel accommodations to delegates (and some families who
accompanied them) in exchange for their support; the pirating of some
candidates by inducing them to "hop" or "flipflop" from one ticket to
another for some rumored consideration; all these practices made a
political circus of the proceedings and tainted the whole election process.
The candidates and many of the participants in that election not only
violated the By-Laws of the IBP but also the ethics of the legal profession
which imposes on all lawyers, as a corollary of their obligation to obey
and uphold the constitution and the laws, the duty to "promote respect
for law and legal processes" and to abstain from 'activities aimed at
defiance of the law or at lessening confidence in the legal system" (Rule
1.02, Canon 1, Code of Professional Responsibility). Respect for law is
gravely eroded when lawyers themselves, who are supposed to be
millions of the law, engage in unlawful practices and cavalierly brush
aside the very rules that the IBP formulated for their observance.
The unseemly ardor with which the candidates pursued the presidency
of the association detracted from the dignity of the legal profession. The
spectacle of lawyers bribing or being bribed to vote one way or another,
certainly did not uphold the honor of the profession nor elevate it in the
public's esteem.
The Court notes with grave concern what appear to be the evasions,
denials and outright prevarications that tainted the statements of the
witnesses, including tome of the candidates, during the initial hearing
conducted by it before its fact-finding committee was created. The
subsequent investigation conducted by this Committee has revealed that
those parties had been less than candid with the Court and seem to have
conspired among themselves to deceive it or at least withhold vital
information from it to conceal the irregularities committed during the
campaign.
CONCLUSIONS.
It has been mentioned with no little insistence that the provision in the
1987 Constitution (See. 8, Art. VIII) providing for a Judicial and Bar
Council composed of seven (7) members among whom is "a
representative of the Integrated Bar," tasked to participate in the
selection of nominees for appointment to vacant positions in the
judiciary, may be the reason why the position of IBP president has
attracted so much interest among the lawyers. The much coveted
"power" erroneously perceived to be inherent in that office might have
caused the corruption of the IBP elections. To impress upon the
participants in that electoral exercise the seriousness of the misconduct
which attended it and the stern disapproval with which it is viewed by this
Court, and to restore the non-political character of the IBP and reduce, if
not entirely eliminate, expensive electioneering for the top positions in
the organization which, as the recently concluded elections revealed,
spawned unethical practices which seriously diminished the stature of
the IBP as an association of the practitioners of a noble and honored
profession, the Court hereby ORDERS:
1. The IBP elections held on June3,1989 should be as they are hereby
annulled.
2. The provisions of the IBP By-Laws for the direct election by the House
of Delegates (approved by this Court in its resolution of July 9, 1985 in
Bar Matter No. 287) of the following national officers:
(a) the officers of the House of Delegates;
(b) the IBP president; and
(c) the executive vice-president,
be repealed, this Court being empowered to amend, modify or repeal the
By-Laws of the IBP under Section 77, Art. XI of said By-Laws.
Page 125
3. The former system of having the IBP President and Executive Vice-
President elected by the Board of Governors (composed of the
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
governors of the nine [91 IBP regions) from among themselves (as
provided in Sec. 47, Art. VII, Original IBP By-Laws) should be restored.
The right of automatic succession by the Executive Vice-President to the
presidency upon the expiration of their two-year term (which was
abolished by this Court's resolution dated July 9,1985 in Bar Matter No.
287) should be as it is hereby restored.
4. At the end of the President's two-year term, the Executive Vice-
President shall automatically succeed to the office of president. The
incoming board of governors shall then elect an Executive Vice-
President from among themselves. The position of Executive Vice-
President shall be rotated among the nine (9) IBP regions. One who has
served as president may not run for election as Executive Vice-President
in a succeeding election until after the rotation of the presidency among
the nine (9) regions shall have been completed; whereupon, the rotation
shall begin anew.
5. Section 47 of Article VII is hereby amended to read as follows:
Section 47. National Officers. The Integrated Bar of the Philippines
shall have a President and Executive Vice-President to be chosen by the
Board of Governors from among nine (9) regional governors, as much
as practicable, on a rotation basis. The governors shall be ex oficio Vice-
President for their respective regions. There shall also be a Secretary
and Treasurer of the Board of Governors to be appointed by the
President with the consent of the Board.
6. Section 33(b), Art. V, IBP By-Laws, is hereby amended as follows:
(b) The President and Executive Vice President of the IBP shall be the
Chairman and Vice-Chairman, respectively, of the House of Delegates.
The Secretary, Treasurer, and Sergeant-at-Arms shall be appointed by
the President with the consent of the House of Delegates.'
7. Section 33(g) of Article V providing for the positions of Chairman, Vice-
Chairman, Secretary-Treasurer and Sergeant-at- Arms of the House of
Delegates is hereby repealed
8. Section 37, Article VI is hereby amended to read as follows:
Section 37. Composition of the Board. The Integrated Bar of the
Philippines shall be governed by a Board of Governors consisting of nine
(9) Governors from the nine (9) regions as delineated in Section 3 of the
Integration Rule, on the representation basis of one (1) Governor for
each region to be elected by the members of the House of Delegates
from that region only. The position of Governor should be rotated among
the different Chapters in the region.
9. Section 39, Article V is hereby amended as follows:
Section 39. Nomination and election of the Governors at least one (1)
month before the national convention the delegates from each region
shall elect the governor for their region, the choice of which shall as much
as possible be rotated among the chapters in the region.
10. Section33(a), Article V hereby is amended by addingthe following
provision as part of the first paragraph:
No convention of the House of Delegates nor of the general membership
shall be held prior to any election in an election year.
11. Section 39, (a), (b), (1), (2), (3), (4), (5), (6), and (7) of Article VI
should be as they are hereby deleted.
All other provisions of the By-Laws including its amendment by the
Resolution en banc of this Court of July 9, 1985 (Bar Matter No. 287) that
are inconsistent herewith are hereby repealed or modified.
12. Special elections for the Board of Governors shall be held in the nine
(9) IBP regions within three (3) months, after the promulgation of the
Court's resolution in this case. Within thirty (30) days thereafter, the
Board of Governors shall meet at the IBP Central Office in Manila to elect
from among themselves the IBP national president and executive vice-
president. In these special elections, the candidates in the election of the
national officers held on June 3,1989, particularly identified in Sub-Head
3 of this Resolution entitled "Formation of Tickets and Single Slates," as
well as those identified in this Resolution as connected with any of the
irregularities attendant upon that election, are ineligible and may not
present themselves as candidate for any position.
13. Pending such special elections, a caretaker board shall be appointed
by the Court to administer the affairs of the IBP. The Court makes clear
PINEDAPCGRNMAN
that the dispositions here made are without prejudice to its adoption in
due time of such further and other measures as are warranted in the
premises.
SO ORDERED.
[A.C No. 4749. January 20, 2000]
SOLIMAN M. SANTOS, JR., complainant, vs. ATTY. FRANCISCO R.
LLAMAS, respondent.
DECISION
MENDOZA, J.:
This is a complaint for misrepresentation and non-payment of bar
membership dues filed against respondent Atty. Francisco R. Llamas.
In a letter-complaint to this Court dated February 8, 1997, complainant
Soliman M. Santos, Jr., himself a member of the bar, alleged that:
On my oath as an attorney, I wish to bring to your attention and
appropriate sanction the matter of Atty. Francisco R. Llamas who, for a
number of years now, has not indicated the proper PTR and IBP O.R.
Nos. and data (date & place of issuance) in his pleadings. If at all, he
only indicates "IBP Rizal 259060" but he has been using this for at least
three years already, as shown by the following attached sample
pleadings in various courts in 1995, 1996 and 1997: (originals available)
Annex A.......- "Ex-Parte Manifestation and Su
25253, RTC, Br. 224, QC
Annex B.......- "Urgent Ex-Parte Manifestation
RTC Br. 259 (not 257), Paraaqu
Annex C.......- "An Urgent and Respectful P
Opposition" dated January 17, 1
This matter is being brought in the context of Rule 138, Section 1 which
qualifies that only a duly admitted member of the bar "who is in good and
regular standing, is entitled to practice law". There is also Rule 139-A,
Section 10 which provides that "default in the payment of annual dues
for six months shall warrant suspension of membership in the Integrated
Bar, and default in such payment for one year shall be a ground for the
removal of the name of the delinquent member from the Roll of
Attorneys."
Among others, I seek clarification (e.g. a certification) and appropriate
action on the bar standing of Atty. Francisco R. Llamas both with the Bar
Confidant and with the IBP, especially its Rizal Chapter of which Atty.
Llamas purports to be a member. Jksm
Please note that while Atty. Llamas indicates "IBP Rizal 259060"
sometimes, he does not indicate any PTR for payment of professional
tax.
Under the Rules, particularly Rule 138, Sections 27 and 28, suspension
of an attorney may be done not only by the Supreme Court but also by
the Court of Appeals or a Regional Trial Court (thus, we are also copy
furnishing some of these courts).
Finally, it is relevant to note the track record of Atty. Francisco R. Llamas,
as shown by:
1........his dismissal as Pasay City Judge per Supreme Court Admin.
Matter No. 1037-CJ En Banc Decision on October 28, 1981 ( in SCRA )
2........his conviction for estafa per Decision dated June 30, 1994 in Crim.
Case No. 11787, RTC Br. 66, Makati, MM (see attached copy of the
Order dated February 14, 1995 denying the motion for reconsideration
of the conviction which is purportedly on appeal in the Court of Appeals).
Attached to the letter-complaint were the pleadings dated December 1,
1995, November 13, 1996, and January 17, 1997 referred to by
complainant, bearing, at the end thereof, what appears to be
respondents signature above his name, address and the receipt number
"IBP Rizal 259060."[1] Also attached was a copy of the order,[2] dated
February 14, 1995, issued by Judge Eriberto U. Rosario, Jr. of the
Page 126
Regional Trial Court, Branch 66, Makati, denying respondents motion for
reconsideration of his conviction, in Criminal Case No. 11787, for
violation of Art. 316, par. 2 of the Revised Penal Code.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
On April 18, 1997, complainant filed a certification[3] dated March 18,
1997, by the then president of the Integrated Bar of the Philippines, Atty.
Ida R. Macalinao-Javier, that respondents "last payment of his IBP dues
was in 1991. Since then he has not paid or remitted any amount to cover
his membership fees up to the present."
On July 7, 1997, respondent was required to comment on the complaint
within ten days from receipt of notice, after which the case was referred
to the IBP for investigation, report and recommendation. In his comment-
memorandum,[4] dated June 3, 1998, respondent alleged:[5]
3. That with respect to the complainants absurd claim that for using in
1995, 1996 and 1997 the same O.R. No. 259060 of the Rizal IBP,
respondent is automatically no longer a member in good standing.
Precisely, as cited under the context of Rule 138, only an admitted
member of the bar who is in good standing is entitled to practice law.
The complainants basis in claiming that the undersigned was no longer
in good standing, were as above cited, the October 28, 1981 Supreme
Court decision of dismissal and the February 14, 1995 conviction for
Violation of Article 316 RPC, concealment of encumbrances. Chief
As above pointed out also, the Supreme Court dismissal decision was
set aside and reversed and respondent was even promoted from City
Judge of Pasay City to Regional Trial Court Judge of Makati, Br. 150.
Also as pointed out, the February 14, 1995 decision in Crim. Case No.
11787 was appealed to the Court of Appeals and is still pending.
Complainant need not even file this complaint if indeed the decision of
dismissal as a Judge was never set aside and reversed, and also had
the decision of conviction for a light felony, been affirmed by the Court of
Appeals. Undersigned himself would surrender his right or privilege to
practice law.
4. That complainant capitalizes on the fact that respondent had been
delinquent in his dues.
Undersigned since 1992 have publicly made it clear per his Income Tax
Return, up to the present, that he had only a limited practice of law. In
fact, in his Income Tax Return, his principal occupation is a farmer of
which he is. His 30 hectares orchard and pineapple farm is located at
Calauan, Laguna.
Moreover, and more than anything else, respondent being a Senior
Citizen since 1992, is legally exempt under Section 4 of Rep. Act 7432
which took effect in 1992, in the payment of taxes, income taxes as an
example. Being thus exempt, he honestly believe in view of his
detachment from a total practice of law, but only in a limited practice, the
subsequent payment by him of dues with the Integrated Bar is covered
by such exemption. In fact, he never exercised his rights as an IBP
member to vote and be voted upon.
Nonetheless, if despite such honest belief of being covered by the
exemption and if only to show that he never in any manner wilfully and
deliberately failed and refused compliance with such dues, he is willing
at any time to fulfill and pay all past dues even with interests, charges
and surcharges and penalties. He is ready to tender such fulfillment or
payment, not for allegedly saving his skin as again irrelevantly and
frustratingly insinuated for vindictive purposes by the complainant, but
as an honest act of accepting reality if indeed it is reality for him to pay
such dues despite his candor and honest belief in all food faith, to the
contrary. Esmsc
On December 4, 1998, the IBP Board of Governors passed a
resolution[6] adopting and approving the report and recommendation of
the Investigating Commissioner which found respondent guilty, and
recommended his suspension from the practice of law for three months
and until he pays his IBP dues. Respondent moved for a reconsideration
of the decision, but this was denied by the IBP in a resolution, [7] dated
April 22, 1999. Hence, pursuant to Rule 139-B, 12(b) of the Rules of
Court, this case is here for final action on the decision of the IBP ordering
respondents suspension for three months.
The findings of IBP Commissioner Alfredo Sanz are as follows:
On the first issue, Complainant has shown "respondents non-indication
of the proper IBP O.R. and PTR numbers in his pleadings (Annexes "A",
PINEDAPCGRNMAN
"B" and "C" of the letter complaint, more particularly his use of "IBP Rizal
259060 for at least three years."
The records also show a "Certification dated March 24, 1997 from IBP
Rizal Chapter President Ida R. Makahinud Javier that respondents last
payment of his IBP dues was in 1991."
While these allegations are neither denied nor categorically admitted by
respondent, he has invoked and cited that "being a Senior Citizen since
1992, he is legally exempt under Section 4 of Republic Act No. 7432
which took effect in 1992 in the payment of taxes, income taxes as an
example."
....
The above cited provision of law is not applicable in the present case. In
fact, respondent admitted that he is still in the practice of law when he
alleged that the "undersigned since 1992 have publicly made it clear per
his Income tax Return up to the present time that he had only a limited
practice of law." (par. 4 of Respondents Memorandum).
Therefore respondent is not exempt from paying his yearly dues to the
Integrated Bar of the Philippines. Esmmis
On the second issue, complainant claims that respondent has misled the
court about his standing in the IBP by using the same IBP O.R. number
in his pleadings of at least six years and therefore liable for his actions.
Respondent in his memorandum did not discuss this issue.
First. Indeed, respondent admits that since 1992, he has engaged in law
practice without having paid his IBP dues. He likewise admits that, as
appearing in the pleadings submitted by complainant to this Court, he
indicated "IBP-Rizal 259060" in the pleadings he filed in court, at least
for the years 1995, 1996, and 1997, thus misrepresenting that such was
his IBP chapter membership and receipt number for the years in which
those pleadings were filed. He claims, however, that he is only engaged
in a "limited" practice and that he believes in good faith that he is exempt
from the payment of taxes, such as income tax, under R.A. No. 7432, 4
as a senior citizen since 1992.
Rule 139-A provides:
Sec. 9. Membership dues. - Every member of the Integrated Bar shall
pay such annual dues as the Board of Governors shall determine with
the approval of the Supreme Court. A fixed sum equivalent to ten percent
(10%) of the collections from each Chapter shall be set aside as a
Welfare Fund for disabled members of the Chapter and the compulsory
heirs of deceased members thereof.
Sec. 10. Effect of non-payment of dues. - Subject to the provisions of
Section 12 of this Rule, default in the payment of annual dues for six
months shall warrant suspension of membership in the Integrated Bar,
and default in such payment for one year shall be a ground for the
removal of the name of the delinquent member from the Roll of
Attorneys.
In accordance with these provisions, respondent can engage in the
practice of law only by paying his dues, and it does not matter that his
practice is "limited." While it is true that R.A. No. 7432, 4 grants senior
citizens "exemption from the payment of individual income taxes:
provided, that their annual taxable income does not exceed the poverty
level as determined by the National Economic and Development
Authority (NEDA) for that year," the exemption does not include payment
of membership or association dues.
Second. By indicating "IBP-Rizal 259060" in his pleadings and thereby
misrepresenting to the public and the courts that he had paid his IBP
dues to the Rizal Chapter, respondent is guilty of violating the Code of
Professional Responsibility which provides:
Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct.
CANON 7 - A LAWYER SHALL AT ALL TIMES UPHOLD THE
INTEGRITY AND DIGNITY OF THE LEGAL PROFESSION, AND
SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR. Esmso
CANON 10 - A LAWYER OWES CANDOR, FAIRNESS AND GOOD
FAITH TO THE COURT.
Page 127
Intelligentia et Scientia Semper Mea
LEGAL ETHICS PINEDAPCGRNMAN
Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the
Labor and
doing of any court; nor shall he mislead or allow the court to be misled
Social 10% 11.765% 2 2.35%
by any artifice.
Legislation
Respondents failure to pay his IBP dues and his misrepresentation in the
pleadings he filed in court indeed merit the most severe penalty. Civil law 15% 17.647% 3 3.53%
However, in view of respondents advanced age, his express willingness
to pay his dues and plea for a more temperate application of the Taxation 10% 11.765% 2 2.35%
law,[8] we believe the penalty of one year suspension from the practice
of law or until he has paid his IBP dues, whichever is later, is appropriate. Criminal law 10% 11.765% 2 2.35%
WHEREFORE, respondent Atty. Francisco R. Llamas is SUSPENDED
from the practice of law for ONE (1) YEAR, or until he has paid his IBP Remedial
20% 23.529% 4 4.71%
dues, whichever is later. Let a copy of this decision be attached to Atty. Law
Llamas personal record in the Office of the Bar Confidant and copies be
furnished to all chapters of the Integrated Bar of the Philippines and to Legal Ethics
all courts in the land. and
5% 5.882% 1 1.18%
SO ORDERED. Practical
Exercises
B.M. No. 1222 February 4, 2004
Re: 2003 BAR EXAMINATIONS
RESOLUTION 100% 20%
PER CURIAM: In another resolution, dated 14 October 2003, the Court designated the
On 22 September 2003, the day following the bar examination in following retired Associate Justices of the Supreme Court to compose
Mercantile Law, Justice Jose C. Vitug, Chairman of the 2003 Bar the Investigating Committee:
Examinations Committee, was apprised of a rumored leakage in the
examination on the subject. After making his own inquiries, Justice Vitug Chairman: Justice Carolina C. Grio-Aquino
reported the matter to Chief Justice Hilario G. Davide, Jr., and to the
Members: Justice Jose A.R. Melo
other members of the Court, recommending that the bar examination on
Justice Vicente V. Mendoza
the subject be nullified and that an investigation be conducted forthwith.
On 23 September 2003, the Court adopted the recommendation of The Investigating Committee was tasked to determine and identify the
Justice Vitug, and resolved to nullify the examination in Mercantile Law source of leakage, the parties responsible therefor or who might have
and to hold another examination on 04 October 2003 at eight oclock in benefited therefrom, recommend sanctions against all those found to
the evening (being the earliest available time and date) at the De La Salle have been responsible for, or who would have benefited from, the
University, Taft Avenue, Manila. The resolution was issued without incident in question and to recommend measures to the Court to
prejudice to any action that the Court would further take on the matter. safeguard the integrity of the bar examinations.
Following the issuance of the resolution, the Court received numerous On 15 January 2004, the Investigating Committee submitted its report
petitions and motions from the Philippine Association of Law Schools and recommendation to the Court, herein reproduced in full; thus -
and various other groups and persons, expressing agreement to the "In the morning of September 21, 2003, the third Sunday of the 2003 bar
nullification of the bar examinations in Mercantile Law but voicing strong examinations, the examination in commercial law was held in De la Salle
reservations against the holding of another examination on the subject. University on Taft Avenue, Manila, the venue of the bar examinations
Several reasons were advanced by petitioners or movants, among these since 1995. The next day, the newspapers carried news of an alleged
reasons being the physical, emotional and financial difficulties that would leakage in the said examination.1
be encountered by the examinees, if another examination on the subject "Upon hearing the news and making preliminary inquiries of his own,
were to be held anew. Alternative proposals submitted to the Court Justice Jose C. Vitug, chairman of the 2003 Bar Examinations
included the spreading out of the weight of Mercantile Law among the Committee, reported the matter to the Chief Justice and recommended
remaining seven bar subjects, i.e., to determine and gauge the results of that the examination in mercantile law be cancelled and that a formal
the examinations on the basis only of the performance of the examinees investigation of the leakage be undertaken.
in the seven bar subjects. In a resolution, dated 29 September 2003, the "Acting on the report and recommendation of Justice Vitug, the Court, in
Court, finding merit in the submissions, resolved to cancel the scheduled a resolution dated September 23, 2003, nullified the examination in
examination in Mercantile Law on 04 October 2003 and to allocate the mercantile law and resolved to hold another examination in that subject
fifteen percentage points among the seven bar examination subjects. In on Saturday, October 4, 2003 at eight oclock in the evening (being the
the same resolution, the Court further resolved to create a Committee earliest available time and date) at the same venue. However, because
composed of three retired members of the Court that would conduct a numerous petitions, protests, and motions for reconsideration were filed
thorough investigation of the incident subject of the 23 September 2003 against the retaking of the examination in mercantile law, the Court
resolution. cancelled the holding of such examination. On the recommendation of
In a resolution, dated 07 October 2003, the Court adopted the the Office of the Bar Confidant, the Court instead decided to allocate the
computation in the allocation of the fifteen percentage points for fifteen (15) percentage points for mercantile law among the seven (7)
Mercantile Law among the remaining seven bar examination subjects, to other bar examination subjects (Resolution dated October 7, 2003).
wit: "In a Resolution dated September 29, 2003, the Supreme Court created
an Investigating Committee composed of three (3) retired Members of
Original Adjusted Adjusted
Relative the Court to conduct an investigation of the leakage and to submit its
Subject Percentage Percentage Relative
Weight findings and recommendations on or before December 15, 2003.
Weight Weight Weight
"The Court designated the following retired Associate Justices of the
Political and Supreme Court to compose the Committee:
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International 15% 17.647% 3 3.53% Chairman: Justice CAROLINA GRIO-AQUINO

Law

Intelligentia et Scientia Semper Mea

LEGAL ETHICS
Members: Justice JOSE A. R. MELO
Justice VICENTE V. MENDOZA
"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 Magdoza-Malagar, 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 the Lex Review
Center;
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 Delgado-
Carbajosa, 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 hard-pressed 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-concluded-examination.
"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.
"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
PINEDAPCGRNMAN
examination. The questions prepared by Justice Vitug were not among
the leaked test questions.
"Apart from the published news stories about the leakage, Chief Justice
Hilario G. Davide, Jr. and Justice Vitug received, by telephone and mail,
reports of the leakage from Dean Mariano F. Magsalin, Jr. of the Arellano
Law Foundation (Exh. H) and a certain Dale Philip R. De los Reyes (Exh.
B -B-3), attaching copies of the leaked questions and the fax transmittal
sheet showing that the source of the questions was Danny De Guzman
who faxed them to Ronan Garvida on September 17, 2003, four days
before the examination in mercantile law on September 21, 2003 (Exh.
B-1).
"ATTORNEY MARLO MAGDOZA-MALAGAR was subpoenaed by the
Committee. She identified the copy of the leaked questions that came
from Cecilia Carbajosa (Exh. A). She testified that, according to
Carbajosa, the latter received the test questions from one of her co-bar
reviewees staying, like her, at the Garden Plaza Hotel in Paco, and also
enrolled in the review classes at the Lex Review Center at the corner of
P. Faura Street and Roxas Boulevard, Ermita. She did not pay for the
hand-out because the Lex Review Center gives them away for free to its
bar reviewees.
"ATTORNEY MARCIAL O. T. BALGOS, 71 years of age, senior partner
in the law firm of BALGOS AND PEREZ with offices in Rm. 1009 West
Tektite Tower, Exchange Road, Ortigas Center, Pasig City, testified that
in November 2002, Justice Jose C. Vitug, as chair of the Committee on
the 2003 Bar Examinations, invited him to be the examiner in commercial
law. He accepted the assignment and almost immediately began the
preparation of test questions on the subject. Using his personal computer
in the law office, he prepared for three consecutive days, three (3) sets
of test questions which covered the entire subject of Mercantile Law (pp.
3-5, tsn, Oct. 24, 2003). As he did not know how to prepare the
questionnaire in final form, he asked his private secretary, Cheryl Palma,
to format the questions (p. 13, tsn, Oct. 24, 2003). And, as he did not
know how to print the questionnaire, he likewise asked Cheryl Palma to
make a print-out (Id., pp. 14-15). All of this was done inside his office with
only him and his secretary there. His secretary printed only one copy (Id.,
p. 15). He then placed the printed copy of the test questions, consisting
of three sets, in an envelope which he sealed, and called up Justice Vitug
to inform him that he was bringing the questions to the 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
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connected to the internet (Exh. M). Atty. Balgos law partner, former
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LEGAL ETHICS
Justice Secretary Hernando Perez, also had a computer, but Perez took
it away when he became the Secretary of Justice.
"The nine (9) assistant attorneys with computers, connected to Attorney
Balgos computer, are:
1. Zorayda Zosobrado (she resigned in July 2003)
2. Claravel Javier
3. Rolynne Torio
4. Mark Warner Rosal
5. Charlynne Subia
6. Danilo De Guzman (resigned on October 22, 2003 [Exh. D])
7. Enrico G. Velasco, managing partner
8. Concepcion De los Santos
9. Pamela June Jalandoni
"Upon learning from Justice Vitug of the leakage of the bar questions
prepared by him in mercantile law, Atty. Balgos immediately called
together and questioned his office staff. He interrogated all of them
except Atty. Danilo De Guzman who was absent then. All of them
professed to know nothing about the bar leakage.
"He questioned Silvestre Atienza, the office manager, Atienza is only a
second year law student at MLQU. But he is an expert in installing and
operating computers. It was he and/or his brother Gregorio who
interconnected the computers in the law office, including Attorney
Balgos computer, without the 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 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
PINEDAPCGRNMAN
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 examination was
over, Garvida texted (sent a text message on his cell phone) him (De
Guzman), that he did not take the bar examination.
"Besides Garvida, De Guzman faxed the mercantile law bar questions to
another fraternity brother named Arlan (surname unknown), through
Reynita (Nanette) Villasis, his secretary (Tsn, pp. 20-28, Oct. 29, 2003).
But he himself faxed the questions to still another brod named Erwin
Tan who had helped him during the bar ops in 1998 when he (De
Guzman) took the bar examinations (Id., p. 28). He obtained the cell
phone numbers of Arlan and Erwin Tan from Gabby Tanpiengco whom
he informed by text message, that they were guide questions, not tips,
in the mercantile law examination.
"When he was confronted by Attorney Velasco on Wednesday after the
examination, (news of the leakage was already in all the newspapers),
De Guzman admitted to Attorney Velasco that he faxed the questions to
his fraternity brothers, but he did not reveal where he got the test
questions.
"De Guzman received a text message from Erwin Tan acknowledging
that he received the test questions. However, Erwin informed him that
the questions were kalat na kalat (all over the place) even if he did not
share them with others (Tsn, pp. 54-55, Oct. 29, 2003).
"De Guzman also contacted Garvida who informed him that he gave
copies of the test questions to Betans Randy Iigo and James Bugain.
"Arlan also texted De Guzman that almost all the questions were asked
in the examination. Erwin Tan commented that many of the leaked
questions were asked in the examination, pero hindi exacto; mi binago
(they were not exactly the same; there were some changes).
"De Guzman tried to text Garvida, but he received no response.
"De Guzman disclosed that he learned how to operate a computer from
Silvestre Atienza, the office manager, and through self-study, by asking
those who are knowledgeable on computers. He has been using
computers since 1997, and he bought his own computer in 2001, a
Pentium 3, which he uses at home.
"REYNITA VILLASIS, the 36-year-old legal secretary of Attorney De
Guzman, submitted her affidavit (Exh. F) and orally affirmed her
participation in the reproduction and transmittal by fax of the leaked test
questions in mercantile law to Ronan Garvida and Arlan, as testified by
De Guzman.
"RONAN GARVIDA, appeared before the Investigating Committee in
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compliance with the subpoena that was issued to him. Garvida
graduated from FEU College of Law in 2000. He is about 32 years of
Intelligentia et Scientia Semper Mea
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 Hospital in Quezon City for treatment. This he did.
"He gave up his plan to take the 2003 bar examinations. Nevertheless,
he continued to attend the review classes at the Consortium Review
Center because he did not want to waste completely the P10,000-
enrollment fee that he paid for the review course (Nahihinayang ako).
That was presumably why De Guzman thought that Garvida was taking
the bar exams and sent him a copy of the test questions in mercantile
law.
"Upon receipt of the test questions, Garvida faxed a copy to his brod
Randy 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.
"In view of the fact that one of the copies of the leaked test questions
(Exh. H) bore on the left margin a rubber stamp composed of the Greek
initials BEA-MLQU, indicating that the source of that copy was the Beta
Sigma Lambda chapter at MLQU, the Committee subpoenaed Ronald
Collado, the Most Illustrious Brother of the Beta Sigma Lambda fraternity
of MLQU.
"RONALD COLLADO is a senior law student at the MLQU. He admitted
that his fraternity conducted Bar Ops for the 2003 bar exams. Bar Ops
are the biggest activity of the fraternity every year. They start as soon as
new officers of the fraternity are elected in June, and they continue until
the bar examinations are over. The bar operations consist of soliciting
funds from alumni brods and friends to be spent in reproducing bar
review materials for the use of their barristers (bar candidates) in the
various review centers, providing meals for their brod-barristers on
examination days; and to rent a bar site or place near De la Salle
University where the examinees and the frat members can convene and
take their meals during the break time. The Betans bar site for the 2003
bar examinations was located on Leon Guinto Street, Malate. On
September 19 and 21, before [the] start of the examination, 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.
PINEDAPCGRNMAN
"Collado caused 30 copies of the test questions to be printed with the
logo and initials of the fraternity (BEA-MLQU) for distribution to the 30
MLQU examinees taking the bar exams. Because of time constraints,
frat members were unable to answer the test questions despite the
clamor for answers, so, they were given out as is - without answers.
"DEAN EDUARDO J. F. ABELLA of the Jose Rizal University law school
in Mandaluyong City, was the reviewer in Mercantile Law and Practical
Exercises at the Lex Review Center which is operated by the Lex Review
& Seminars Inc., of which Dean Abella is one of the incorporators. He
learned about the leakage of test questions in mercantile law when he
was delivering the pre-week lecture on Legal Forms at the Arellano
University. The leaked 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.
"F I N D I N G S
"The Committee finds that the leaked test questions in Mercantile Law
were the questions which the examiner, Attorney Marcial O. T. Balgos,
had prepared and submitted to Justice Jose C. Vitug, as chairman of the
2003 Bar Examinations Committee. The questions constituted 82% of
the questions asked in the examination in Mercantile Law in the morning
of September 21, 2003, Sunday, in some cases with slight changes
which were not substantial and in other cases exactly as proposed by
Atty. Balgos. Hence, any bar examinee who was able to get hold of the
leaked questions before the mercantile law examination and answered
them correctly, would have been assured of passing the examination
with at least a grade of 82%!
"The circumstance that the leaked test questions consisted entirely of
test questions prepared by Atty. Balgos, proves conclusively that the
leakage originated from his office, not from the Office of Justice Vitug,
the Bar Examinations Chairman.
"Atty. Balgos claimed that the leaked test questions were prepared by
him on his computer. Without any doubt, the source of the leaked test
questions was Atty. Balgos computer. The culprit who stole or
downloaded them from Atty. Balgos computer without the 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).
"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.
Page 131
"By transmitting and distributing the stolen test questions to some
members of the Beta Sigma Lambda Fraternity, possibly for pecuniary
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LEGAL ETHICS
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 motivated solely by a desire to help the fraternity, for the leakage
was widespread (kalat na kalat) according to Erwin Tan. The possible
co-conspirators were:
Ronan Garvida,
Arlan,
Erwin Tan,
Randy Iigo,
Ronald Collado, and
Allan Guiapal
"The Committee does not believe that De Guzman recklessly broke the
law and risked his job and future as a lawyer, out of love for the Beta
Sigma Lambda fraternity. There must have been an ulterior material
consideration for his breaking the law and tearing the shroud of secrecy
that, he very well knows, covers the bar examinations.
"On the other hand, the Committee finds that the theft of the test
questions from Atty. Balgos computer could have been avoided if Atty.
Balgos had exercised due diligence in safeguarding the secrecy of the
test questions which he prepared. As the computer is a powerful modern
machine which he admittedly is not fairly familiar with, he should not have
trusted it to deep secret the test questions that he stored in its hard disk.
He admittedly did not know the password of his computer. He relied on
his secretary to use the password to open and close his computer. He
kept his computer in a room to which other persons had access.
Unfamiliar with the use of the machine whose potential for mischief he
could not have been totally unaware of, he should have avoided its use
for so sensitive an undertaking as typing the questions in the bar
examination. After all he knew how to use the typewriter in the use of
which he is quite proficient. Atty. Balgos should therefore have prepared
the test questions in his trusty typewriter, in the privacy of his home,
PINEDAPCGRNMAN
(instead of his law office), where they would have been safe from the
prying eyes of secretaries and assistant attorneys. Atty. Balgos
negligence in the preparation and safekeeping of his proposed test
questions for the bar examination in mercantile law, was not the
proximate cause of the bar leakage; it was, in fact, the root cause. For,
if he had taken those simple precautions to protect the secrecy of his
papers, nobody could have stolen them and copied and circulated them.
The integrity of the bar examinations would not have been sullied by the
scandal. He admitted that Mali siguro ako, but that was what happened
(43 tsn, Oct. 24, 2003).
"R E C O M M E N D A T I O N
"This Honorable court in the case of Burbe v. Magulta, A.C. No. 5713,
June 10, 2002, 383 SCRA 276, pronounced the following reminder for
lawyers: Members of the bar must do nothing that may tend to lessen in
any degree the confidence of the public in the fidelity, the honesty and
integrity of the profession. In another case, it likewise intoned: We
cannot overstress the duty of a lawyer to at all times uphold the integrity
and dignity of the legal profession. He can do this by faithfully performing
his duties to society, to the bar, to the courts, and to his clients. (Reyes
v. Javier, A.C. No. 5574, February 2, 2002, 375 SCRA 538). It goes
without saying that a lawyer who violates this precept of the profession
by committing a gross misconduct which dishonors and diminishes the
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 co-conspirators in the theft and leakage
of the test questions in mercantile law.
"With regard to recommending measures to safeguard the integrity of the
bar examinations and prevent a repetition of future leakage in the said
examinations, inasmuch as this matter is at present under study by the
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 matter."3
The Court adopts the report, including with some modifications the
recommendation, of the Investigating Committee. The Court, certainly
will not countenance any act or conduct that can impair not only the
integrity of the Bar Examinations but the trust reposed on the Court.
The Court also takes note that Mr. Jovito M. Salonga and Mr. Benjamin
R. Katly, two of its employees assigned to the Management Information
Systems Office (MISO), who were tasked by the Investigating Committee
to inspect the computer system in the office of Atty. Balgos, found that
the Courts Computer-Assisted Legal Research (CALR) database4 was
installed in the computer used by Atty. Balgos. Mr. Salonga and Mr. Katly
Page 132
reported that the system, which was developed by the MISO, was
intended for the exclusive use of the Court. The installation thereof to
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
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 law effective
upon his receipt of this RESOLUTION;
(2) REPRIMAND Atty. MARCIAL O.T. BALGOS and DISENTITLE him
from receiving any honorarium as an Examiner in Mercantile Law;
(3) Direct the National Bureau of Investigation (a) to undertake further
investigation of Danilo De Guzman, Cheryl Palma, Silvestre Atienza,
Ronan Garvida, Erwin Tan, Randy 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.
[B.M. No. 1370. May 9, 2005]
LETTER OF ATTY. CECILIO Y. AREVALO, JR., REQUESTING
EXEMPTION FROM PAYMENT OF IBP DUES.
DECISION
CHICO-NAZARIO, J.:
This is a request for exemption from payment of the Integrated Bar of the
Philippines (IBP) dues filed by petitioner Atty. Cecilio Y. Arevalo, Jr.
In his letter,[1] dated 22 September 2004, petitioner sought exemption
from payment of IBP dues in the amount of P12,035.00 as alleged unpaid
accountability for the years 1977-2005. He alleged that after being
admitted to the Philippine Bar in 1961, he became part of the Philippine
Civil Service from July 1962 until 1986, then migrated to, and worked in,
the USA in December 1986 until his retirement in the year 2003. He
maintained that he cannot be assessed IBP dues for the years that he
was working in the Philippine Civil Service since the Civil Service law
prohibits the practice of ones profession while in government service,
and neither can he be assessed for the years when he was working in
the USA.
On 05 October 2004, the letter was referred to the IBP for comment.[2]
On 16 November 2004, the IBP submitted its comment[3] stating inter
alia: that membership in the IBP is not based on the actual practice of
law; that a lawyer continues to be included in the Roll of Attorneys as
long as he continues to be a member of the IBP; that one of the
obligations of a member is the payment of annual dues as determined
by the IBP Board of Governors and duly approved by the Supreme Court
as provided for in Sections 9 and 10, Rule 139-A of the Rules of Court;
that the validity of imposing dues on the IBP members has been upheld
as necessary to defray the cost of an Integrated Bar Program; and that
the policy of the IBP Board of Governors of no exemption from payment
of dues is but an implementation of the Courts directives for all members
of the IBP to help in defraying the cost of integration of the bar. It
maintained that there is no rule allowing the exemption of payment of
annual dues as requested by respondent, that what is allowed is
voluntary termination and reinstatement of membership. It asserted that
what petitioner could have done was to inform the secretary of the IBP
of his intention to stay abroad, so that his membership in the IBP could
have been terminated, thus, his obligation to pay dues could have been
stopped. It also alleged that the IBP Board of Governors is in the process
of discussing proposals for the creation of an inactive status for its
members, which if approved by the Board of Governors and by this
PINEDAPCGRNMAN
Court, will exempt inactive IBP members from payment of the annual
dues.
In his reply[4] dated 22 February 2005, petitioner contends that what he
is questioning is the IBP Board of Governors Policy of Non-Exemption in
the payment of annual membership dues of lawyers regardless of
whether or not they are engaged in active or inactive practice. He
asseverates that the Policy of Non-Exemption in the payment of annual
membership dues suffers from constitutional infirmities, such as equal
protection clause and the due process clause. He also posits that
compulsory payment of the IBP annual membership dues would
indubitably be oppressive to him considering that he has been in an
inactive status and is without income derived from his law practice. He
adds that his removal from nonpayment of annual membership dues
would constitute deprivation of property right without due process of law.
Lastly, he claims that non-practice of law by a lawyer-member in inactive
status is neither injurious to active law practitioners, to fellow lawyers in
inactive status, nor to the community where the inactive lawyers-
members reside.
Plainly, the issue here is: whether or nor petitioner is entitled to
exemption from payment of his dues during the time that he was inactive
in the practice of law that is, when he was in the Civil Service from 1962-
1986 and he was working abroad from 1986-2003?
We rule in the negative.
An Integrated Bar is a State-organized Bar, to which every lawyer must
belong, as distinguished from bar association organized by individual
lawyers themselves, membership in which is voluntary. Integration of the
Bar is essentially a process by which every member of the Bar is afforded
an opportunity to do his shares in carrying out the objectives of the Bar
as well as obliged to bear his portion of its responsibilities. Organized by
or under the direction of the State, an Integrated Bar is an official national
body of which all lawyers are required to be members. They are,
therefore, subject to all the rules prescribed for the governance of the
Bar, including the requirement of payment of a reasonable annual fee for
the effective discharge of the purposes of the Bar, and adherence to a
code of professional ethics or professional responsibility, breach of which
constitutes sufficient reason for investigation by the Bar and, upon proper
cause appearing, a recommendation for discipline or disbarment of the
offending member.[5]
The integration of the Philippine Bar means the official unification of the
entire lawyer population. This requires membership and financial support
of every attorney as condition sine qua non to the practice of law and the
retention of his name in the Roll of Attorneys of the Supreme Court.[6]
Bar integration does not compel the lawyer to associate with anyone. He
is free to attend or not to attend the meetings of his Integrated Bar
Chapter or vote or refuse to vote in its elections as he chooses. The only
compulsion to which he is subjected is the payment of his annual dues.
The Supreme Court, in order to foster the States legitimate interest in
elevating the quality of professional legal services, may require that the
cost of improving the profession in this fashion be shared by the subjects
and beneficiaries of the regulatory program the lawyers.[7]
Moreover, there is nothing in the Constitution that prohibits the Court,
under its constitutional power and duty to promulgate rules concerning
the admission to the practice of law and in the integration of the
Philippine Bar[8] - which power required members of a privileged class,
such as lawyers are, to pay a reasonable fee toward defraying the
expenses of regulation of the profession to which they belong. It is quite
apparent that the fee is, indeed, imposed as a regulatory measure,
designed to raise funds for carrying out the noble objectives and
purposes of integration.
The rationale for prescribing dues has been explained in the Integration
of the Philippine Bar,[9] thus:
For the court to prescribe dues to be paid by the members does not mean
that the Court is attempting to levy a tax.
A membership fee in the Bar association is an exaction for regulation,
Page 133
while tax purpose of a tax is a revenue. If the judiciary has inherent power
to regulate the Bar, it follows that as an incident to regulation, it may
Intelligentia et Scientia Semper Mea
LEGAL ETHICS PINEDAPCGRNMAN
impose a membership fee for that purpose. It would not be possible to public or private life, behave in a scandalous manner to the
put on an integrated Bar program without means to defray the expenses. discredit of the legal profession.
The doctrine of implied powers necessarily carries with it the power to Upright character; not mere absence of bad character.
impose such exaction. A lawyer must at all times conduct himself properly as not to
The only limitation upon the States power to regulate the privilege of law put into question his fitness to practice law.
is that the regulation does not impose an unconstitutional burden. The
Avoid scandalous conduct; not only required to refrain from
public interest promoted by the integration of the Bar far outweighs the
adulterous relationships or the keeping of mistress but must
slight inconvenience to a member resulting from his required payment of
also behave himself as to avoid scandalizing the public by
the annual dues.
creating the belief that he is flouting those moral standards.
Thus, payment of dues is a necessary consequence of membership in
the IBP, of which no one is exempt. This means that the compulsory
[A.C. No. 4921. March 6, 2003]
nature of payment of dues subsists for as long as ones membership in
CARMELITA I. ZAGUIRRE, complainant, vs. ATTY. ALFREDO
the IBP remains regardless of the lack of practice of, or the type of
CASTILLO, respondent.
practice, the member is engaged in.
DECISION
There is nothing in the law or rules which allows exemption from payment
PER CURIAM:
of membership dues. At most, as correctly observed by the IBP, he could
Before this Court is a Petition for Disbarment filed by Carmelita I.
have informed the Secretary of the Integrated Bar of his intention to stay
Zaguirre against Atty. Alfredo Castillo on the ground of Gross Immoral
abroad before he left. In such case, his membership in the IBP could
Conduct.
have been terminated and his obligation to pay dues could have been
The facts as borne by the records are as follows:
discontinued.
Complainant and respondent met sometime in 1996 when the two
As abovementioned, the IBP in its comment stated that the IBP Board of
became officemates at the National Bureau of Investigation
Governors is in the process of discussing the situation of members under
(NBI).[1] Respondent courted complainant and promised to marry her
inactive status and the nonpayment of their dues during such inactivity.
while representing himself to be single.[2] Soon they had an intimate
In the meantime, petitioner is duty bound to comply with his obligation to
relationship that started sometime in 1996 and lasted until 1997.[3] During
pay membership dues to the IBP.
their affair, respondent was preparing for the bar examinations which he
Petitioner also contends that the enforcement of the penalty of removal
passed. On May 10, 1997, he was admitted as a member of the
would amount to a deprivation of property without due process and
Philippine Bar.[4] It was only around the first week of May 1997 that
hence infringes on one of his constitutional rights.
complainant first learned that respondent was already married when his
This question has been settled in the case of In re Atty. Marcial
wife went to her office and confronted her about her relationship with
Edillon,[10] in this wise:
respondent.[5] On September 10, 1997, respondent, who by now is a
. . . Whether the practice of law is a property right, in the sense of its
lawyer, executed an affidavit, admitting his relationship with the
being one that entitles the holder of a license to practice a profession,
complainant and recognizing the unborn child she was carrying as
we do not here pause to consider at length, as it [is] clear that under the
his.[6] On December 09, 1997, complainant gave birth to a baby girl,
police power of the State, and under the necessary powers granted to
Aletha Jessa.[7] By this time however, respondent had started to refuse
the Court to perpetuate its existence, the respondents right to practice
recognizing the child and giving her any form of support.[8]
law before the courts of this country should be and is a matter subject to
Respondent claims that: he never courted the complainant; what
regulation and inquiry. And, if the power to impose the fee as a regulatory
transpired between them was nothing but mutual lust and desire; he
measure is recognize[d], then a penalty designed to enforce its payment,
never represented himself as single since it was known in the NBI that
which penalty may be avoided altogether by payment, is not void as
he was already married and with children;[9] complainant is almost 10
unreasonable or arbitrary.
years older than him and knew beforehand that he is already
But we must here emphasize that the practice of law is not a property
married;[10] the child borne by complainant is not his, because the
right but a mere privilege, and as such must bow to the inherent
complainant was seeing other men at the time they were having an
regulatory power of the Court to exact compliance with the lawyers public
affair.[11] He admits that he signed the affidavit dated September 10,
responsibilities.
1997 but explains that he only did so to save complainant from
As a final note, it must be borne in mind that membership in the bar is a
embarrassment. Also, he did not know at the time that complainant was
privilege burdened with conditions,[11] one of which is the payment of
seeing other men.[12]
membership dues. Failure to abide by any of them entails the loss of
After due hearing, the IBP Commission on Bar Discipline found Atty.
such privilege if the gravity thereof warrants such drastic move.
Alfredo Castillo guilty of gross immoral conduct and recommends that he
WHEREFORE, petitioners request for exemption from payment of IBP
be meted the penalty of indefinite suspension from the practice of law.
dues is DENIED. He is ordered to pay P12,035.00, the amount assessed
The Court agrees with the findings and recommendation of the IBP.
by the IBP as membership fees for the years 1977-2005, within a non-
The Code of Professional Responsibility provides:
extendible period of ten (10) days from receipt of this decision, with a
Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or
warning that failure to do so will merit his suspension from the practice
deceitful conduct.
of law.
xxx xxx xxx
SO ORDERED.
CANON 7 - A lawyer shall at all times uphold the integrity and dignity of
the legal profession, and support the activities of the Integrated Bar.
Rule 7.01 A lawyer shall be answerable for knowingly making
xxx xxx xxx
false statements or suppressing a material fact, in connection with
Rule 7.03 - A lawyer shall not engage in conduct that adversely reflects
his application for admission to the bar.
on his fitness to practice law, nor should he, whether in public or private
life, behave in a scandalous manner to the discredit of the legal
Rule 7.02 A lawyer shall not support application for admission to
profession.
the bar by any person known to him or be unqualified in respect to
Immoral conduct has been defined as:
character, education, or other relevant attribute.
xxx that conduct which is so willful, flagrant, or shameless as to show
Page 134

indifference to the opinion of good and respectable members of the

Rule 7.03 A lawyer shall not engage in conduct that adversely
community. Furthermore, such conduct must not only be immoral,
reflects on his fitness to practice law, nor should he, whether in
but grossly immoral. That is, it must be so corrupt as to constitute a
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
criminal act or so unprincipled as to be reprehensible to a high degree or
committed under such scandalous or revolting circumstances as to
shock the common sense of decency.[13]
In his affidavit dated September 10, 1997, duly acknowledged before a
notary public, he declared explicitly:
1. That I had a relationship with one Carmelita Zaguirre, my officemate;
2. That as a result of that relationship, she is presently pregnant with my
child;
3. That I hereby voluntarily recognize the child now under (sic) her womb
to be my own;
4. That I am willing to support the said child henceforth, including his/her
personal and medical needs, education, housing, food, clothing and
other necessities for living, which I will give through his/her mother,
Carmelita Zaguirre, until he/she becomes of legal age and capable to
live on his/her own;
5. That I undertake to sign the birth certificate as an additional proof that
he/she is my child; however, my failure to sign does not negate the
recognition and acknowledgement already done herein;
6. That I am executing this affidavit without compulsion on my part and
being a lawyer, I have full knowledge of the consequence of such
acknowledgment and recognition.[14]
More incriminating is his handwritten letter dated March 12, 1998 which
states in part:
Ayoko ng umabot tayo sa kung saan-saan pa. All your officemates, e.g.,
Ate Ging, Glo, Guy and others (say) that I am the look like(sic) of your
daughter.
Heres my bargain. I will help you in supporting your daughter, but I
cannot promise fix amount for monthly support of your daughter.
However it shall not be less than P500 but not more than P1,000.[15]
In the recent case of Luguid vs. Judge Camano, Jr., the Court in
castigating a judge stated that:
...even as an ordinary lawyer, respondent has to conform to the strict
standard of conduct demanded of members of the profession. Certainly,
fathering children by a woman other than his lawful wife fails to meet
these standards.[16]
Siring a child with a woman other than his wife is a conduct way below
the standards of morality required of every lawyer.[17]
Moreover, the attempt of respondent to renege on his notarized
statement recognizing and undertaking to support his child by Carmelita
demonstrates a certain unscrupulousness on his part which is highly
censurable, unbecoming a member of a noble profession, tantamount to
self-stultification.[18]
This Court has repeatedly held:
as officers of the court, lawyers must not only in fact be of good moral
character but must also be seen to be of good moral character and
leading lives in accordance with the highest moral standards of the
community. More specifically, a member of the Bar and officer of the
court is not only required to refrain from adulterous relationships or the
keeping of mistresses but must also so behave himself as to avoid
scandalizing the public by creating the belief that he is flouting those
moral standards.[19]
While respondent does not deny having an extra-marital affair with
complainant he seeks understanding from the Court, pointing out that
men by nature are polygamous,[20] and that what happened between
them was nothing but mutual lust and desire.[21] The Court is not
convinced. In fact, it is appalled at the reprehensible, amoral attitude of
the respondent.
Respondent claims that he did not use any deception to win her affection.
Granting arguendo that complainant entered into a relationship with him
knowing full well his marital status, still it does not absolve him of gross
immorality for what is in question in a case like this is respondents fitness
to be a member of the legal profession. It is not dependent whether or
not the other party knowingly engaged in an immoral relationship with
him.
We agree with the IBP that the defense of in pari delicto is not feasible.
The Court held in Mortel vs. Aspiras:
PINEDAPCGRNMAN
In a disbarment proceeding, it is immaterial that the complainant is in pari
delicto because this is not a proceeding to grant relief to the complainant,
but one to purge the law profession of unworthy members, to protect the
public and the courts.[22]
The illicit relationship with Carmelita took place while respondent was
preparing to take the bar examinations. Thus, it cannot be said that it is
unknown to him that an applicant for admission to membership in the bar
must show that he is possessed of good moral character, a requirement
which is not dispensed with upon admission to membership of the
bar.[23] This qualification is not only a condition precedent to admission
to the legal profession, but its continued possession is essential to
maintain ones good standing in the profession;[24] it is a continuing
requirement to the practice of law[25] and therefore admission to the bar
does not preclude a subsequent judicial inquiry, upon proper complaint,
into any question concerning his mental or moral fitness before he
became a lawyer. This is because his admission to practice merely
creates a rebuttable presumption that he has all the qualifications to
become a lawyer.
The Court held:
The practice of law is not a right but a privilege bestowed by the State on
those who show that they possess, and continue to possess, the
qualifications required by law for the conferment of such privilege. We
must stress that membership in the bar is a privilege burdened with
conditions. A lawyer has the privilege to practice law only during good
behavior. He can be deprived of his license for misconduct ascertained
and declared by judgment of the court after giving him the opportunity to
be heard.[26]
and in Dumadag vs. Lumaya:
The practice of law is a privilege burdened with conditions. Adherence to
the rigid standards of mental fitness, maintenance of the highest degree
of morality and faithful compliance with the rules of the legal profession
are the conditions required for remaining a member of good standing of
the bar and for enjoying the privilege to practice law.[27]
Respondent repeatedly engaged in sexual congress with a woman not
his wife and now refuses to recognize and support a child whom he
previously recognized and promised to support. Clearly therefore,
respondent violated the standards of morality required of the legal
profession and should be disciplined accordingly.
As consistently held by this Court, disbarment shall not be meted out if a
lesser punishment could be given.[28] Records show that from the time
he took his oath in 1997, he has severed his ties with complainant and
now lives with his wife and children in Mindoro. As of now, the Court does
not perceive this fact as an indication of respondents effort to mend his
ways or that he recognizes the impact of his offense on the noble
profession of law. Nevertheless, the Court deems it more appropriate
under the circumstances that indefinite suspension should be meted out
than disbarment. The suspension shall last until such time that
respondent is able to show, to the full satisfaction of the Court, that he
had instilled in himself a firm conviction of maintaining moral integrity and
uprightness required of every member of the profession.
The rule is settled that a lawyer may be suspended or disbarred for any
misconduct, even if it pertains to his private activities, as long as it shows
him to be wanting in moral character, honesty, probity or good
demeanor.[29]
ACCORDINGLY, in view of the foregoing, the Court finds respondent
GUILTY of Gross Immoral Conduct and ordered to suffer INDEFINITE
SUSPENSION from the practice of law.
Let a copy of this Decision be attached to Atty. Castillos personal record
in the Office of the Bar Confidant and a copy thereof be furnished the
IBP and all courts throughout the country.
SO ORDERED.
CANON 8 A lawyer shall conduct himself with courtesy, fairness
and candor towards his professional colleagues, and shall avoid
Page 135
harassing tactics against opposing counsel.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
CONRADO QUE, A.C. No. 7054
Complainant,
PUNO, C J.,
CARPIO,
CORONA,
CARPIO MORALES,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
- versus - LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD, and
VILLARAMA, JR., JJ.
ATTY. ANASTACIO REVILLA, Promulgated:
JR.
Respondent. December 4, 2009
x ----------------------------------------------------------------------------------------
--------------- x
DECISION
PER CURIAM:
In a complaint for disbarment,[1] Conrado Que (complainant) accused
Atty. Anastacio Revilla, Jr. (respondent) before the Integrated Bar of the
Philippines Committee on BarDiscipline (IBP Committee on Bar
Discipline or CBD) of committing the following violations of the provisions
of the Code of Professional Responsibility and Rule 138 of the Rules of
Court:
(1) The respondents abuse of court remedies and processes by filing a
petition for certiorari before the Court of Appeals (CA), two petitions for
annulment of title before the Regional Trial Court (RTC), a petition for
annulment of judgment before the RTC and lastly, a petition for
declaratory relief before the RTC (collectively, subject cases) to assail
and overturn the final judgments of the Metropolitan Trial Court[2] (MeTC)
and RTC[3] in the unlawful detainer case rendered against the
respondents clients. The respondent in this regard, repeatedly raised the
issue of lack of jurisdiction by the MeTC and RTC knowing fully-well that
these courts have jurisdiction over the unlawful detainer case. The
respondent also repeatedly attacked the complainants and his siblings
titles over the property subject of the unlawful detainer case;
(2) The respondents commission of forum-shopping by filing the subject
cases in order to impede, obstruct, and frustrate the efficient
administration of justice for his own personal gain and to defeat the right
of the complainant and his siblings to execute the MeTC and RTC
judgments in the unlawful detainer case;
(3) The respondents lack of candor and respect towards his adversary
and the courts by resorting to falsehood and deception to misguide,
obstruct and impede the due administration of justice. The respondent
asserted falsehood in the motion for reconsideration of the dismissal of
the petition for annulment of judgment by fabricating an imaginary order
issued by the presiding judge in open court which allegedly denied the
motion to dismiss filed by the respondents in the said case. The
PINEDAPCGRNMAN
complainant alleged that the respondent did this to cover up his lack of
preparation; the respondent also deceived his clients (who were all
squatters) in supporting the above falsehood.[4]
(4) The respondents willful and revolting falsehood that unjustly
maligned and defamed the good name and reputation of the late Atty.
Alfredo Catolico (Atty. Catolico), the previous counsel of the respondents
clients.
(5) The respondents deliberate, fraudulent and unauthorized
appearances in court in the petition for annulment of judgment for 15
litigants, three of whom are already deceased;
(6) The respondents willful and fraudulent appearance in the second
petition for annulment of title as counsel for the Republic of
the Philippines without being authorized to do so.
Additionally, the complaint accused the respondent of representing fifty-
two (52) litigants in Civil Case No. Q-03-48762 when no such authority
was ever given to him.
The CBD required the respondent to answer the complaint.
In his Answer,[5] the respondent declared that he is a member of the
Kalayaan Development Cooperative (KDC) that handles pro bono cases
for the underprivileged, the less fortunate, the homeless and those in the
marginalized sector in Metro Manila. He agreed to take over the cases
formerly handled by other KDC members. One of these cases was the
unlawful detainer case handled by the late Atty. Catolico where the
complainant and his siblings were the plaintiffs and the respondents
present clients were the defendants.
With respect to paragraph 1 of the disbarment complaint, the respondent
professed his sincerity, honesty and good faith in filing the petitions
complained of; he filed these petitions to protect the interests of his
clients in their property. The respondent asserted that these petitions
were all based on valid grounds the lack of jurisdiction of the MeTC
and the RTC over the underlying unlawful detainer case, the extrinsic
fraud committed by the late Atty. Catolico, and the extrinsic fraud
committed by the complainant and his family against his clients; he
discovered that the allegedly detained property did not really belong to
the complainant and his family but is a forest land. The respondent also
asserted that his resort to a petition for annulment of judgment and a
petition for declaratory relief to contest the final judgments of the MeTC
and RTC were all parts of his legal strategy to protect the interests of his
clients.
On the allegations of falsehood in the motion for reconsideration of the
order of dismissal of the petition for annulment of judgment (covered by
paragraph 3 of the disbarment complaint), the respondent maintained
that his allegations were based on his observations and the notes he had
taken during the proceedings on what the presiding judge dictated in
open court.
The respondent denied that he had made any unauthorized appearance
in court (with respect to paragraphs 5 and 6 of the disbarment complaint).
He claimed that the 52 litigants in Civil Case No. Q-03-48762 were
impleaded by inadvertence; he immediately rectified his error by
dropping them from the case. On the petition for annulment of judgment,
the respondent claimed that a majority (31 out of 49) of the litigants who
signed the certification constituted sufficient compliance with the rules on
forum-shopping. The respondent likewise denied having represented the
Republic of the Philippines in the second petition for annulment of title.
Page 136
The respondent pointed out that there was no allegation whatsoever that
he was the sole representative of both the complainants (his clients) and
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
the Republic of the Philippines. The respondent pointed out that the
petition embodied a request to the Office of the Solicitor General to
represent his clients in the case.[6]
The respondent submitted that he did not commit any illegal, unlawful,
unjust, wrongful or immoral acts towards the complainant and his
siblings. He stressed that he acted in good faith in his dealings with them
and his conduct was consistent with his sworn duty as a lawyer to uphold
justice and the law and to defend the interests of his clients. The
respondent additionally claimed that the disbarment case was filed
because the complainants counsel, Atty. Cesar P. Uy (Atty. Uy), had an
axe to grind against him.
Lastly, the respondent posited in his pleadings[7] before the IBP that the
present complaint violated the rule on forum shopping considering that
the subject cases were also the ones on which a complaint was filed
against him in CBD Case No. 03-1099 filed by Atty. Uy before the IBP
Committee on Bar Discipline. The respondent also posited that the
present complaint was filed to harass, ridicule and defame his good
name and reputation and, indirectly, to harass his clients who are
marginalized members of the KDC.
The Findings of the Investigating Commissioner
Except for the last charge of unauthorized appearance on behalf of 52
litigants in Civil Case No. Q-03-48762, Investigating Commissioner
Renato G. Cunanan[8](Investigating Commissioner Cunanan) found all
the charges against the respondent meritorious. In his Report and
Recommendation, he stated:
While an attorney admittedly has the solemn duty to defend and protect
the cause and rights of his client with all the fervor and energy within his
command, yet, it is equally true that it is the primary duty of the lawyer to
defend the dignity, authority and majesty of the law and the courts which
enforce it. A lawyer is not at liberty to maintain and defend the cause of
his clients thru means, inconsistent with truth and honor. He may not and
must not encourage multiplicity of suits or brazenly engage in forum-
shopping.[9]
On the first charge on abuse of court processes, Investigating
Commissioner Cunanan noted the unnecessary use by the respondent
of legal remedies to forestall the execution of the final decisions of the
MTC and the RTC in the unlawful detainer case against his clients.[10]
On the second charge, the Investigating Commissioner ruled that the act
of the respondent in filing two petitions for annulment of title, a petition
for annulment of judgment and later on a petition for declaratory
relief were all done to prevent the execution of the final judgment in the
unlawful detainer case and constituted prohibited forum-shopping.[11]
On the third and fourth charges, Investigating Commissioner Cunanan
found ample evidence showing that the respondent was dishonest in
dealing with the court as shown in his petition for annulment of judgment;
he resorted to falsities and attributed acts to Atty. Catolico and to the
presiding judge, all of which were untrue. [12]
On the fifth and sixth charges, the Investigating Commissioner
disregarded the respondents explanation that he had no intention to
represent without authority 15 of the litigants (three of whom were
already deceased) in the petition for annulment of judgment (Civil Case
No. Q-01-45556). To the Investigating Commissioner, the respondent
merely glossed over the representation issue by claiming that the
authority given by a majority of the litigants complied with the certification
of non-forum shopping requirement. The Investigating Commissioner
likewise brushed aside the respondents argument regarding his
misrepresentation in the second complaint for annulment of title since he
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knew very well that only the Solicitor General can institute an action for
reversion on behalf of the Republic of the Philippines. Despite this
knowledge, the respondent solely signed the amended complaint for and
on behalf of his clients and of the Republic.
The Board of Governors of the IBP Committee on Bar Discipline, through
its Resolution No. XVII-2005-164 on CBD Case No. 03-1100, adopted
and approved the Report and Recommendation of Investigating
Commissioner Cunanan and recommended that the respondent be
suspended from the practice of law for two (2) years.[13] On
reconsideration, the Board of Governors reduced the respondents
suspension from the practice of law to one (1) year.[14]
The Issue
The case poses to us the core issues of whether the respondent can be
held liable for the imputed unethical infractions and professional
misconduct, and the penalty these transgressions should carry.
The Courts Ruling
Except for the penalty, we agree with the Report and
Recommendation of Investigating Commissioner Cunanan and the
Board of Governors of the IBP Committee on Bar Discipline.
We take judicial notice that this disbarment complaint is not the only one
so far filed involving the respondent; another complaint invoking similar
grounds has previously been filed. In Plus Builders, Inc. and Edgardo C.
Garcia v. Atty. Anastacio E. Revilla, Jr.,[15] we suspended the respondent
from the practice of law for his willful and intentional falsehood before the
court; for misuse of court procedures and processes to delay the
execution of a judgment; and for collaborating with non-lawyers in the
illegal practice of law. We initially imposed a suspension of two (2) years,
but in an act of leniency subsequently reduced the suspension to six (6)
months.[16]
Abuse of court procedures and processes
The following undisputed facts fully support the conclusion that the
respondent is guilty of serious misconduct for abusing court procedures
and processes to shield his clients from the execution of the final
judgments of the MeTC and RTC in the unlawful detainer case against
these clients:
First, the respondent filed a petition for certiorari (docketed as CA-G.R.
SP No. 53892) with prayer for the issuance of preliminary injunction and
temporary restraining order to question the final judgments of the MeTC
and RTC for lack of jurisdiction. In dismissing the respondents petition,
the CA held:
Even for the sake of argument considering that the petition case be the
proper remedy, still it must be rejected for failure of petitioners to
satisfactorily demonstrate lack of jurisdiction on the part of the
Metropolitan Trial Court of Quezon City over the ejectment case.[17]
Second, notwithstanding the CAs dismissal of the petition for certiorari,
the respondent again questioned the MeTCs and the RTCs lack of
jurisdiction over the unlawful detainer case in a petition for annulment of
judgment (docketed as Civil Case No. Q-01-45556) before the RTC with
an ancillary prayer for the grant of a temporary restraining order and
preliminary injunction. The RTC dismissed this petition on the basis of
the motion to dismiss filed.[18]
Third, the respondent successively filed two petitions (docketed as Civil
Case No. Q-99-38780 and Civil Case No. Q-02-46885) for annulment of
the complainants title to the property involved in the unlawful detainer
Page 137
case. The records show that these petitions were both dismissed for lack
of legal personality on the part of the plaintiffs to file the petition.[19]
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Fourth, after the dismissals of the petition for annulment of judgment and
the petitions for annulment of title, the respondent this time filed a petition
for declaratory relief with prayer for a writ of preliminary injunction to
enjoin the complainant and his siblings from exercising their rights over
the same property subject of the unlawful detainer case. The respondent
based the petition on the alleged nullity of the complainants title because
the property is a part of forest land.
Fifth, the persistent applications by the respondent for injunctive relief in
the four petitions he had filed in several courts the petition for certiorari,
the petition for annulment of judgment, the second petition for annulment
of complainants title and the petition for declaratory relief reveal the
respondents persistence in preventing and avoiding the execution of the
final decisions of the MeTC and RTC against his clients in the unlawful
detainer case.
Under the circumstances, the respondents repeated attempts go beyond
the legitimate means allowed by professional ethical rules in defending
the interests of his client.These are already uncalled for measures to
avoid the enforcement of final judgments of the MeTC and RTC. In these
attempts, the respondent violated Rule 10.03, Canon 10 of the Code of
Professional Responsibility which makes it obligatory for a lawyer to
observe the rules of procedure and. . . not [to] misuse them to defeat the
ends of justice. By his actions, the respondent used procedural rules to
thwart and obstruct the speedy and efficient administration of justice,
resulting in prejudice to the winning parties in that case.[20]
Filing of multiple actions and forum shopping
The respondent likewise violated Rule 12.02 and Rule 12.04, Canon 12
of the Code of Professional Responsibility,[21] as well as the rule against
forum shopping, both of which are directed against the filing of multiple
actions to attain the same objective. Both violations constitute abuse of
court processes; they tend to degrade the administration of justice;
wreak havoc on orderly judicial procedure;[22] and add to the congestion
of the heavily burdened dockets of the courts.[23]
While the filing of a petition for certiorari to question the lower courts
jurisdiction may be a procedurally legitimate (but substantively
erroneous) move, the respondents subsequent petitions involving the
same property and the same parties not only demonstrate his attempts
to secure favorable ruling using different fora, but his obvious objective
as well of preventing the execution of the MeTC and RTC decisions in
the unlawful detainer case against his clients. This intent is most obvious
with respect to the petitions for annulment of judgment and declaratory
relief, both geared towards preventing the execution of the unlawful
detainer decision, long after this decision had become final.
Willful, intentional and deliberate
falsehood before the courts
The records also reveal that the respondent committed willful, intentional
and deliberate falsehood in the pleadings he filed with the lower courts.
First, in the petition for annulment of judgment filed before the RTC,
Branch 101, Quezon City, the respondent cited extrinsic fraud as one of
the grounds for the annulment sought. The extrinsic fraud was alleged in
the last paragraph of the petition, as follows:
In here, counsel for the petitioners (defendants therein), deliberately
neglected to file the proper remedy then available after receipt of the
denial of their Motion for Reconsideration thuscorruptly sold out the
interest of the petitioners (defendants therein) by keeping them away
to the Court and in complete ignorance of the suit by a false pretense of
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compromise and fraudulent acts of alleging representing them when in
truth and in fact, have connived with the attorney of the prevailing
party at his defeat to the prejudice of the petitioner (defendants
therein) [24]
Yet, in paragraph 35 of the same petition, the respondent alleged that no
second motion for reconsideration or for new trial, or no other petition
with the CA had been filed, as he believed that the decisions rendered
both by the MeTC and the RTC are null and void.[25] These conflicting
claims, no doubt, involve a fabrication made for the purpose of
supporting the petition for annulment. Worse, it involved a direct and
unsubstantiated attack on the reputation of a law office colleague,
another violation we shall separately discuss below.
Second, the respondent employed another obvious subterfuge when he
filed his second petition for annulment of title, which was an unsuccessful
attempt to circumvent the rule that only the Solicitor General may
commence reversion proceedings of public lands[26] on behalf of the
Republic of the Philippines. This second petition, filed by a private party
and not by the Republic, showed that: (a) the respondent and his clients
requested that they be represented by the Solicitor General in the
proceedings; (b) the Republic of the Philippines was simply impleaded in
the amended petition without its consent as a plaintiff; and (c) the
respondent signed the amended petition where he alone stood as
counsel for the plaintiffs. In this underhanded manner, the respondent
sought to compel the Republic to litigate and waste its resources on an
unauthorized and unwanted suit.
Third, the respondent also committed falsehood in his motion for
reconsideration of the order dismissing his petition for annulment of
judgment where he misrepresented to the court and his clients what
actually transpired in the hearing of June 28, 2002 in this wise:
Likewise, the proceedings on said date of hearing (June 28, 2002) show,
that after both counsel have argued on the aforesaid pending
incident, the Honorable Presiding Judge, in open court, and in the
presence and within the hearing distance of all the plaintiffs and their
counsel as well as the counsel of the defendants resolved: TO DENY
THE MOTION TO DISMISS FILED AND DIRECTED DEFENDANTS
COUNSEL TO FILE AN ANSWER TO THE COMPLAINT WITHIN THE
REMAINING PERIOD.[27][Underscoring and emphasis theirs]
The records, however, disclose that the scheduled hearing for June 28,
2002 was actually for the respondents application for temporary
restraining order and was not a hearing on the adverse partys motion to
dismiss.[28] The records also show that RTC-Branch 101 held in
abeyance the respondents application for injunctive relief pending the
resolution of the motion to dismiss filed by the adverse party.[29] As stated
in the order of the Presiding Judge of RTC-Branch 101:
Browsing over the records of this case specifically the transcripts of
stenographic notes as transcribed by the Stenographer, the same will
indicate that the allegations in the Motion for Reconsideration are not
true.
how can this Court make a ruling on the matter even without stating the
factual and legal bases as required/mandated by the Rules. Moreover,
there are no indications or iota of irregularity in the preparation by
Stenographer of the transcripts, and by the Court interpreter of the
Minutes of the open Court session.[Underscoring theirs]
The records further disclose that despite knowledge of the falsity of his
allegations, the respondent took advantage of his position and the trust
reposed in him by his clients (who are all squatters) to convince them to
support, through their affidavits, his false claims on what allegedly
transpired in the June 28, 2002 hearing. [30]
Page 138
For these acts, we find the respondent liable under Rule 10.01 of Canon
10 the Code of Professional Responsibility for violating the lawyers duty
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
to observe candor and fairness in his dealings with the court. This
provision states:
CANON 10 A LAWYER OWES CANDOR, FAIRNESS AND GOOD
FAITH TO THE COURT
Rule 10.01 A lawyer shall not do any falsehood, nor consent to the doing
of any in Court, nor shall he mislead or allow the Court to be mislead by
an artifice.
Likewise, the respondent violated his duty as an attorney and his oath
as a lawyer never to mislead the judge or any judicial officer by an artifice
or false statement of fact or law.[31] The respondent failed to remember
that his duty as an officer of the court makes him an indispensable
participant in the administration of justice,[32] and that he is expected to
act candidly, fairly and truthfully in his work.[33] His duty as a lawyer
obligates him not to conceal the truth from the court, or to mislead the
court in any manner, no matter how demanding his duties to his clients
may be.[34] In case of conflict, his duties to his client yield to his duty to
deal candidly with the court.[35]
In defending his clients interest, the respondent also failed to observe
Rule 19.01, Canon 19 of the Code of Professional Responsibility, which
reads:
CANON 19 A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL
WITHIN THE BOUNDS OF LAW
Rule 19.01 A lawyer shall employ only fair and honest means to attain
the lawful objectives of his clients x x x
This Canon obligates a lawyer, in defending his client, to employ only
such means as are consistent with truth and honor.[36] He should not
prosecute patently frivolous and meritless appeals or institute clearly
groundless actions.[37] The recital of what the respondent did to prevent
the execution of the judgment against his clients shows that he actually
committed what the above rule expressly prohibits.
Maligning the name of his fellow lawyers
To support the charge of extrinsic fraud in his petition for annulment of
judgment, the respondent attacked (as quoted above) the name and
reputation of the late Atty. Catolico and accused him of deliberate
neglect, corrupt motives and connivance with the counsel for the adverse
party.
We find it significant that the respondent failed to demonstrate how he
came upon his accusation against Atty. Catolico. The respondent, by his
own admission, only participated in the cases previously assigned to
Atty. Catolico after the latter died. At the same time, the respondents
petition for annulment of judgment also represented that no second
motion for reconsideration or appeal was filed to contest the MeTC and
RTC decisions in the unlawful detainer case for the reason that the
respondent believed the said decisions were null and void ab initio.
Under these circumstances, we believe that the respondent has been
less than fair in his professional relationship with Atty. Catolico and is
thus liable for violating Canon 8 of the Code of Professional
Responsibility, which obligates a lawyer to conduct himself with
courtesy, fairness, and candor toward his professional colleagues. He
was unfair because he imputed wrongdoing to Atty. Catolico without
showing any factual basis therefor; he effectively maligned Atty. Catolico,
who is now dead and unable to defend himself.
Unauthorized appearances
PINEDAPCGRNMAN
We support Investigating Commissioner Cunanans finding that the
respondent twice represented parties without proper authorization: first,
in the petition for annulment of judgment; and second, in the second
petition for annulment of title.[38]
In the first instance, the records show that the respondent filed the
petition for annulment of judgment on behalf of 49 individuals, 31 of
whom gave their consent while the other 15 individuals did not. We
cannot agree with the respondents off-hand explanation that he truly
believed that a majority of the litigants who signed the certification of non-
forum shopping in the petition already gave him the necessary authority
to sign for the others. We find it highly improbable that this kind of lapse
could have been committed by a seasoned lawyer like the respondent,
who has been engaged in the practice of law for more than 30 years and
who received rigid and strict training as he so proudly declares, from the
University of the Philippines College of Law and in the two law firms with
which he was previously associated.[39] As Investigating Commissioner
Cunanan found, the respondents explanation of compliance with the rule
on the certification of non-forum shopping glossed over the real charge
of appearing in court without the proper authorization of the parties he
allegedly represented.
In the second instance, which occurred in the second complaint for
annulment of title, the respondent knew that only the Solicitor General
can legally represent the Republic of the Philippines in actions for
reversion of land. Nevertheless, he filed an amended petition where he
impleaded the Republic of the Philippines as plaintiff without its authority
and consent, as a surreptitious way of forcing the Republic to litigate.
Notably, he signed the amended complaint on behalf of all the plaintiffs
his clients and the Republic.
In both instances, the respondent violated Sections 21 and 27, Rule 138
of the Rules of Court when he undertook the unauthorized appearances.
The settled rule is that a lawyer may not represent a litigant without
authority from the latter or from the latters representative or, in the
absence thereof, without leave of court.[40] The willful unauthorized
appearance by a lawyer for a party in a given case constitutes
contumacious conduct and also warrants disciplinary measures against
the erring lawyer for professional misconduct.[41]
The Respondents Defenses
We find no merit in the respondents defenses.
Good faith connotes an honest intention to abstain from taking
unconscientious advantage of another. Accordingly, in University of the
East v. Jader we said that "[g]ood faith connotes an honest intention to
abstain from taking undue advantage of another, even though the forms
and technicalities of law, together with the absence of all information or
belief of facts, would render the transaction unconscientious."[42] Bad
faith, on the other hand, is a state of mind affirmatively operating with
furtive design or with some motive of self-interest, ill will or for an ulterior
purpose.[43] As both concepts are states of mind, they may be deduced
from the attendant circumstances and, more particularly, from the acts
and statements of the person whose state of mind is the subject of
inquiry.
In this case, we find that the respondent acted in bad faith in defending
the interests of his clients. We draw this conclusion from the
misrepresentations and the dubious recourses he made, all obviously
geared towards forestalling the execution of the final judgments of the
MeTC and RTC. That he took advantage of his legal knowledge and
experience and misread the Rules immeasurably strengthen the
presence of bad faith.
Page 139
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
We find neither sincerity nor honest belief on the part of the respondent
in pleading the soundness and merit of the cases that he filed in court to
prevent the execution of the MeTC and RTC decisions, considering his
own conduct of presenting conflicting theories in his petitions. The
succession of cases he filed shows a desperation that negates the
sincere and honest belief he claims; these are simply scattershot means
to achieve his objective of avoiding the execution of the unlawful detainer
judgment against his clients.
On the respondents allegations regarding his discretion to determine
legal strategy, it is not amiss to note that this was the same defense he
raised in the first disbarment case.[44] As we explained in Plus
Builders, the exercise of a lawyers discretion in acting for his client can
never be at the expense of truth and justice. In the words of this cited
case:
While a lawyer owes absolute fidelity to the cause of his client, full
devotion to his genuine interest, and warm zeal in the maintenance and
defense of his rights, as well as the exertion of his utmost learning and
ability, he must do so only within the bounds of the law. He must give a
candid and honest opinion on the merits and probable results of his
clients case with the end in view of promoting respect for the law and
legal processes, and counsel or maintain such actions or proceedings
only as appear to him to be just, and such defenses only as he believes
to be honestly debatable under the law. He must always remind himself
of the oath he took upon admission to the Bar that he will not wittingly or
willingly promote or sue any groundless, false or unlawful suit nor give
aid nor consent to the same; and that he will conduct [himself] as a
lawyer according to the best of [his] knowledge and discretion with all
good fidelity as well to the courts as to [his] clients. Needless to state,
the lawyers fidelity to his client must not be pursued at the expense of
truth and the administration of justice, and it must be done within the
bounds of reason and common sense. A lawyers responsibility to protect
and advance the interests of his client does not warrant a course of
action propelled by ill motives and malicious intentions against the other
party.[45]
We cannot give credence to the respondents claim that the disbarment
case was filed because the counsel of the complainant, Atty. Uy, had an
axe to grind against him. We reject this argument, considering that it was
not Atty. Uy who filed the present disbarment case against him; Atty. Uy
is only the counsel in this case. In fact, Atty. Uy has filed his own
separate disbarment case against the respondent.
The sui generis nature of a disbarment case renders the underlying
motives of the complainants unimportant and with very little relevance.
The purpose of a disbarment proceeding is mainly to determine the
fitness of a lawyer to continue acting as an officer of the court and a
participant in the dispensation of justice an issue where the complainants
personal motives have little relevance. For this reason, disbarment
proceedings may be initiated by the Court motu proprio upon information
of an alleged wrongdoing. As we also explained in the case In re:
Almacen:
. . .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 one of its officers. Not being intended to inflict
punishment, it is in no sense a criminal prosecution.
xxx
It may be initiated by the Court motu proprio. Public interest is its primary
objective, and the real question for determination is whether or not the
attorney is still a fit person to be allowed the privileges as such. Hence,
in the exercise of its disciplinary powers, the Court merely calls upon a
member of the Bar to account for his actuations as an officer of-the Court
with the end in view of preserving the purity of the legal profession and
PINEDAPCGRNMAN
the proper and honest administration of justice by purging the profession
of members who by their misconduct have proved themselves no longer
worthy to be entrusted with the duties and responsibilities pertaining to
the office of an attorney. In such posture, there can thus be no occasion
to speak of a complainant or a prosecutor.[46]
Hence, we give little or no weight to the alleged personal motivation that
drove the complainant Que and his counsel to file the present disbarment
case.
Conclusion
Based on the foregoing, we conclude that the respondent
committed various acts of professional misconduct and thereby failed to
live up to the exacting ethical standards imposed on members of the Bar.
We cannot agree, however, that only a penalty of one-year suspension
from the practice of law should be imposed. Neither should we limit
ourselves to the originally recommended penalty of suspension for two
(2) years.
Given the respondents multiple violations, his past record as previously
discussed, and the nature of these violations which shows the readiness
to disregard court rules and to gloss over concerns for the orderly
administration of justice, we believe and so hold that the appropriate
action of this Court is to disbar the respondent to keep him away from
the law profession and from any significant role in the administration of
justice which he has disgraced. He is a continuing risk, too, to the public
that the legal profession serves. Not even his ardor and overzealousness
in defending the interests of his client can save him. Such traits at the
expense of everything else, particularly the integrity of the profession and
the orderly administration of justice, this Court cannot accept nor
tolerate.
Additionally, disbarment is merited because this is not the respondents
first ethical infraction of the same nature. We penalized him in Plus
Builders, Inc. and Edgardo Garcia versus Atty. Anastacio E.
Revilla for his willful and intentional falsehood before the court; for
misuse of court procedures and processes to delay the execution of a
judgment; and for collaborating with non-lawyers in the illegal practice of
law. We showed leniency then by reducing his penalty to suspension for
six (6) months. We cannot similarly treat the respondent this time; it is
clear that he did not learn any lesson from his past experience and since
then has exhibited traits of incorrigibility. It is time to put afinis to the
respondents professional legal career for the sake of the public, the
profession and the interest of justice.
WHEREFORE, premises considered, we hereby AFFIRM Resolution
No. XVII-2005-164 dated December 17, 2005 and Resolution No. XVII-
2008-657 dated December 11, 2008 of the Board of Governors of the
IBP Committee on Bar Discipline insofar as respondent Atty. Anastacio
Revilla, Jr. is found liable for professional misconduct for violations of the
Lawyers Oath; Canon 8; Rules 10.01 and 10.03, Canon 10; Rules 12.02
and 12.04, Canon 12; Rule 19.01, Canon 19 of the Code of Professional
Responsibility; and Sections 20(d), 21 and 27 of Rule 138 of the Rules
of Court. However, we modify the penalty the IBP imposed, and hold that
the respondent should be DISBARRED from the practice of law.
SO ORDERED.
[A.C. No. 4807. March 22, 2000]
MANUEL N. CAMACHO, complainant, vs. ATTYS. LUIS MEINRADO
C. PANGULAYAN, REGINA D. BALMORES, CATHERINE V. LAUREL
and HUBERT JOAQUIN P. BUSTOS of PANGULAYAN AND
Page 140
ASSOCIATES LAW OFFICES, respondents.
D E C I S IO N
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
VITUG, J.: JVITUG
Respondent lawyers stand indicted for a violation of the Code of
Professional Ethics, specifically Canon 9 thereof, viz:
"A lawyer should not in any way communicate upon the subject of
controversy with a party represented by counsel, much less should he
undertake to negotiate or compromise the matter with him, but should
only deal with his counsel. It is incumbent upon the lawyer most
particularly to avoid everything that may tend to mislead a party not
represented by counsel and he should not undertake to advise him as to
law." barth
Atty. Manuel N. Camacho filed a complaint against the lawyers
comprising the Pangulayan and Associates Law Offices, namely,
Attorneys Luis Meinrado C. Pangulayan, Regina D. Balmores, Catherine
V. Laurel, and Herbert Joaquin P. Bustos. Complainant, the hired
counsel of some expelled students from the AMA Computer College
("AMACC"), in an action for the Issuance of a Writ of Preliminary
Mandatory Injunction and for Damages, docketed Civil Case No. Q-97-
30549 of the Regional Trial Court, Branch 78, of Quezon City, charged
that respondents, then counsel for the defendants, procured and effected
on separate occasions, without his knowledge, compromise agreements
("Re-Admission Agreements") with four of his clients in the
aforementioned civil case which, in effect, required them to waive all
kinds of claims they might have had against AMACC, the principal
defendant, and to terminate all civil, criminal and administrative
proceedings filed against it. Complainant averred that such an act of
respondents was unbecoming of any member of the legal profession
warranting either disbarment or suspension from the practice of law.
In his comment, Attorney Pangulayan acknowledged that not one of his
co-respondents had taken part in the negotiation, discussion,
formulation, or execution of the various Re-Admission Agreements
complained of and were, in fact, no longer connected at the time with the
Pangulayan and Associates Law Offices. The Re-Admission
Agreements, he claimed, had nothing to do with the dismissal of Civil
Case Q-97-30549 and were executed for the sole purpose of effecting
the settlement of an administrative case involving nine students of
AMACC who were expelled therefrom upon the recommendation of the
Student Disciplinary Tribunal. The students, namely, Ian Dexter
Marquez, Almira O. Basalo, Neil Jason R. Salcedo, Melissa F.
Domondon, Melyda B. De Leon, Leila D. Joven, Signorelli A. Santiago,
Michael Ejercito, and Cleo B. Villareiz,, were all members of the Editorial
Board of DATALINE, who apparently had caused to be published some
objectionable features or articles in the paper. The 3-member Student
Disciplinary Tribunal was immediately convened, and after a series of
hearings, it found the students guilty of the use of indecent language and
unauthorized use of the student publication funds. The body
recommended the penalty of expulsion against the erring students. Jksm
The denial of the appeal made by the students to Dr. Amable R. Aguiluz
V, AMACC President, gave rise to the commencement of Civil Case No.
Q-97-30549 on 14th March 1997 before the Regional Trial Court, Branch
78, of Quezon City. While the civil case was still pending, letters of
apology and Re-Admission Agreements were separately executed by
and/or in behalf of some of the expelled students, to wit: Letter of
Apology, dated 27 May 1997, of Neil Jason Salcedo, assisted by his
mother, and Re-Admission Agreement of 22 June 1997 with the AMACC
President; letter of apology, dated 31 March 1997, of Mrs. Veronica B.
De Leon for her daughter Melyda B. De Leon and Re-Admission
Agreement of 09 May 1997 with the AMACC President; letter of apology,
dated 22 May 1997, of Leila Joven, assisted by her mother, and Re-
Admission Agreement of 22 May 1997 with the AMACC President; letter
of apology, dated 22 September 1997, of Cleo Villareiz and Re-
Admission Agreement of 10 October 1997 with the AMACC President;
and letter of apology, dated 20 January 1997, of Michael Ejercito,
assisted by his parents, and Re-Admission Agreement of 23 January
1997 with the AMACC President.
Following the execution of the letters of apology and Re-Admission
Agreements, a Manifestation, dated 06 June 1997, was filed with the trial
PINEDAPCGRNMAN
court where the civil case was pending by Attorney Regina D. Balmores
of the Pangulayan and Associates Law Offices for defendant AMACC. A
copy of the manifestation was furnished complainant. In his Resolution,
dated 14 June 1997, Judge Lopez of the Quezon City Regional Trial
Court thereupon dismissed Civil Case No. Q-97-30549.
On 19 June 1999, the Board of Governors of the Integrated Bar of the
Philippines ("IBP") passed Resolution No. XIII-99-163, thus:
"RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, the Report and Recommendation of the Investigating
Commissioner in the above-entitled case, herein made part of this
Resolution/Decision as Annex 'A,' and, finding the recommendation fully
supported by the evidence on record and the applicable laws and rules,
with an amendment Atty. Meinrado Pangulayan is suspended from the
practice of law for SIX (6) MONTHS for being remiss in his duty and
DISMISSAL of the case against the other Respondents for they did not
take part in the negotiation of the case." Chief
It would appear that when the individual letters of apology and Re-
Admission Agreements were formalized, complainant was by then
already the retained counsel for plaintiff students in the civil case.
Respondent Pangulayan had full knowledge of this fact. Although aware
that the students were represented by counsel, respondent attorney
proceeded, nonetheless, to negotiate with them and their parents without
at the very least communicating the matter to their lawyer, herein
complainant, who was counsel of record in Civil Case No. Q-97-30549.
This failure of respondent, whether by design or because of oversight, is
an inexcusable violation of the canons of professional ethics and in utter
disregard of a duty owing to a colleague. Respondent fell short of the
demands required of him as a lawyer and as a member of the Bar.
The allegation that the context of the Re-Admission Agreements centers
only on the administrative aspect of the controversy is belied by the
Manifestation[1] which, among other things, explicitly contained the
following stipulation; viz:
"1.......Among the nine (9) signatories to the complaint, four (4) of whom
assisted by their parents/guardian already executed a Re-Admission
Agreement with AMACC President, AMABLE R. AGUILUZ V
acknowledging guilt for violating the AMA COMPUTER COLLEGE
MANUAL FOR DISCIPLINARY ACTIONS and agreed among others to
terminate all civil, criminal and administrative proceedings which they
may have against the AMACC arising from their previous dismissal. Esm
"x x x......x x x......x x x
"3. Consequently, as soon as possible, an Urgent Motion to Withdraw
from Civil Case No. Q-97-30549 will by filed them."
The Court can only thus concur with the IBP Investigating Commission
and the IBP Board of Governors in their findings; nevertheless, the
recommended six-month suspension would appear to be somewhat too
harsh a penalty given the circumstances and the explanation of
respondent.
WHEREFORE, respondent Atty. Luis Meinrado C. Pangulayan is
ordered SUSPENDED from the practice of law for a period of THREE (3)
MONTHS effective immediately upon his receipt of this decision. The
case against the other respondents is DISMISSED for insufficiency of
evidence.
Let a copy of this decision be entered in the personal record of
respondent as an attorney and as a member of the Bar, and furnished
the Bar Confidant, the Integrated Bar of the Philippines and the Court
Administrator for circulation to all courts in the country.
SO ORDERED.
Rule 8.01 A lawyer shall not, in his professional dealings, use
language which is abusive, offensive or otherwise improper.
Rule 8.02 A lawyer shall not, directly or indirectly, encroach upon
the professional employment of another lawyer; however, it is the
right of any lawyer without fear or favor, to give proper advice and
Page 141
assistance to those seeking relief against unfaithful or neglectful
counsel.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS PINEDAPCGRNMAN
It is the duty of a lawyer to inform the SC or the IBP of such detain" him in Atty. del Rosarios residence in his official capacity as the
malpractice to the end that the malpractitioner be properly clerk of court of the regional trial court. Hence, when Atty. del Rosario
disciplined. was appointed judge, he ceased to be the personal custodian of accused
Not to use in pleadings and in practice the following: Javellana and the succeeding clerk of court must be deemed the
disrespectful, abusive and abrasive language, offensive custodian under the same undertaking.
personalities, unfounded accusations or intemperate words In our mind, the perceived threats to private respondent Javelanas life
tending to obstruct, embarrass or influence the court in no longer exist. Thus, the trial courts order dated August 8, 1989 giving
administering justice. custody over him to the clerk of court must be recalled, and he shall be
detained at the Provincial Jail of Antique at San Jose, Antique.
Want of intention: not an excuse for the disrespectful
Regarding his continued practice of law, as a detention prisoner private
language used. It merely extenuates liability.
respondent Javellana is not allowed to practice his profession as a
necessary consequence of his status as a detention prisoner. The trial
LINSANGAN VS ATTY TOLENTINO (SUPRA)
courts order was clear that private respondent "is not to be allowed liberty
to roam around but is to be held as a detention prisoner." The prohibition
CANON 9 A LAWYER SHALL NOT DIRECTLY OR INDIRECTLY
to practice law referred not only to Criminal Case No. 4262, but to all
ASSIST IN THE UNAUTHORIZED PRACTICE OF LAW.
other cases as well, except in cases where private respondent would
appear in court to defend himself. Spped
[G.R. Nos. 89591-96. January 24, 2000]
As a matter of law, when a person indicted for an offense is arrested, he
PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. BONIFACIO
is deemed placed under the custody of the law. He is placed in actual
SANZ MACEDA, Presiding Judge of Branch 12, Regional Trial Court
restraint of liberty in jail so that he may be bound to answer for the
of Antique, and AVELINO T. JAVELLANA, respondents. ULANDU
commission of the offense.[3] He must be detained in jail during the
RESOLUTION
pendency of the case against him, unless he is authorized by the court
PARDO, J.:
to be released on bail or on recognizance.[4] Let it be stressed that all
On September 8, 1999, we denied the Peoples motion seeking
prisoners whether under preventive detention or serving final sentence
reconsideration of our August 13, 1990 decision in these cases. In said
can not practice their profession nor engage in any business or
resolution, we held that respondent Judge Bonifacio Sanz Maceda
occupation, or hold office, elective or appointive, while in detention. This
committed no grave abuse of discretion in issuing the order of August 8,
is a necessary consequence of arrest and detention. Consequently, all
1989 giving custody over private respondent Avelino T. Javellana to the
the accused in Criminal Cases Nos. 3350-3355 must be confined in the
Clerk of Court of the Regional Trial Court, Branch 12, San Jose, Antique,
Provincial Jail of Antique.
Atty. Deogracias del Rosario, during the pendency of Criminal Cases
Considering that the pendency of Criminal Cases Nos. 3350-3355 has
Nos. 3350-3355. At that time, sufficient reason was shown why private
dragged on for more than ten (10) years, the presiding judge of the
respondent Javellana should not be detained at the Antique Provincial
Regional Trial Court, Branch 12, San Jose, Antique, is ordered to
Jail. The trial courts order specifically provided for private respondents
continue with the trial of said criminal cases with all deliberate dispatch
detention at the residence of Atty. del Rosario. However, private
and to avoid further delay.
respondent was not to be allowed liberty to roam around but was to be
WHEREFORE, the August 8, 1989 order of the trial court is hereby
held as detention prisoner in said residence.
SET ASIDE. All accused in Criminal Cases Nos. 3350-3355, including
This order of the trial court was not strictly complied with because private
Avelino T. Javellana and Arturo F. Pacificador are ordered detained at
respondent was not detained in the residence of Atty. Del Rosario. He
the Provincial Jail of Antique, San Jose, Antique, effective immediately,
went about his normal activities as if he were a free man, including
and shall not be allowed to go out of the jail for any reason or guise,
engaging in the practice of law. Despite our resolution of July 30, 1990
except upon prior written permission of the trial court for a lawful purpose.
prohibiting private respondent to appear as counsel in Criminal Case No.
Let copies of this resolution be given to the Provincial Director, PNP
4262,[1] the latter accepted cases and continued practicing law.
Antique Provincial Police Office, San Jose, Antique and to the Provincial
On April 7, 1997, Senior State Prosecutor Henrick F. Guingoyon filed
Jail Warden, Provincial Jail of Antique, San Jose, Antique.
with the Supreme Court a motion seeking clarification on the following
SO ORDERED.
questions: "(1) Does the resolution of this Honorable Court dated July
30, 1990, prohibiting Atty. Javellana from appearing as counsel refer only
A.M. No. P-220 December 20, 1978
to Criminal Case No. 4262? (2) Is Atty. now (Judge) Deogracias del
JULIO ZETA, complainant,
Rosario still the custodian of Atty. Javellana? and (3) Since it appears
vs.
that Atty. (now Judge) del Rosario never really held and detained Atty.
FELICISIMO MALINAO, respondent.
Javellana as prisoner in his residence, is not Atty. Javellana considered
an escapee or a fugitive of justice for which warrant for his arrest should
BARREDO, J.:
forthwith be issued?"[2] Mis spped
Administrative complaint against Felicisimo Malinao court interpreter of
In a resolution dated June 18, 1997, we "noted" the above motion.
the Court of First Instance of Catbalogan, Samar charging as follows:
After we denied the motion for reconsideration on September 8, 1999,
l ILLEGALLY APPEARING IN COURT. MR. Malinao has been
the trial court resumed hearing Criminal Cases Nos. 3350-3355. Earlier,
appearing in the municipal court of this town for parties like attorney
on August 2, 1999, Rolando Mijares filed with the Regional Trial Court,
when he is not an attorney. Reliable information also says he has been
Branch 12, San Jose, Antique, a motion seeking the revocation of the
appearing in the municipal courts of Daram, Zumarraga, Talalora and
trial courts custody order and the imprisonment of private respondent
even Sta. Rita. He is not authorized to do so we believe. He makes it his
Javellana in the provincial jail.
means of livelihood as he collects fees from his clients. He competes
On November 15, 1999, private respondent Javellana filed with the
with attorneys but does not pay anything. We believe that his doing so
Supreme Court an urgent motion seeking to clarify whether the June 18,
should be stopped for a good government. These facts can be checked
1997 resolution finally terminated or resolved the motion for clarification
with records of those municipal courts.
filed by the State Prosecutor on April 7, 1997.
2 GRAVE MISCONDUCT IN OFFICE. Being employed in the Court
Private respondent Javellana has been arrested based on the filing of
of First Instance he would instigate persons, especially in his barrio to
Page 142

criminal cases against him. By such arrest, he is deemed to be under the

grab land rob or coerce. In fact he has cases in the municipal court in
custody of the law. The trial court gave Atty. Deogracias del Rosario the
this town involving himself and his men. He incite them telling them not
custody of private respondent Javellana with the obligation "to hold and
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
to be afraid as he is a court employee and has influence over the judges.
Those persons being ignorant would believe him and so would commit
crimes. This act of Mr. Malinao is contrary to good order and peace as
he is using his supposed influences to urge persons to commit crimes.
3 CRIME OF FALSIFICATION. Information has it that he is
unfaithfully filing his time record in the CFI. Even he has been out
practicing in the municipal courts sometimes he would fill his time record
as present. He receives salary for those absent days. This can be
checked with time record he has submitted and if he has any application
for leave. He may try to cure it by submitting application for leave but this
should not be allowed as he has already committed crime.
4 VIOLATION OF EXECUTIVE ORDER AND CIVIL SERVICE LAW.-
WE have reliable information it is prohibited for a civil service employee
to engage in private practice any profession or business without
permission from the Department Head. Mr. Malinao we are sure has not
secured that permission because he should not be allowed to practice
as he is not an attorney. If that were so, he violated that Executive Order
and Civil Service Law and we are urgently and earnestly requesting the
Commissioner of Civil Service to investigate him on this. If warranted he
should be given the corresponding penalty as dismissal because we
believe he deserve it. (Page 2, Record.)
After respondent filed the following 3rd indorsement relative to the above
complaint:
Respectfully returned to the Honorable, the Secretary of Justice, Manila,
thru the Honorable District Judge, Court of First Instance, Branch I,
Catbalogan, Samar, and thru the Honorable Judicial Superintendent,
Department of Justice, Manila, the undersigned's reply to the preceding
endorsements, to wit: That the alleged letter-complaint of one Julio Zeta
is not inclosed in the first indorsement, which absence has also been
noticed and noted on the right hand corner of the said first indorsement
by the Clerk of Court, of this Court; that despite this absence, and without
waiving, however, his right to any pertinent provision of law, but for
respect and courtesy to a Superior, he hereby states that he has not
violated any rule or law, much less Sec. 12, Rule XVIII of the Civil Service
Rules; that his participation for defendants' cause was gratuitous as they
could not engage the services of counsel by reason of poverty and the
absence of one in the locality, said assistance has also checked the
miscarriage of justice by the Presiding Municipal Judge, now resigned;
that he is attaching herewith a carbon-original of a pleading submitted by
Atty. Simeon Quiachon the attorney of record for the defendants in Civil
Case No. 24, entitled 'Jose Kiskisan versus Fidel Pacate, et al. for
Forcible Entry, in the Municipal Court of Talalora, Samar, which is a
'Motion To Withdraw Exhibits', as Annex 'A', as part of this reply. (Page
5, Rec.)
the Department of Justice that had jurisdiction over the matter then,
referred the said complaint and answer to District Judge Segundo Zosa,
Court of First Instance, Catbalogan, Western Samar, for investigation,
report and recommendation, and after due hearing, Judge Zosa
submitted his report pertinent parts of which read thus:
Inspite of diligent efforts exerted by the Court to subpoena the
complainant, Julio Zeta, who is said to be a resident of Zumarraga,
Samar the same had failed because the said Julio Zeta appears to be a
fictitious person
Inspite of the failure of the complainant to appear in the investigation in
connection with his complaint against Felicisimo Malinao, the Court
nevertheless proceeded to investigate the case against him by calling
Judge Restituto Duran of Sta. Rita, Samar, Judge Juanito Reyes of
Zumarraga, Samar and Judge Miguel Avestruz of Daram, Samar.
Judge Restituto Duran of Sta. Rita, Samar, declared that according to
his docket books the respondent appeared as counsel for Vicente
Baculanlan in criminal case No. 1247 in the Municipal Court of Sta. Rita,
Samar, for grave threats and in criminal case No. 1249 for the same
accused and Romulo Villagracia for illegal possession of firearm on
August 5, 1960 and on September 17, 1970.
Judge Miguel Avestruz of Daram, Samar, declared that the respondent
appeared as counsel in civil case No. 39 in the Municipal Court of Daram,
PINEDAPCGRNMAN
Samar, entitled Felix Versoza versus Victor Payao, et al., for forcible
entry on December 15, 1962, January 26, 1963, February 18, 1963 and
on March 1, 1963.
Judge Juanito Reyes declared that on March 27, 1969, the respondent
appeared as counsel for the defendant in civil case No. 318 of the
Municipal Court of Zumarraga entitled Restituto Centino versus Jesus
Tizon for forcible entry and again on June 17, 1970 in the same case.
From the certification of the Clerk of this Court, it appears that the
respondent had the following entries in his daily time record:
1. Was on leave from office on August 5, 1960 and September 17, 1960;
2. Was present in office on December l5, 1962;
3. Was present in office on January 26, 1963, and present also on
February 18, 1963 but undertime by 1 hour;
4. Was on leave from office on March 1, 1963;
5. Was on leave from office on March 27, 1969; and
6. Was present in office on June 17, 1970 but undertime by 5 hours.
Comparing the dates when the respondent appeared before the
aforementioned Municipal Courts with his daily time records, he made it
appear that on December 15, 1962 and February 18, 1963 he was
present in his office although according to the testimony of Judge Miguel
Avestruz he was before his Court on December 15, 1962 as well as on
February 18, 1963. Again according to Judge Juanito Reyes the
respondent appeared in his Court on June 17, 1970. The respondent
again made it appear in his daily time record that he was present with an
undertime of five hours. The respondent did not offer any plausible
explanation for this irregularity.
xxx xxx xxx
With respect to the crime of falsification of his daily time record as shown
by the evidence, he had made it appear that he was present in his office
on December 15, 1962, February 18, 1963 and June 17, 1970 when as
a matter of fact he was in the Municipal Court of Daram attending to a
case entitled Felix Versoza versus Victor Payao, et al., for forcible entry
as well as in the Municipal Court of Zumarraga attending to Civil Case
No. 318 entitled Restituto Centino versus Jesus Tizon for forcible entry.
The Inquest Judge respectfully recommends that he be given stern
warning and severe reprimand for this irregularity.
With respect to the fourth charge, for violation of Section 12, Rule XVIII,
Republic Act 2260, as amended, again the evidence shows that
respondent had been appearing as counsel in the municipal courts of
Sta. Rita, Daram and Zumarraga in violation of the rules of the Civil
Service Law. (Pp. 28-31, Record.)
We have carefully reviewed the record, and We find the conclusions of
fact of the Investigator to be amply supported by the evidence,
particularly the documents consisting of public records and the
declarations of the judges before whom respondent had appeared. It is
clear to Us that respondent, apart from appearing as counsel in various
municipal courts without prior permission of his superiors in violation of
civil service rules and regulations, falsified his time record of service by
making it appear therein that he was present in his office on occasions
when in fact he was in the municipal courts appearing as counsel, without
being a member of the bar, which, furthermore, constitutes illegal
practice of law. We, therefore, adopt the above findings of fact of the
Investigator.
The defense of respondent that "his participation (sic) for defendants'
cause was gratuitous as they could not engage the services of counsel
by reason of poverty and the absence of one in the locality" cannot, even
if true, carry the day for him, considering that in appearing as counsel in
court, he did so without permission from his superiors and, worse, he
falsified his time record of service to conceal his absence from his office
on the dates in question. Indeed, the number of times that respondent
acted as counsel under the above circumstances would indicate that he
was doing it as a regular practice obviously for considerations other than
pure love of justice.
In the premises, it is quite obvious that the offense committed by
Page 143
respondent is grave, hence it warrants a more drastic sanction than that
of reprimand recommended by Judge Zosa. We find no alternative than
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
to separate him from the service, with the admonition that he desist from
appearing in any court or investigative body wherein Only members of
the bar are allowed to practice.
WHEREFORE, respondent Felicisimo Malinao is hereby ordered
dismissed from his position as interpreter in the Court of First Instance,
CFI, Zumarraga, Western Samar with prejudice to reemployment in the
judicial branch of the government.
G.R. No. 169517
ROGELIO A. TAN, NORMA TAN
and MALIYAWAO PAGAYOKAN,
Petitioners,
BENEDICTO M. BALAJADIA,
Respondent. Promulgated:
March 14, 2006
x ---------------------------------------------------------------------------------------- x
DECISION
YNARES-SANTIAGO, J.:
Before us is an original petition[1] for contempt filed by petitioners Rogelio
Tan, Norma Tan and Maliyawao Pagayokan against respondent
Benedicto Balajadia.
Petitioners allege that on May 8, 2005, respondent filed a criminal case
against them with the Office of the City of Prosecutor of Baguio City for
usurpation of authority, grave coercion and violation of city tax ordinance
due to the alleged illegal collection of parking fees by petitioners from
respondent. In paragraph 5 of the complaint-affidavit, respondent
asserted that he is a practicing lawyer based in Baguio City with office
address at Room B-207, 2/F Lopez Building, Session
Road, Baguio City.[2] However, certifications issued by the Office of the
Bar Confidant[3] and the Integrated Bar of the Philippines[4] showed that
respondent has never been admitted to the Philippine Bar.Hence,
petitioners claim that respondent is liable for indirect contempt for
misrepresenting himself as a lawyer.
In his Comment,[5] respondent avers that the allegation in paragraph 5 of
the complaint-affidavit that he is a practicing lawyer was an honest
mistake. He claims that the secretary of Atty. Paterno Aquino prepared
the subject complaint-affidavit which was patterned after Atty. Aquinos
complaint-affidavit.[6] It appears that Atty. Aquino had previously filed a
complaint-affidavit against petitioners involving the same subject matter.
Respondent claims that two complaint-affidavits were drafted by the
same secretary; one for the May 5, 2005 parking incident at 10:00
oclock in the morning and another for the parking incident on the same
date but which occurred at 1:00 oclock in the afternoon. Respondent
insists that the complaint-affidavit regarding the 1:00 oclock parking
incident correctly alleged that he is a businessman with office address at
Room B-204, 2/F Lopez Building, Session
Road, Baguio City.[7] However, the complaint-affidavit regarding
the 10:00 oclock parking incident, which is the subject of the instant
petition, erroneously referred to him as a practicing lawyer because Atty.
Aquinos secretary copied verbatim paragraph 5 of Atty. Aquinos
complaint-affidavit. Hence, it was inadvertently alleged that respondent
is a practicing lawyer based in Baguio City with office address at Room
B-207, 2/F Lopez Building, Session Road, Baguio City, which statement
referred to the person of Atty. Aquino and his law office address.
PINEDAPCGRNMAN
Liza Laconsay, Atty. Aquinos secretary, executed an affidavit[8] admitting
the mistake in the preparation of the complaint-affidavit. Respondent
alleged that he did not read the complaint-affidavit because he assumed
that the two complaint-affidavits contained the same allegations with
respect to his occupation and office address. Respondent claims that he
had no intention of misrepresenting himself as a practicing lawyer.
In their Reply,[9] petitioners reiterate that respondent should be made
liable for indirect contempt for having made untruthful statements in the
complaint-affidavit and that he cannot shift the blame to Atty. Aquinos
secretary.
The sole issue for resolution is whether respondent is liable for indirect
contempt.
Section 3(e), Rule 71 of the Rules of Court provides:
Section 3. Indirect contempt to be punished after charge and hearing.
After a charge in writing has been filed, and an opportunity given to the
respondent to comment thereon within such period as may be fixed by
the court and to be heard by himself or counsel, a person guilty of any of
the following acts may be punished for indirect contempt:
xxxx
(e) Assuming to be an attorney or an officer of a court, and acting as
such without authority;
x x x x.
In several cases,[10] we have ruled that the unauthorized practice of law
by assuming to be an attorney and acting as such without authority
constitutes indirect contempt which is punishable by fine or imprisonment
or both. The liability for the unauthorized practice of law under Section
3(e), Rule 71 of the Rules of Court is in the nature of criminal contempt
and the acts are punished because they are an affront to the dignity and
authority of the court, and obstruct the orderly administration of justice. In
determining liability for criminal contempt, well-settled is the rule that
intent is a necessary element, and no one can be punished unless the
evidence makes it clear that he intended to commit it.[11]
In the case at bar, a review of the records supports respondents claim
that he never intended to project himself as a lawyer to the public. It was
a clear inadvertence on the part of the secretary of Atty Aquino. The
affidavit of Liza Laconsay attesting to the circumstances that gave rise
to the mistake in the drafting of the complaint-affidavit conforms to the
documentary evidence on record. Taken together, these circumstances
show that the allegation in paragraph 5 of respondents complaint-
affidavit was, indeed, the result of inadvertence.
Respondent has satisfactorily shown that the allegation that he is a
practicing lawyer was the result of inadvertence and cannot, by itself,
establish intent as to make him liable for indirect contempt. In the cases
where we found a party liable for the unauthorized practice of law, the
party was guilty of some overt act like signing court pleadings on behalf
of his client;[12] appearing before court hearings as an
attorney;[13] manifesting before the court that he will practice law despite
being previously denied admission to the bar;[14] or deliberately
attempting to practice law and holding out himself as an attorney through
circulars with full knowledge that he is not licensed to do so.[15]
In the case at bar, no evidence was presented to show that respondent
acted as an attorney or that he intended to practice law. Consequently,
he cannot be made liable for indirect contempt considering his lack of
Page 144
intent to illegally practice law.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
However, while the evidence on record failed to prove respondents
deliberate intent to misrepresent himself as an attorney and act as such
without authority, he is hereby warned to be more careful and
circumspect in his future actions.
WHEREFORE, the petition is DISMISSED. Respondent is WARNED to
be more careful and circumspect in his future actions.
SO ORDERED.
[B. M. No. 1036. June 10, 2003]
DONNA MARIE S. AGUIRRE, complainant, vs. EDWIN L.
RANA, respondent.
DECISION
CARPIO, J.:
The Case
Before one is admitted to the Philippine Bar, he must possess the
requisite moral integrity for membership in the legal profession.
Possession of moral integrity is of greater importance than possession
of legal learning. The practice of law is a privilege bestowed only on the
morally fit. A bar candidate who is morally unfit cannot practice law even
if he passes the bar examinations.
The Facts
Respondent Edwin L. Rana (respondent) was among those who passed
the 2000 Bar Examinations.
On 21 May 2001, one day before the scheduled mass oath-taking of
successful bar examinees as members of the Philippine Bar,
complainant Donna Marie Aguirre (complainant) filed against respondent
a Petition for Denial of Admission to the Bar. Complainant charged
respondent with unauthorized practice of law, grave misconduct,
violation of law, and grave misrepresentation.
The Court allowed respondent to take his oath as a member of the Bar
during the scheduled oath-taking on 22 May 2001 at the Philippine
International Convention Center. However, the Court ruled that
respondent could not sign the Roll of Attorneys pending the resolution of
the charge against him. Thus, respondent took the lawyers oath on the
scheduled date but has not signed the Roll of Attorneys up to now.
Complainant charges respondent for unauthorized practice of law and
grave misconduct. Complainant alleges that respondent, while not yet a
lawyer, appeared as counsel for a candidate in the May 2001 elections
before the Municipal Board of Election Canvassers (MBEC) of Mandaon,
Masbate. Complainant further alleges that respondent filed with the
MBEC a pleading dated 19 May 2001 entitled Formal Objection to the
Inclusion in the Canvassing of Votes in Some Precincts for the Office of
Vice-Mayor. In this pleading, respondent represented himself as counsel
for and in behalf of Vice Mayoralty Candidate, George Bunan, and signed
the pleading as counsel for George Bunan (Bunan).
On the charge of violation of law, complainant claims that respondent is
a municipal government employee, being a secretary of the
Sangguniang Bayan of Mandaon, Masbate. As such, respondent is not
allowed by law to act as counsel for a client in any court or administrative
body.
On the charge of grave misconduct and misrepresentation, complainant
accuses respondent of acting as counsel for vice mayoralty candidate
George Bunan (Bunan) without the latter engaging respondents
services. Complainant claims that respondent filed the pleading as a
ploy to prevent the proclamation of the winning vice mayoralty candidate.
On 22 May 2001, the Court issued a resolution allowing respondent to
take the lawyers oath but disallowed him from signing the Roll of
Attorneys until he is cleared of the charges against him. In the same
resolution, the Court required respondent to comment on the complaint
against him.
In his Comment, respondent admits that Bunan sought his specific
assistance to represent him before the MBEC. Respondent claims that
he decided to assist and advice Bunan, not as a lawyer but as a person
who knows the law. Respondent admits signing the 19 May 2001
PINEDAPCGRNMAN
pleading that objected to the inclusion of certain votes in the
canvassing. He explains, however, that he did not sign the pleading as
a lawyer or represented himself as an attorney in the pleading.
On his employment as secretary of the Sangguniang Bayan, respondent
claims that he submitted his resignation on 11 May 2001 which was
allegedly accepted on the same date. He submitted a copy of the
Certification of Receipt of Revocable Resignation dated 28 May 2001
signed by Vice-Mayor Napoleon Relox. Respondent further claims that
the complaint is politically motivated considering that complainant is the
daughter of Silvestre Aguirre, the losing candidate for mayor of
Mandaon, Masbate. Respondent prays that the complaint be dismissed
for lack of merit and that he be allowed to sign the Roll of Attorneys.
On 22 June 2001, complainant filed her Reply to respondents Comment
and refuted the claim of respondent that his appearance before the
MBEC was only to extend specific assistance to Bunan. Complainant
alleges that on 19 May 2001 Emily Estipona-Hao (Estipona-Hao) filed a
petition for proclamation as the winning candidate for mayor.
Respondent signed as counsel for Estipona-Hao in this petition. When
respondent appeared as counsel before the MBEC, complainant
questioned his appearance on two grounds: (1) respondent had not
taken his oath as a lawyer; and (2) he was an employee of the
government.
Respondent filed a Reply (Re: Reply to Respondents
Comment) reiterating his claim that the instant administrative case is
motivated mainly by political vendetta.
On 17 July 2001, the Court referred the case to the Office of the Bar
Confidant (OBC) for evaluation, report and recommendation.
OBCs Report and Recommendation
The OBC found that respondent indeed appeared before the MBEC as
counsel for Bunan in the May 2001 elections. The minutes of the MBEC
proceedings show that respondent actively participated in the
proceedings. The OBC likewise found that respondent appeared in the
MBEC proceedings even before he took the lawyers oath on 22 May
2001. The OBC believes that respondents misconduct casts a serious
doubt on his moral fitness to be a member of the Bar. The OBC also
believes that respondents unauthorized practice of law is a ground to
deny his admission to the practice of law. The OBC therefore
recommends that respondent be denied admission to the Philippine Bar.
On the other charges, OBC stated that complainant failed to cite a law
which respondent allegedly violated when he appeared as counsel for
Bunan while he was a government employee. Respondent resigned as
secretary and his resignation was accepted. Likewise, respondent was
authorized by Bunan to represent him before the MBEC.
The Courts Ruling
We agree with the findings and conclusions of the OBC that respondent
engaged in the unauthorized practice of law and thus does not deserve
admission to the Philippine Bar.
Respondent took his oath as lawyer on 22 May 2001. However, the
records show that respondent appeared as counsel for Bunan prior to 22
May 2001, before respondent took the lawyers oath. In the pleading
entitled Formal Objection to the Inclusion in the Canvassing of Votes in
Some Precincts for the Office of Vice-Mayor dated 19 May 2001,
respondent signed ascounsel for George Bunan. In the first paragraph
of the same pleading respondent stated that he was the (U)ndersigned
Counsel for, and in behalf of Vice Mayoralty Candidate, GEORGE T.
BUNAN. Bunan himself wrote the MBEC on 14 May 2001 that he had
authorized Atty. Edwin L. Rana as his counsel to represent him before
the MBEC and similar bodies.
On 14 May 2001, mayoralty candidate Emily Estipona-Hao also retained
respondent as her counsel. On the same date, 14 May 2001, Erly D. Hao
informed the MBEC that Atty. Edwin L. Rana has been authorized by
REFORMA LM-PPC as the legal counsel of the party and the candidate
of the said party. Respondent himself wrote the MBEC on 14 May 2001
that he was entering his appearance as counsel for Mayoralty
Page 145
Candidate Emily Estipona-Hao and for the REFORMA LM-PPC. On
19 May 2001, respondent signed as counsel for Estipona-Hao in the
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
petition filed before the MBEC praying for the proclamation of Estipona-
Hao as the winning candidate for mayor of Mandaon, Masbate.
All these happened even before respondent took the lawyers
oath. Clearly, respondent engaged in the practice of law without being a
member of the Philippine Bar.
In Philippine Lawyers Association v. Agrava,[1] the Court elucidated that:
The practice of law is not limited to the conduct of cases or litigation in
court; it embraces the preparation of pleadings and other papers incident
to actions and special proceedings, the management of such actions and
proceedings on behalf of clients before judges and courts, and in
addition, conveyancing. In general, all advice to clients, and all action
taken for them in matters connected with the law,incorporation services,
assessment and condemnation services contemplating an appearance
before a judicial body, the foreclosure of a mortgage, enforcement of a
creditor's claim in bankruptcy and insolvency proceedings, and
conducting proceedings in attachment, and in matters of estate and
guardianship have been held to constitute law practice, as do the
preparation and drafting of legal instruments,where the work done
involves the determination by the trained legal mind of the legal effect of
facts and conditions. (5 Am. Jur. p. 262, 263). (Italics supplied) x x x
In Cayetano v. Monsod,[2] the Court held that practice of law means any
activity, in or out of court, which requires the application of law, legal
procedure, knowledge, training and experience. To engage in the
practice of law is to perform acts which are usually performed by
members of the legal profession. Generally, to practice law is to render
any kind of service which requires the use of legal knowledge or skill.
Verily, respondent was engaged in the practice of law when he appeared
in the proceedings before the MBEC and filed various pleadings, without
license to do so. Evidence clearly supports the charge of unauthorized
practice of law. Respondent called himself counsel knowing fully well that
he was not a member of the Bar. Having held himself out as counsel
knowing that he had no authority to practice law, respondent has shown
moral unfitness to be a member of the Philippine Bar.[3]
The right to practice law is not a natural or constitutional right but is a
privilege. It is limited to persons of good moral character with special
qualifications duly ascertained and certified.The exercise of this privilege
presupposes possession of integrity, legal knowledge, educational
attainment, and even public trust[4] since a lawyer is an officer of the
court. A bar candidate does not acquire the right to practice law simply
by passing the bar examinations. The practice of law is a privilege that
can be withheld even from one who has passed the bar examinations, if
the person seeking admission had practiced law without a license.[5]
The regulation of the practice of law is unquestionably strict. In Beltran,
Jr. v. Abad,[6] a candidate passed the bar examinations but had not
taken his oath and signed the Roll of Attorneys. He was held in contempt
of court for practicing law even before his admission to the Bar. Under
Section 3 (e) of Rule 71 of the Rules of Court, a person who engages in
the unauthorized practice of law is liable for indirect contempt of court.[7]
True, respondent here passed the 2000 Bar Examinations and took the
lawyers oath. However, it is the signing in the Roll of Attorneys that finally
makes one a full-fledged lawyer. The fact that respondent passed the
bar examinations is immaterial. Passing the bar is not the only
qualification to become an attorney-at-law.[8] Respondent should know
that two essential requisites for becoming a lawyer still had to be
performed, namely: his lawyers oath to be administered by this Court
and his signature in the Roll of Attorneys.[9]
On the charge of violation of law, complainant contends that the law does
not allow respondent to act as counsel for a private client in any court or
administrative body since respondent is the secretary of the
Sangguniang Bayan.
Respondent tendered his resignation as secretary of the Sangguniang
Bayan prior to the acts complained of as constituting unauthorized
practice of law. In his letter dated 11 May 2001 addressed to Napoleon
Relox, vice- mayor and presiding officer of the Sangguniang Bayan,
respondent stated that he was resigning effective upon your
acceptance.[10] Vice-Mayor Relox accepted respondents resignation
PINEDAPCGRNMAN
effective 11 May 2001.[11] Thus, the evidence does not support the
charge that respondent acted as counsel for a client while serving as
secretary of the Sangguniang Bayan.
On the charge of grave misconduct and misrepresentation, evidence
shows that Bunan indeed authorized respondent to represent him as his
counsel before the MBEC and similar bodies. While there was no
misrepresentation, respondent nonetheless had no authority to practice
law.
WHEREFORE, respondent Edwin L. Rana is DENIED admission to the
Philippine Bar.
SO ORDERED.
Rule 9.01 A lawyer shall not delegate to any unqualified person
the performance of any task which by law may only be performed
by a member of the bar in good standing.
Rule 9.02 A lawyer shall not divide or stipulate to divide a fee for
legal services with persons not licensed to practice law, except:
1. a. Where there is a pre-existing agreement, with a
partner or associate that , upon the latters death, money
shall be paid over a reasonable period of time to his
estate or to the persons specified in the agreement; or
2. b. Where a lawyer undertakes to complete unfinished
legal business of a deceased lawyer; or
3. c. Where a lawyer or law firm includes non-lawyer
employees in a retirement plan, even if the plan is based
in whole or in part of a profit sharing arrangements.
Lawyer shall not negotiate with the opposite party who is
represented by a counsel. Neither should lawyer attempt to
interview the opposite party and question him as to the facts
of the case even if the adverse party is willing to do so.
Lawyer should deal only with counsel, even if theres a fair
agreement.
Lawyer may however interview any witness or prospective
witness for the opposing side. Limitation: avoid influencing
witness in recital and conduct.
A lawyer must not take as partner or associate one who:
1. is not a lawyer
2. is disbarred
3. has been suspended from the practice of law
4. foreign lawyer, unless licensed by the SC.
A lawyer cannot delegate his authority without clients
consent even to a qualified person.
A.C. No. 6317 August 31, 2006
LUZVIMINDA C. LIJAUCO, Complainant,
vs.
ATTY. ROGELIO P. TERRADO, Respondent.
DECISION
YNARES-SANTIAGO, J.:
On February 13, 2004, an administrative complaint1 was filed by
complainant Luzviminda C. Lijauco against respondent Atty. Rogelio P.
Terrado for gross misconduct, malpractice and conduct unbecoming of
an officer of the court when he neglected a legal matter entrusted to him
despite receipt of payment representing attorneys fees.
According to the complainant, she engaged the services of respondent
sometime in January 2001 for P70,000.00 to assist in recovering her
deposit with Planters Development Bank, Buendia, Makati branch in the
amount of P180,000.00 and the release of her foreclosed house and lot
located in Calamba, Laguna. The property identified as Lot No. 408-C-2
and registered as TCT No. T-402119 in the name of said bank is the
subject of a petition for the issuance of a writ of possession then pending
before the Regional Trial Court of Binan, Laguna, Branch 24 docketed
Page 146
as LRC Case No. B-2610.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Complainant alleged that respondent failed to appear before the trial
court in the hearing for the issuance of the Writ of Possession and did
not protect her interests in the Compromise Agreement which she
subsequently entered into to end LRC Case No. B-2610.2
Respondent denied the accusations against him. He averred that the
P70,000.00 he received from complainant was payment for legal
services for the recovery of the deposit with Planters Development Bank
and did not include LRC Case No. B-2610 pending before the Regional
Trial Court of Bian, Laguna.
The complaint was referred3 to the Integrated Bar of the Philippines (IBP)
for investigation, report and recommendation. On September 21, 2005,
the Investigating Commissioner submitted his report finding respondent
guilty of violating Rules 1.01 and 9.02 of the Code of Professional
Responsibility which provide:
Rule 1.01 A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct.
Rule 9.02 A lawyer shall not divide or stipulate to divide a fee for legal
services with persons not licensed to practice law, except:
a) Where there is a pre-existing agreement with a partner or associate
that, upon the latters death, money shall be paid over a reasonable
period of time to his estate or to the persons specified in the agreement;
or
b) Where a lawyer undertakes to complete unfinished legal business of
a deceased lawyer; or
c) Where a lawyer or law firm includes non-lawyer employees in a
retirement plan, even if the plan is based in whole or in part, on a profit-
sharing arrangement.
In finding the respondent guilty of violating Rules 1.01 and 9.02 of the
Code of Professional Responsibility, the Investigating Commissioner
opined that:
In disbarment proceedings, the burden of proof rests upon the
complainant. To be made the suspension or disbarment of a lawyer, the
charge against him must be established by convincing proof. The record
must disclose as free from doubt a case which compels the exercise by
the Supreme Court of its disciplinary powers. The dubious character of
the act done as well as of the motivation thereof must be clearly
demonstrated. x x x.
In the instant scenario, despite the strong protestation of respondent that
the Php70,000.00 legal fees is purely and solely for the recovery of the
Php180,000.00 savings account of complainant subsequent acts and
events say otherwise, to wit:
1.) The Php70,000.00 legal fees for the recovery of a Php180,000.00
savings deposit is too high;
2.) Respondent actively acted as complainants lawyer to effectuate the
compromise agreement.
By openly admitting he divided the Php70,000.00 to other individuals as
commission/referral fees respondent violated Rule 9.02, Canon 9 of the
Code of Professional Responsibility which provides that a lawyer shall
not divide or stipulate to divide a fee for legal services with persons not
licensed to practice law. Worst, by luring complainant to participate in a
compromise agreement with a false and misleading assurance that
complainant can still recover after Three (3) years her foreclosed
property respondent violated Rule 1.01, Canon 1 of the Code of
Professional Responsibility which says a lawyer shall not engage in
unlawful, dishonest, immoral or deceitful conduct.4
The Investigating Commissioner thus recommended:
WHEREFORE, finding respondent responsible for aforestated violations
to protect the public and the legal profession from his kind, it is
recommended that he be suspended for Six (6) months with a stern
warning that similar acts in the future will be severely dealt with.5
The IBP Board of Governors adopted the recommendation of the
investigating commissioner.6
We agree with the findings of the IBP.
The practice of law is a privilege bestowed on those who show that they
possessed and continue to possess the legal qualifications for it. Indeed,
lawyers are expected to maintain at all times a high standard of legal
PINEDAPCGRNMAN
proficiency and morality, including honesty, integrity and fair dealing.
They must perform their fourfold duty to society, the legal profession, the
courts and their clients, in accordance with the values and norms of the
legal profession as embodied in the Code of Professional
Responsibility.7
Lawyers are prohibited from engaging in unlawful, dishonest, immoral or
deceitful conduct8 and are mandated to serve their clients with
competence and diligence.9 They shall not neglect a legal matter
entrusted to them, and this negligence in connection therewith shall
render them liable.10
Respondents claim that the attorneys fee pertains only to the recovery
of complainants savings deposit from Planters Development Bank
cannot be sustained. Records show that he acted as complainants
counsel in the drafting of the compromise agreement between the latter
and the bank relative to LRC Case No. B-2610. Respondent admitted
that he explained the contents of the agreement to complainant before
the latter affixed her signature. Moreover, the Investigating
Commissioner observed that the fee of P70,000.00 for legal assistance
in the recovery of the deposit amounting to P180,000.00 is
unreasonable. A lawyer shall charge only fair and reasonable fees.11
Respondents disregard for his clients interests is evident in the
iniquitous stipulations in the compromise agreement where the
complainant conceded the validity of the foreclosure of her property; that
the redemption period has already expired thus consolidating ownership
in the bank, and that she releases her claims against it.12 As found by
the Investigating Commissioner, complainant agreed to these
concessions because respondent misled her to believe that she could
still redeem the property after three years from the foreclosure. The duty
of a lawyer to safeguard his clients interests commences from his
retainer until his discharge from the case or the final disposition of the
subject matter of litigation. Acceptance of money from a client
establishes an attorney-client relationship and gives rise to the duty of
fidelity to the clients cause. The canons of the legal profession require
that once an attorney agrees to handle a case, he should undertake the
task with zeal, care and utmost devotion.13
Respondents admission14 that he divided the legal fees with two other
people as a referral fee does not release him from liability. A lawyer shall
not divide or stipulate to divide a fee for legal services with persons not
licensed to practice law, except in certain cases.15
Under Section 27, Rule 138 of the Rules of Court, a member of the Bar
may be disbarred or suspended on the following grounds: 1) deceit; 2)
malpractice, or other gross misconduct in office; 3) grossly immoral
conduct; 4) conviction of a crime involving moral turpitude; 5) violation of
the lawyers oath; 6) willful disobedience to any lawful order of a superior
court; and 7) willfully appearing as an attorney for a party without
authority.
In Santos v. Lazaro16 and Dalisay v. Mauricio, Jr.,17 we held that Rule
18.03 of the Code of Professional Responsibility is a basic postulate in
legal ethics. When a lawyer takes a clients cause, he covenants that he
will exercise due diligence in protecting his rights. The failure to exercise
that degree of vigilance and attention makes such lawyer unworthy of
the trust reposed in him by his client and makes him answerable not just
to his client but also to the legal profession, the courts and society.
A lawyer should give adequate attention, care and time to his clients
case. Once he agrees to handle a case, he should undertake the task
with dedication and care. If he fails in this duty, he is not true to his oath
as a lawyer. Thus, a lawyer should accept only as much cases as he can
efficiently handle in order to sufficiently protect his clients interests. It is
not enough that a lawyer possesses the qualification to handle the legal
matter; he must also give adequate attention to his legal work. Utmost
fidelity is demanded once counsel agrees to take the cudgels for his
clients cause.18
In view of the foregoing, we find that suspension from the practice of law
for six months is warranted. In addition, he is directed to return to
Page 147
complainant the amount he received by way of legal fees pursuant to
existing jurisprudence.19
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
WHEREFORE, Atty. Rogelio P. Terrado is found GUILTY of violating
Rules 1.01, 9.02, 18.02 and 20.01 of the Code of Professional
Responsibility. He is SUSPENDED from the practice of law for six (6)
months effective from notice, and STERNLY WARNED that any similar
infraction will be dealt with more severely. He is further ordered
to RETURN, within thirty (30) days from notice, the sum of P70,000.00
to complainant Luzviminda C. Lijauco and to submit to this Court proof
of his compliance within three (3) days therefrom.
Let copies of this Decision be entered in the record of respondent and
served on the IBP, as well as on the Court Administrator who shall
circulate it to all courts for their information and guidance.
SO ORDERED.
PINEDAPCGRNMAN
to engage in the unauthorized practice of law holding themselves out as
his partners/associates in the law firm.
The dispositive portion of the decision thus reads:
WHEREFORE, Anastacio E. Revilla, Jr. is hereby found guilty of gross
misconduct and is SUSPENDED for two years from the practice of law,
effective upon his receipt of this Decision. He is warned that a repetition
of the same or similar acts will be dealt with more severely.
Let copies of this Decision be entered in the record of respondent as
attorney and served on the IBP, as well as on the court administrator
who shall circulate it to all courts for their information and guidance.[1]

PLUS BUILDERS, INC., and A.C. No. 7056 Respondent duly filed a motion for reconsideration within the
EDGARDO C. GARCIA, Present: reglementary period, appealing to the Court to take a second look at his
Complainants, case and praying that the penalty of suspension of two years be reduced
PUNO, C J., to mere reprimand or admonition for the sake of his family and the poor
QUISUMBING, clients he was defending.[2]
YNARES-SANTIAGO,
CARPIO, Respondent maintains that he did not commit the acts complained
AUSTRIA-MARTINEZ, of. The courses of action he took were not meant to unduly delay the
CORONA, execution of the DARAB Decision dated November 19, 1999, but were
CARPIO MORALES, based on his serious study, research and experience as a litigation
AZCUNA, lawyer for more than 20 years and on the facts given to him by his clients
-versus- TINGA, in the DARAB case. He believes that the courses of action he took were
CHICO-NAZARIO, valid and proper legal theory designed to protect the rights and interests
VELASCO, JR., of Leopoldo de Guzman, et. al.[3] He stresses that he was not the original
NACHURA, lawyer in this case. The lawyer-client relationship with the former lawyer
LEONARDO-DE was terminated because Leopoldo de Guzman, et. al. felt that their
CASTRO, former counsel did not explain/argue their position very well, refused to
BRION, and listen to them and, in fact, even castigated them. As the new counsel,
PERALTA, JJ. respondent candidly relied on what the tenants/farmers told him in the
course of his interview. They maintained that they had been in open,
ATTY. ANASTACIO E. Promulgated: adverse, continuous and notorious possession of the land in the concept
REVILLA, JR., February 11, 2009 of an owner for more than 50 years. Thus, the filing of the action to quiet
Respondent. title was resorted to in order to determine the rights of his clients
respecting the subject property. He avers that he merely exhausted all
possible remedies and defenses to which his clients were entitled under
RESOLUTION the law, considering that his clients were subjected to harassment and
threats of physical harm and summary eviction by the complainant.[4] He
NACHURA, J. posits that he was only being protective of the interest of his clients as a
good father would be protective of his own family,[5] and that his services
Before us is a motion for reconsideration of our Decision dated to Leopoldo de Guzman, et. al were almost pro bono.[6]
September 13, 2006, finding respondent guilty of gross misconduct for
committing a willful and intentional falsehood before the court, misusing Anent the issue that he permitted his name to be used for unauthorized
court procedure and processes to delay the execution of a judgment and practice of law, he humbly submits that there was actually no sufficient
collaborating with non-lawyers in the illegal practice of law. evidence to prove the same or did he fail to dispute this, contrary to the
findings of the Integrated Bar of the Philippines (IBP). He was counsel of
To recall, the antecedents of the case are as follows: Leopoldo de Guzman, et al. only and not of the cooperative Kalayaan
Development Cooperative (KDC). He was just holding his office in this
On November 15, 1999, a decision was rendered by the Provincial cooperative, together with Attys. Dominador Ferrer, Efren Ambrocio, the
Adjudicator of Cavite (PARAD) in favor of herein complainant, Plus late Alfredo Caloico and Marciano Villavert. He signed the retainer
Builders, Inc. and against the tenants/farmers Leopoldo de Guzman, agreement with Atty. Dominador to formalize their lawyer-client
Heirs of Bienvenido de Guzman, Apolonio Ilas and Gloria Martirez relationship, and the complainants were fully aware of such
Siongco, Heirs of Faustino Siongco, Serafin Santarin, Benigno Alvarez arrangement.[7]
and Maria Esguerra, who were the clients of respondent, Atty. Anastacio
E. Revilla, Jr. The PARAD found that respondents clients were mere Finally, he submits that if he is indeed guilty of violating the rules in the
tenants and not rightful possessors/owners of the subject land. The case courses of action he took in behalf of his clients, he apologizes and
was elevated all the way up to the Supreme Court, with this Court supplicates the Court for kind consideration, pardon and forgiveness. He
sustaining complainants rights over the land. Continuing to pursue his reiterates that he does not deserve the penalty of two years
clients lost cause, respondent was found to have committed intentional suspension, considering that the complaint fails to show him wanting in
falsehood; and misused court processes with the intention to delay the character, honesty, and probity; in fact, he has been a member of the bar
execution of the decision through the filing of several motions, petitions for more than 20 years, served as former president of the IBP
Page 148

for temporary restraining orders, and the last, an action to quiet title Marinduque Chapter, a legal aide lawyer of IBP Quezon City handling
despite the finality of the decision. Furthermore, he allowed non-lawyers detention prisoners and pro bono cases, and is also a member of the

Intelligentia et Scientia Semper Mea

LEGAL ETHICS
Couples for Christ, and has had strict training in the law school he
graduated from and the law offices he worked with.[8] He is the sole
breadwinner in the family with a wife who is jobless, four (4) children who
are in school, a mother who is bedridden and a sick sister to support. The
familys only source of income is respondents private practice of law, a
work he has been engaged in for more than twenty-five (25) years up to
the present.[9]
On August 15, 2008, the Office of the Bar Confidant (OBC) received a
letter from respondent, requesting that he be issued a clearance for the
renewal of his notarial commission. Respondent stated therein that he
was aware of the pendency of the administrative cases[10] against him,
but pointed out that said cases had not yet been resolved with
finality. Respondent sought consideration and compassion for the
issuance of the clearance -- considering present economic/financial
difficulties -- and reiterating the fact that he was the sole breadwinner in
the family.
It is the rule that when a lawyer accepts a case, he is expected to give
his full attention, diligence, skill and competence to the case, regardless
of its importance and whether he accepts it for a fee or for free.[11] A
lawyers devotion to his clients cause not only requires but also entitles
him to deploy every honorable means to secure for the client what is
justly due him or to present every defense provided by law to enable the
latters cause to succeed.[12] In this case, respondent may not be wanting
in this regard. On the contrary, it is apparent that the respondents acts
complained of were committed out of his over-zealousness and
misguided desire to protect the interests of his clients who were poor and
uneducated. We are not unmindful of his dedication and conviction in
defending the less fortunate. Taking the cudgels from the former lawyer
in this case is rather commendable, but respondent should not forget his
first and foremost responsibility as an officer of the court. We stress what
we have stated in our decision that, in support of the cause of their
clients, lawyers have the duty to present every remedy or defense within
the authority of the law. This obligation, however, is not to be performed
at the expense of truth and justice.[13] This is the criterion that must be
borne in mind in every exertion a lawyer gives to his case.[14] Under the
Code of Professional Responsibility, a lawyer has the duty to assist in
the speedy and efficient administration of justice, and is enjoined from
unduly delaying a case by impeding execution of a judgment or by
misusing court processes.[15]
Certainly, violations of these canons cannot be countenanced, as
respondent must have realized with the sanction he received from this
Court. However, the Court also knows how to show compassion and will
not hesitate to refrain from imposing the appropriate penalties in the
presence of mitigating factors, such as the respondents length of service,
acknowledgment of his or her infractions and feeling of remorse, family
circumstances, humanitarian and equitable considerations, and
respondents advanced age, among other things, which have varying
significance in the Courts determination of the imposable penalty. Thus,
after a careful consideration of herein respondents motion for
reconsideration and humble acknowledgment of his misfeasance, we
are persuaded to extend a degree of leniency towards him.[16] We find
the suspension of six (6) months from the practice of law sufficient in this
case
IN VIEW OF THE FOREGOING, the letter-request dated August 15,
2008 is NOTED. Respondents Motion for Reconsideration
is PARTIALLY GRANTED. The Decision dated September 13, 2006 is
hereby MODIFIED in that respondent is SUSPENDED from the practice
of law for a period of six (6) months, effective upon receipt of this
Resolution. Respondent is DIRECTED to inform the Court of the date of
his receipt of said Resolution within ten (10) days from receipt thereof.
PINEDAPCGRNMAN
CHAPTER III
THE LAWYER AND THE COURTS
CANON 10 A LAWYER OWES CANDOR, FAIRNESS AND GOOD
FAITH TO THE COURT.
Rule 10.01 A lawyer shall not do any falsehood, nor consent to
the doing of any in court; nor shall he mislead or allow the court to
be mislead by any artifice.
Canon 32, CPE
A lawyer should not render any service or advice to any client no matter
how powerful or important is the cause which will involve disloyalty to
the laws of the country which he is bound to uphold and obey.
A.C. No. 6198 September 15, 2006
RENATO M. MALIGAYA, complainant,
vs.
ATTY. ANTONIO G. DORONILLA, JR., respondent.
RESOLUTION
CORONA, J.:
Atty. Antonio G. Doronilla, Jr. of the Judge Advocate General's Service
is before us on a charge of unethical conduct for having uttered a
falsehood in open court during a hearing of Civil Case No. Q-99-38778.1
Civil Case No. Q-99-38778 was an action for damages filed by
complainant Renato M. Maligaya, a doctor and retired colonel of the
Armed Forces of the Philippines, against several military officers for
whom Atty. Doronilla stood as counsel. At one point during the February
19, 2002 hearing of the case, Atty. Doronilla said:
And another matter, Your Honor. I was appearing in other cases he
[complainant Maligaya] filed before against the same defendants. We
had an agreement that if we withdraw the case against him, he will
also withdraw all the cases. So, with that understanding, he even
retired and he is now receiving pension.2 (emphasis supplied)
Considering this to be of some consequence, presiding Judge Reynaldo
B. Daway asked a number of clarificatory questions and thereafter
ordered Atty. Doronilla to put his statements in writing and "file the
appropriate pleading."3 Weeks passed but Atty. Doronilla submitted no
such pleading or anything else to substantiate his averments.
On April 29, 2002, Maligaya filed a complaint against Atty. Doronilla in
the Integrated Bar of the Philippines (IBP) Commission on Bar
Discipline.4 The complaint, which charged Atty. Doronilla with
"misleading the court through misrepresentation of facts resulting [in]
obstruction of justice,"5 was referred to a commissioner6 for
investigation. Complainant swore before the investigating commissioner
that he had never entered into any agreement to withdraw his
lawsuits.7 Atty. Doronilla, who took up the larger part of two hearings to
present evidence and explain his side, admitted several times that there
was, in fact, no such agreement.8 Later he explained in his memorandum
that his main concern was "to settle the case amicably among comrades
in arms without going to trial"9 and insisted that there was no proof of his
having violated the Code of Professional Responsibility or the lawyer's
oath.10 He pointed out, in addition, that his false statement (or, as he put
it, his "alleged acts of falsity") had no effect on the continuance of the
case and therefore caused no actual prejudice to complainant.11
In due time, investigating commissioner Lydia A. Navarro submitted a
report and recommendation finding Atty. Doronilla guilty of purposely
stating a falsehood in violation of Canon 10, Rule 10.01 of the Code of
Professional Responsibility12 and recommending that he be "suspended
from the government military service as legal officer for a period of three
months."13 This was adopted and approved in toto by the IBP Board of
Governors on August 30, 2003.14
There is a strong public interest involved in requiring lawyers who, as
Page 149
officers of the court, participate in the dispensation of justice, to behave
at all times in a manner consistent with truth and honor.15 The common
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
caricature that lawyers by and large do not feel compelled to speak the
truth and to act honestly should not become a common reality.16 To this
end, Canon 10 and Rule 10.01 of the Code of Professional Responsibility
state:
CANON 10 A LAWYER OWES CANDOR, FAIRNESS, AND GOOD
FAITH TO THE COURT.
Rule 10.01 A lawyer shall not do any falsehood, nor consent to the
doing of any in court; nor shall he mislead, or allow the Court to be misled
by any artifice.
By stating untruthfully in open court that complainant had agreed to
withdraw his lawsuits, Atty. Doronilla breached these peremptory tenets
of ethical conduct. Not only that, he violated the lawyer's oath to "do no
falsehood, nor consent to the doing of any in court," of which Canon 10
and Rule 10.01 are but restatements. His act infringed on every lawyer's
duty to "never seek to mislead the judge or any judicial officer by an
artifice or false statement of fact or law."17
Atty. Doronilla's unethical conduct was compounded, moreover, by his
obstinate refusal to acknowledge the impropriety of what he had done.
From the very beginning of this administrative case, Atty. Doronilla
maintained the untenable position that he had done nothing wrong in the
hearing of Civil Case No. Q-99-38778. He persisted in doing so even
after having admitted that he had, in that hearing, spoken of an
agreement that did not in truth exist. Rather than express remorse for
that regrettable incident, Atty. Doronilla resorted to an ill-conceived
attempt to evade responsibility, professing that the falsehood had not
been meant for the information of Judge Daway but only as "a sort of
question" to complainant regarding a "pending proposal" to settle the
case.18
The explanation submitted by Atty. Doronilla, remarkable only for its
speciousness,19 cannot absolve him. If anything, it leads us to suspect
an unseemly readiness on his part to obfuscate plain facts for the
unworthy purpose of escaping his just deserts. There is in his favor,
though, a presumption of good faith20 which keeps us from treating the
incongruity of his proffered excuse as an indication of mendacity.
Besides, in the light of his avowal that his only aim was "to settle the case
amicably among comrades in arms without going to trial,"21perhaps it is
not unreasonable to assume that what he really meant to say was that
he had intended the misrepresentation as a gambit to get the proposed
agreement on the table, as it were. But even if that had been so, it would
have been no justification for speaking falsely in court. There is nothing
in the duty of a lawyer to foster peace among disputants that, in any way,
makes it necessary under any circumstances for counsel to state as a
fact that which is not true. A lawyer's duty to the court to employ only
such means as are consistent with truth and honor22 forbids recourse to
such a tactic. Thus, even as we give Atty. Doronilla the benefit of the
doubt and accept as true his avowed objective of getting the parties to
settle the case amicably, we must call him to account for resorting to
falsehood as a means to that end.
Atty. Doronilla's offense is within the ambit of Section 27, Rule 138 of the
Rules of Court, which in part declares:
A member of the bar may be disbarred or suspended from his office as
attorney by the Supreme Court for any deceit x x x or for any violation of
the oath which he is required to take before admission to practice x x x.
The suspension referred to in the foregoing provision means only
suspension from the practice of law. For this reason, we disagree with
the IBP's recommendation for Atty. Doronilla's suspension from the
government military service. After all, the only purpose of this
administrative case is to determine Atty. Doronilla's liability as a member
of the legal profession, not his liability as a legal officer in the military
service. Thus, it would be improper for us to order, as a penalty for his
breach of legal ethics and the lawyer's oath, his suspension from
employment in the Judge Advocate General's Service. Of course,
suspension from employment as a military legal officer may well
follow as a consequence of his suspension from the practice of law but
that should not be reason for us to impose it as a penalty for his
professional misconduct. We would be going beyond the purpose of this
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proceeding were we to do so. Therefore, we shall treat the IBP's
recommendation as one for suspension from the practice of law.
At any rate, we are not inclined to adopt the IBP's recommendation on
the duration of Atty. Doronilla's suspension. We need to consider a few
circumstances that mitigate his liability somewhat. First, we give him
credit for exhibiting enough candor to admit, during the investigation, the
falsity of the statement he had made in Judge Daway's courtroom.
Second, the absence of material damage to complainant may also be
considered as a mitigating circumstance.23 And finally, since this is Atty.
Doronilla's first offense, he is entitled to some measure of forbearance.24
Nonetheless, his unrepentant attitude throughout the conduct of this
administrative case tells us that a mere slap on the wrist is definitely not
enough. Atty. Doronilla, it seems, needs time away from the practice of
law to recognize his error and to purge himself of the misbegotten notion
that an effort to compromise justifies the sacrifice of truthfulness in court.
WHEREFORE, Atty. Antonio G. Doronilla, Jr. is
hereby SUSPENDED from the practice of law for TWO MONTHS.He
is WARNED that a repetition of the same or similar misconduct shall be
dealt with more severely.
Let a copy of this Resolution be attached to his personal record and
copies furnished the Integrated Bar of the Philippines, the Office of the
Court Administrator, the Chief-of-Staff of the Armed Forces of the
Philippines and the Commanding General of the AFP Judge Advocate
General's Service.
SO ORDERED.
A.C. No. 3731 September 7, 2007
MANUEL S. SEBASTIAN, complainant,
vs.
ATTY. EMILY A. BAJAR, respondent.
DECISION
CARPIO, J.:
The Case
On 18 October 1991, Manuel S. Sebastian (complainant) filed a
disbarment complaint against Atty. Emily A. Bajar (respondent) for
"obstructing, disobeying, resisting, rebelling, and impeding final
decisions of Regional Trial Courts, the Court of Appeals and of the
Honorable Supreme Court, and also for submitting those final decisions
for the review and reversal of the DARAB, an administrative body, and
for contemptuous acts and dilatory tactics."
The Facts
Complainant alleged the following:
1. Respondent is a lawyer of the Bureau of Agrarian Legal Assistance
(BALA) of the Department of Agrarian Reform who represented
Fernando Tanlioco (Tanlioco) in numerous cases which raised the same
issues.1 Tanlioco is an agricultural lessee of a land owned by
complainants spouse and sister-in-law (landowners). The landowners
filed an Ejectment case against Tanlioco on the basis of a conversion
order of the land use from agricultural to residential. The Regional Trial
Court (RTC) rendered judgment ordering Tanliocos ejectment subject to
the payment of disturbance compensation.2 The RTCs judgment was
affirmed by the Court of Appeals3 and the Supreme Court.4
2. Respondent, as Tanliocos counsel, filed another case for Specific
Performance to produce the conversion order. The RTC dismissed the
complaint due to res judicata and lack of cause of action.5
3. Respondent filed a case for Maintenance of Possession with the
Department of Agrarian Reform Adjudication Board. The case raised the
same issues of conversion and disturbance compensation.6
4. Respondent has violated Rule 10.03 of the Code of Professional
Responsibility since she misused the rules of procedure through forum-
shopping to obstruct the administration of justice.7
On 18 November 1991, the Court issued a resolution requiring
respondent to comment on the complaint lodged against her.8
Page 150
After a second Motion for Extension of Time to Submit
Comment,9 respondent submitted her Comment alleging the following:
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
1. Complainant is not the real party-in-interest. He is also not authorized
to prosecute the disbarment suit.10
2. Respondent has fulfilled allegiance to the "Attorneys Oath" and
performed duties in accordance with Section 20 of Rule 138 of the
Revised Rules of Court.11
3. Respondents client, Tanlioco, merely availed of all legal remedies to
obtain benefits secured for him by law.12
On 10 March 1992, complainant filed his Reply. Complainant alleged that
respondent did not confront the issues of her disbarment squarely but
raised issues that were decided upon with finality by the courts.13
On 25 March 1992, the Court issued a Resolution requiring respondent
to file a Rejoinder within 10 days from notice.14
On 3 June 1992, complainant filed a Manifestation dated 2 June 1992
stating that respondent failed to comply with the 25 March 1992 Court
Resolution to file a Rejoinder.15
On 7 October 1992, the Court ordered respondent to show cause why
she should not be subjected to disciplinary action for failure to comply
with the Courts 25 March 1992 Resolution. The Court also required
respondent to Comment on the complainants 2 June 1992
Manifestation.16
On 3 February 1993, respondent filed a Manifestation alleging that she
had substantially complied with the Courts orders relative to her
defenses. She advised the Court that she had transferred to the Public
Attorneys Office and since she was no longer a "BALA lawyer," the
cases involved in this proceeding had become moot and academic.17
On 1 March 1993, the Court issued a Resolution stating that the
administrative case against respondent "has not been mooted and
nothing set out in her Manifestation excuses her failure to obey this
Courts Resolutions of 25 March 1992 and 7 October 1992."18 The Court
had also resolved to impose a fine of P500 or imprisonment of five days
and to require respondent to comply with the 25 March 1992 and 7
October 1992 Resolutions.19
On 24 August 1993, complainant filed a Manifestation stating that
respondent had not complied with the Courts orders.20
On 29 September 1993, the Court issued a Resolution ordering the
arrest of respondent for detention at the National Bureau of Investigation
(NBI) for five days. The Court reiterated that respondent should comply
with the 25 March 1992 and 7 October 1992 Resolutions.21
On 20 October 1993, the NBI arrested respondent. The NBI detained
respondent for five days and released her on 25 October 1993.22
On 10 November 1993, the Court issued a Resolution referring the case
to the Integrated Bar of the Philippines (IBP) for hearing and decision.23
On 11 November 1993, respondent filed a Rejoinder. Respondent
claimed that complainant had no legal personality to file this
case.24 Respondent also alleged that she was merely protecting the
interest of Tanlioco as she was sworn to do so in her oath of office.
Respondent contended that "she had comported herself as [an] officer
of the court, at the risk of being disciplined by the latter if only to impart
truth and justice."25
On 22 November 1995, Investigating Commissioner Plaridel C. Jose
(Investigating Commissioner Jose) submitted his report and
recommendation to the IBP. Investigating Commissioner Jose
enumerated respondents violations of the Code of Professional
Responsibility that rendered her unfit to continue the practice of law:
1. Respondent appealed a case for purposes of delay which amounted
to an obstruction of justice.26
2. Respondent abused her right of recourse to the courts. The duplication
or multiplication of suits should be avoided,27 and respondents acts were
tantamount to forum-shopping which is a reprehensible manipulation of
court processes and proceedings.28
3. Respondent uttered disrespectful language and shouted at everybody
during the hearing on 25 May 1995.29 The want of intention is not an
excuse for the disrespectful language used.
On 4 October 1996, the IBP transmitted to the Court a copy of IBP
Resolution No. XII-96-149 dated 30 March 1996. The IBP Board of
Governors adopted and approved Investigating Commissioner Joses
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recommendation that respondent be "suspended indefinitely from the
practice of law for Unethical Practices and attitude showing her
propensity and incorrigible character to violate the basic tenets and
requirements of the Code of Professional Responsibility rendering her
unfit to continue in the practice of law."30 Governor Angel R. Gonzales
recommended her "outright disbarment."31
In its 20 January 1997 Resolution, the Court noted the IBP Resolution
suspending respondent indefinitely.32
On 13 April 1999, the Court issued a Resolution directing the Office of
the Court Administrator (OCA) to circularize the resolution of the IBP
dated 30 March 1996 suspending respondent indefinitely from the
practice of law.33
On 7 June 1999, the OCA, through Court Administrator Alfredo L.
Benipayo, issued Circular No. 30-99 informing all courts that respondent
had been suspended indefinitely.
On 30 January 2003, respondent filed a Motion to Consider the Case
Closed and Terminated. Respondent apologized for her demeanor and
prayed that the suspension be lifted.34
On 16 June 2003, the Court issued a Resolution referring the case to the
IBP for report and recommendation.35
On 29 August 2003, Investigating Commissioner Demaree J.B. Raval
(Investigating Commissioner Raval) conducted a hearing. Respondent
claimed that she did not receive any notice of the OCAs Circular on her
indefinite suspension.36 Respondent alleged that the Court Resolution
which she received merely noted the IBPs Resolution on her indefinite
suspension.37 Respondent claimed that she only knew of the suspension
when she filed an application for a judicial position in Mandaluyong
City.38
In the hearing, respondent admitted that she continued to practice law
as a Prosecutor in Mandaluyong City despite her suspension because
she believed that a notation by the Court in the 20 January 1997
Resolution did not mean an implementation of the IBPs Resolution on
her indefinite suspension.39
Due to the absence of complainant and his counsel, another hearing was
held on 19 September 2003. Complainants counsel asserted that
respondent had been practicing law in the midst of her suspension and
this constituted a violation of the suspension order which she wanted to
be lifted.40 Investigating Commissioner Raval asked respondent to
present a valid ground to lift the suspension order.41 Respondent
requested that her detention for five days at the NBI be converted into a
five-year suspension, one year for every day of detention such that she
would have served five years of indefinite suspension.42
Investigating Commissioner Raval then directed the parties to file
simultaneously their Verified Position Papers.43
In his Position Paper and Comment, complainant posited that
respondents motion did not state valid grounds to convince the Court to
lift the suspension order. Complainant stated that by continuing to
practice law, "she is flaunting her defiance of the Supreme Court by
showing that she can hoodwink another branch of
government."44Complainant also prayed for respondents disbarment
due to the gravity of her offense.45
In respondents Position Paper, she reiterated that complainant is not the
real party-in-interest since the property that was litigated was owned by
complainants wife. She asserted that she never betrayed her clients
cause, she was never unfaithful to her oath, and it was complainant who
filed this case for harassment. Respondent prayed that the case be
considered closed and terminated due to lack of merit.46
Respondent also sent a letter to Investigating Commissioner Raval and
attached a copy of a Resolution in a Preliminary Investigation case which
she handled. Respondent contended that in this Preliminary
Investigation case, she recommended its dismissal because the
offended party was not the real party-in-interest.47
Respondent insisted that complainant did not have the personality to file
the disbarment complaint against her; hence, it should have been
Page 151
dismissed outright.48
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
After the parties filed their position papers, the IBP Board of Governors
issued Resolution No. XVI-2004-229 dated 16 April 2004. The IBP
adopted Investigating Commissioner Ravals Report and
Recommendation that respondent be disbarred for her "manifest flagrant
misconduct in disobeying the SC Order of her Indefinite Suspension."49
As culled from the records, the Court had merely noted IBP Resolution
No. XII-96-149 which recommended respondents indefinite suspension.
"The term noted means that the Court has merely taken cognizance of
the existence of an act or declaration, without exercising a judicious
deliberation or rendering a decision on the matter it does not imply
agreement or approval."50 Hence, the penalty of indefinite suspension
imposed by the IBP Board of Governors has not attained finality. Section
12 of Rule 139-B provides:
Section 12. Review and Decision by the Board of Governors.
xxx
(b) If the Board, by the vote of a majority of its total membership,
determines that the respondent should be suspended from the practice
of law or disbarred, it shall issue a resolution setting forth its findings and
recommendations which, together with the whole record of the case,
shall forthwith be transmitted to the Supreme Court for final action.
(Emphasis supplied)
Necessarily, the Court will now give its "final action" on this complaint.
The Ruling of the Court
After a careful review of the records, the Court finds the evidence on
record sufficient to support the IBPs findings. However, the Court
disagrees with the penalty imposed on respondent.
Administrative proceedings against lawyers are sui generis51 and they
belong to a class of their own.52 They are neither civil nor criminal actions
but rather investigations by the Court into the conduct of its
officer.53 They involve no private interest and afford no redress for private
grievance.54
A disciplinary action against a lawyer is intended to protect the
administration of justice from the misconduct of its officers. This Court
requires that its officers shall be competent, honorable, and reliable men
in whom the public may repose confidence.55 "Lawyers must at all times
faithfully perform their duties to society, to the bar, to the courts, and to
their clients. Their conduct must always reflect the values and norms of
the legal profession as embodied in the Code of Professional
Responsibility. On these considerations, the Court may disbar or
suspend lawyers for any professional or private misconduct showing
them to be wanting in moral character, honesty, probity, and good
demeanor or to be unworthy to continue as officers of the Court."56
Clear preponderant evidence is necessary to justify the imposition of the
penalty in disbarment or suspension proceedings.57
The evidence presented shows that respondent failed to comply with the
Courts lawful orders in two instances:
1. In the 25 March 1992 Court Resolution, respondent was required to
file a rejoinder within 10 days from notice. However, she only submitted
the rejoinder on 11 November 1993 after she was detained at the NBI
for five days for failure to heed the Courts order.
2. In the 7 October 1992 Court Resolution, respondent was required to
comment on complainants manifestation. She instead submitted a
manifestation on 3 February 1993 or almost four months thereafter. In
her manifestation, respondent alleged that she had substantially
complied with the Courts orders. However, the Court in its 1 March 1993
Resolution stated that nothing set out in respondents manifestation
excused her failure to obey the Courts Resolutions.
These acts constitute willful disobedience of the lawful orders of this
Court, which under Section 27, Rule 13858 of the Rules of Court is in
itself a sufficient cause for suspension or disbarment. Respondents
cavalier attitude in repeatedly ignoring the orders of the Supreme Court
constitutes utter disrespect to the judicial institution.59Respondents
conduct indicates a high degree of irresponsibility. A Courts Resolution
is "not to be construed as a mere request, nor should it be complied with
partially, inadequately, or selectively."60 Respondents obstinate refusal
to comply with the Courts orders "not only betrays a recalcitrant flaw in
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her character; it also underscores her disrespect of the Courts lawful
orders which is only too deserving of reproof."61
Lawyers are called upon to obey court orders and processes and
respondents deference is underscored by the fact that willful disregard
thereof will subject the lawyer not only to punishment for contempt but to
disciplinary sanctions as well. In fact, graver responsibility is imposed
upon a lawyer than any other to uphold the integrity of the courts and to
show respect to their processes.62
Respondents failure to comply with the Courts directive to file a
Rejoinder and to file a Comment also constitutes gross misconduct. The
Court defined gross misconduct as "any inexcusable, shameful, flagrant,
or unlawful conduct on the part of the person concerned in the
administration of justice which is prejudicial to the rights of the parties or
to the right determination of a cause." It is a "conduct that is generally
motivated by a premeditated, obstinate, or intentional purpose."63
In Bernal Jr. v. Fernandez,64 the Court held that failure to comply with
the Courts directive to comment on a letter-complaint constitutes gross
misconduct and insubordination, or disrespect. In Cuizon v.
Macalino,65 a lawyers failure to comply with the Courts Resolutions
requiring him to file his comment was one of the infractions that merited
his disbarment.
Furthermore, respondents defenses are untenable. Firstly, respondent
contends that complainant is not the real party-in-interest since the
property that was litigated was owned by complainants wife. The Court
is not persuaded with this defense.
The procedural requirement observed in ordinary civil proceedings that
only the real party-in-interest must initiate the suit does not apply in
disbarment cases. In fact, the person who called the attention of the court
to a lawyers misconduct "is in no sense a party, and generally has no
interest in the outcome."66 "A compromise or withdrawal of charges does
not terminate an administrative complaint against a lawyer."67
In Heck v. Santos,68 the Court held that "any interested person or the
court motu proprio may initiate disciplinary proceedings." The right to
institute disbarment proceedings is not confined to clients nor is it
necessary that the person complaining suffered injury from the alleged
wrongdoing. Disbarment proceedings are matters of public interest and
the only basis for the judgment is the proof or failure of proof of the
charges.69
Secondly, respondent avers that she merely availed of all the legal
remedies for her client. In Suzuki v. Tiamson,70 the Court enunciated that
"while lawyers owe their entire devotion to the interest of their clients and
zeal in the defense of their clients rights, they should not forget that they
are first and foremost, officers of the court, bound to exert every effort to
assist in the speedy and efficient administration of justice." Respondents
act of filing cases with identical issues in other venues despite the final
ruling which was affirmed by the Court of Appeals and the Supreme
Court is beyond the bounds of the law. "To permit lawyers to resort to
unscrupulous practices for the protection of the supposed rights of their
clients is to defeat one of the purposes of the state the administration
of justice."71
Respondent abused her right of recourse to the courts. Respondent,
acting as Tanliocos counsel, filed cases for Specific Performance and
Maintenance of Possession despite the finality of the decision in the
Ejectment case which involves the same issues. The Court held that "an
important factor in determining the existence of forum-shopping is the
vexation caused to the courts and the parties-litigants by the filing of
similar cases to claim substantially the same reliefs.72 Indeed, "while a
lawyer owes fidelity to the cause of his client, it should not be at the
expense of truth and administration of justice."73
Canon 19 of the Code of Professional Responsibility mandates lawyers
to represent their clients with zeal but within the bounds of the law. It is
evident from the records that respondent filed other cases to thwart the
execution of the final judgment in the Ejectment case. Clearly,
respondent violated the proscription in Canon 19.
Page 152
The penalty of suspension or disbarment is meted out in clear cases of
misconduct that seriously affect the standing and character of the lawyer
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
as an officer of the court. In this case, respondent has shown her great
propensity to disregard court orders. Respondents acts of wantonly
disobeying her duties as an officer of the court show an utter disrespect
for the Court and the legal profession. However, the Court will not disbar
a lawyer if it finds that a lesser penalty will suffice to accomplish the
desired end.
Respondents acts constitute gross misconduct and willful disobedience
of lawful orders of a superior court. Respondent also violated Canon 19
of the Code of Professional Responsibility. Her suspension is
consequently warranted.
WHEREFORE, respondent Atty. Emily A. Bajar is
hereby SUSPENDED from the practice of law for a period ofTHREE
YEARS effective from notice, with a STERN WARNING that a repetition
of the same or similar acts will be dealt with more severely.
Let copies of this Decision be furnished the Office of the Bar Confidant
to be appended to 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.
SO ORDERED.
[A.C. No. 5379. May 9, 2003]
WALTER T. YOUNG, complainant, vs. CEASAR G.
BATUEGAS, MIGUELITO NAZARENO V. LLANTINO and
FRANKLIN Q. SUSA, respondents.
RESOLUTION
YNARES-SANTIAGO, J.:
On December 29, 2000, Atty. Walter T. Young filed a Verified Affidavit-
Complaint for disbarment against Attys. Ceasar G. Batuegas, Miguelito
Nazareno V. Llantino and Franklin Q. Susa for allegedly committing
deliberate falsehood in court and violating the lawyers oath.[1]
Complainant is the private prosecutor in Criminal Case No. 00-187627
for Murder, entitled People of the Philippines versus Crisanto Arana, Jr.,
pending before the Regional Trial Court of Manila, Branch 27. On
December 13, 2000, respondents Batuegas and Llantino, as counsel for
accused, filed a Manifestation with Motion for Bail, alleging that
the accused has voluntarily surrendered to a person in authority. As
such, he is now under detention.[2] Upon personal verification with the
National Bureau of Investigation (NBI) where accused Arana allegedly
surrendered, complainant learned that he surrendered only on
December 14, 2000, as shown by the Certificate of Detention executed
by Atty. Rogelio M. Mamauag, Chief of the Security Management
Division of the NBI.
Respondent Susa, the Branch Clerk of Court of RTC of Manila, Branch
27, calendared the motion on December 15, 2000 despite the foregoing
irregularity and other formal defects, namely, the lack of notice of hearing
to the private complainant, violation of the three-day notice rule, and the
failure to attach the Certificate of Detention which was referred to in the
Motion as Annex 1.
Respondents filed their respective comments, declaring that on
December 13, 2000, upon learning that a warrant of arrest was issued
against their client, they filed the Manifestation with Motion for Bail with
the trial court. Then they immediately fetched the accused in Cavite and
brought him to the NBI to voluntarily surrender. However, due to heavy
traffic, they arrived at the NBI at 2:00 a.m. the next day; hence, the
certificate of detention indicated that the accused surrendered on
December 14, 2000. They argued that there was neither unethical
conduct nor falsehood in the subject pleading as their client has
voluntarily surrendered and was detained at the NBI. As regards the lack
of notice of hearing, they contend that complainant, as private
prosecutor, was not entitled to any notice. Nevertheless, they furnished
the State and City prosecutors copies of the motion with notice of hearing
thereof. Moreover, the hearing of a motion on shorter notice is allowed
under Rule 15, Sec. 4(2) of the Rules of Court.[3]
For his part, respondent Susa argues in his comment that he was no
longer in court when his co-respondents filed the Manifestation with
PINEDAPCGRNMAN
Motion for Bail. Ms. Teofila A. Pea, Clerk III, received the said Motion
and noticed that it was set for hearing on December 15, 2000 and the
Certificate of Detention was not attached. However, the presiding judge
instructed her to receive the Motion subject to the presentation of the
Certificate of Detention before the hearing. Thus, the inclusion of the
Motion in the courts calendar on December 15, 2000 was authorized by
the presiding judge and, thus, was done by respondent Susa in faithful
performance of his ministerial duty.
In a Resolution dated August 13, 2001,[4] the instant case was referred
to the Integrated Bar of the Philippines for investigation, report and
recommendation or decision.
On December 7, 2001, the Investigating Commissioner, Rebecca
Villanueva-Maala, submitted her report and recommendation as follows:
WHEREFORE, the foregoing premises considered, it is respectfully
recommended that Atty. Ceasar G. Batuegas and Atty. Miguelito
Nazareno V. Llantino be suspended from the practice of their profession
as a lawyer/member of the Bar for a period of six (6) months from receipt
hereof. The complaint against Atty. Franklin Q. Susa, upon the other
hand, is hereby recommended dismissed for lack of merit.[5]
The foregoing Report and Recommendation was adopted and approved
by the IBP-Commission on Bar Discipline in Resolution No. XV-2002-
400, to wit:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, the Report and Recommendation of the Investigating
Commissioner of the above-entitled case, herein made part of this
Resolution/Decision as Annex A; and, finding the recommendation fully
supported by the evidence on record and the applicable laws and rules,
and in view of respondents commission of deliberate falsehood, Atty.
Batuegas and Atty. Llantino are hereby SUSPENDED from the practice
of law for six (6) months. The complaint against Atty. Susa is hereby
DISMISSED for lack of merit.[6]
We agree with the findings and recommendations of the Investigating
Commissioner. Respondents Batuegas and Llantino are guilty of
deliberate falsehood.
A lawyer must be a disciple of truth.[7] He swore upon his admission to
the Bar that he will do no falsehood nor consent to the doing of any in
court and he shall conduct himself as a lawyer according to the best of
his knowledge and discretion with all good fidelity as well to the courts
as to his clients.[8] He should bear in mind that as an officer of the court
his high vocation is to correctly inform the court upon the law and the
facts of the case and to aid it in doing justice and arriving at correct
conclusion.[9] The courts, on the other hand, are entitled to expect only
complete honesty from lawyers appearing and pleading before
them.[10] While a lawyer has the solemn duty to defend his clients rights
and is expected to display the utmost zeal in defense of his clients cause,
his conduct must never be at the expense of truth.[11]
The Court may disbar or suspend a lawyer for misconduct, whether in
his professional or private capacity, which shows him to be wanting in
moral character, in honesty, probity, and good demeanor, thus proving
unworthy to continue as an officer of the court.[12]
Evidently, respondent lawyers fell short of the duties and responsibilities
expected from them as members of the bar. Anticipating that their Motion
for Bail will be denied by the court if it found that it had no jurisdiction
over the person of the accused, they craftily concealed the truth by
alleging that accused had voluntarily surrendered to a person in authority
and was under detention. Obviously, such artifice was a deliberate ruse
to mislead the court and thereby contribute to injustice. To knowingly
allege an untrue statement of fact in the pleading is a contemptuous
conduct that we strongly condemn. They violated their oath when they
resorted to deception.
Respondents contend that their allegation of the accuseds detention was
merely a statement of an ultimate fact which still had to be proved by
evidence at the hearing of the Motion.That they were able to show that
their client was already under the custody of the NBI at the hearing held
Page 153
on December 15, 2000 does not exonerate them. The fact remains that
Intelligentia et Scientia Semper Mea
LEGAL ETHICS PINEDAPCGRNMAN
the allegation that the accused was in the custody of the NBI on 4. alleging in one pleading that the clients were mere
December 13, 2000 was false. lessees and in another pleading that the same clients
In Comia vs. Antona, we held: were owners
It is of no moment that the accused eventually surrendered to the police 5. presenting falsified documents in court which he knows
authorities on the same date tentatively scheduled for the hearing of the to be false
application for bail. To our mind, such supervening event is of no bearing 6. filing false charges on groundless suits
and immaterial; it does not absolve respondent judge from administrative 7. using in pleadings the IBP number of another lawyer
liability considering that he should not have accorded recognition to the 8. unsolicited appearances
application for bail filed on behalf of persons who, at that point, were 9. use of fictitious residence certificate
devoid of personality to ask such specific affirmative relief from the 10. misquotation/misrepresentation
court.[13] 11. citing a repealed or amended provision
In this jurisdiction, whether bail is a matter of right or discretion, 12. asserting a fact not proved
reasonable notice of hearing is required to be given to the prosecutor or 13. verbatim reproductions down to the last word and
fiscal, or at least, he must be asked for his recommendation.[14] punctuation mark
In the case at bar, the prosecution was served with notice of hearing of 14. slight typo mistake: not sufficient to place him in
the motion for bail two days prior to the scheduled date. Although a contempt
motion may be heard on short notice, respondents failed to show any
good cause to justify the non-observance of the three-day notice ROC RULE 138 Section 20. Duties of attorneys. It is the duty of
rule. Verily, as lawyers, they are obliged to observe the rules of an attorney:
procedure and not to misuse them to defeat the ends of justice.[15] (d) To employ, for the purpose of maintaining the causes confided
Finally, we are in accord with the Investigating Commissioner that to him, such means only as are consistent with truth and honor,
respondent clerk of court should not be made administratively liable for and never seek to mislead the judge or any judicial officer by an
including the Motion in the calendar of the trial court, considering that it artifice or false statement of fact or law;
was authorized by the presiding judge. However, he is reminded that his
administrative functions, although not involving the discretion or
judgment of a judge, are vital to the prompt and sound administration of CANON 11 A LAWYER SHALL OBSERVE AND MAINTAIN THE
justice.[16] Thus, he should not hesitate to inform the judge if he should RESPECT DUE TO THE COURTS AND TO JUDICIAL OFFICERS AND
find any act or conduct on the part of lawyers which are contrary to the SHOULD INSIST ON SIMILAR CONDUCT BY
established rules of procedure. OTHERS.
WHEREFORE, in view of the foregoing, respondent Attys. Ceasar G.
Batuegas, Miguelito Nazareno V. Llantino are found guilty of committing Rule 11.01 A lawyer shall appear in court properly attired.
deliberate falsehood. Accordingly, they are SUSPENDED from the A lawyer may NOT wear outlandish or colorful clothing
practice of law for a period of six (6) months with a warning that a to court.
repetition of the same or similar act will be dealt with more severely. As an officer of the court and in order to maintain the
Let a copy of this Resolution be attached to the personal records of Attys. dignity and respectability of the legal profession, a
Ceasar G. Batuegas and Miguelito Nazareno V. Llantino in the Office of lawyer who appears in court must be properly attired.
the Bar Confidant and copies thereof be furnished the Integrated Bar of Consequently, the court can hold a lawyer IN CONTEMPT
the Philippines. of court if he does not appear in proper attire. Any
SO ORDERED. deviation from the commonly accepted norm of dressing
in court (barong or tie, not both) is enough to warrant a
Rule 10.02 A lawyer shall not knowingly misquote or misrepresent citing for contempt.
the contents of the paper, the language or the argument of
opposing counsel, or the text of a decision of authority, or Rule 11.02 A lawyer shall punctually appear at court hearings.
knowingly cite as law a provision already rendered inoperative by
repeal or amendment, or assert as a fact that which has not been Rule 11.03 A lawyer shall abstain from scandalous, offensive, or
approved. menacing language or behavior before the courts.
(missing case INSULAR LIFE EMPLOYEES VS INSULAR LIFE
ASSOCIATION) ATTY. BONIFACIO T. BARANDON, JR., A.C. No. 5768
Complainant,
Rule 10.03 A lawyer shall observe the rules of procedure and shall Present:
not misuse them to defeat the ends of justice. CARPIO, J., Chairperson,
Judge-lawyer relationship: based on independence and self- - versus - BRION,
respect. DEL CASTILLO,
Lawyers duty to the court: ABAD, and
1. respect and loyalty PEREZ, JJ.
2. fairness, truth and candor ATTY. EDWIN Z. FERRER, SR.,
3. no attempt to influence courts Respondent. Promulgated:
Cases of falsehood:
1. stating in the Deed of Sale that property is free from all March 26, 2010
liens and encumbrances when not so x --------------------------------------------------------------------------------------- x
2. encashing check payable to a deceased cousin by
signing the latters name on the check DECISION
Page 154

3. falsifying a power of attorney and using it in collecting

the money due to the principal ABAD, J.:

Intelligentia et Scientia Semper Mea

LEGAL ETHICS
This administrative case concerns a lawyer who is claimed to have
hurled invectives upon another lawyer and filed a baseless suit against
him.
The Facts and the Case
On January 11, 2001 complainant Atty. Bonifacio T. Barandon, Jr. filed
a complaint-affidavit[1] with the Integrated Bar of the Philippines
Commission on Bar Discipline (IBP-CBD) seeking the disbarment,
suspension from the practice of law, or imposition of appropriate
disciplinary action against respondent Atty. Edwin Z. Ferrer, Sr. for the
following offenses:
1. On November 22, 2000 Atty. Ferrer, as plaintiffs counsel in Civil Case
7040, filed a reply with opposition to motion to dismiss that contained
abusive, offensive, and improper language which insinuated that
Atty. Barandon presented a falsified document in court.
2. Atty. Ferrer filed a fabricated charge against Atty. Barandon in Civil
Case 7040 for alleged falsification of public document when the
document allegedly falsified was a notarized document executed on
February 23, 1994, at a date when Atty. Barandon was not yet a lawyer
nor was assigned in Camarines Norte. The latter was not even a
signatory to the document.
3. On December 19, 2000, at the courtroom of Municipal Trial Court
(MTC) Daet before the start of hearing, Atty. Ferrer, evidently drunk,
threatened
Atty.Barandon saying, Laban kung laban, patayan kung patayan, kasa
ma ang lahat ng pamilya. Wala na palang magaling na abogado sa Ca
marines Norte, ang abogadona rito ay mga taga-
Camarines Sur, umuwi na kayo sa Camarines Sur, hindi kayo taga-rito.
4. Atty. Ferrer made his accusation of falsification of public document
without bothering to check the copy with the Office of the Clerk of Court
and, with gross ignorance of the law, failed to consider that a notarized
document is presumed to be genuine and authentic until proven
otherwise.
5. The Court had warned Atty. Ferrer in his first disbarment case against
repeating his unethical act; yet he faces a disbarment charge for sexual
harassment of an office secretary of the IBP Chapter
in Camarines Norte; a related criminal case for acts of lasciviousness;
and criminal cases for libel and grave threats that Atty.Barandon filed
against him. In October 2000, Atty. Ferrer asked Atty. Barandon to
falsify the daily time record of his son who worked with the Commission
on Settlement of Land Problems, Department of Justice. When
Atty. Barandon declined, Atty. Ferrer repeatedly harassed him with
inflammatory language.
Atty. Ferrer raised the following defenses in his answer with motion to
dismiss:
1. Instead of having the alleged forged document submitted for
examination, Atty. Barandon filed charges of libel and grave threats
against him. These charges came about because Atty. Ferrers clients
filed a case for falsification of public document against Atty. Barandon.
2. The offended party in the falsification case, Imelda Palatolon,
vouchsafed that her thumbmark in the waiver document had been
falsified.
3. At the time Atty. Ferrer allegedly uttered the threatening remarks
against Atty. Barandon, the MTC Daet was already in session. It was
PINEDAPCGRNMAN
improbable that the court did not take steps to stop, admonish, or cite
Atty. Ferrer in direct contempt for his behavior.
4. Atty. Barandon presented no evidence in support of his allegations
that Atty. Ferrer was drunk on December 19, 2000 and that he degraded
the law profession. The latter had received various citations that speak
well of his character.
5. The cases of libel and grave threats that Atty. Barandon filed against
Atty. Ferrer were still pending. Their mere filing did not make the latter
guilty of the charges. Atty. Barandon was forum shopping when he filed
this disbarment case since it referred to the same libel and grave threats
subject of the criminal cases.
In his reply affidavit,[2] Atty. Barandon brought up a sixth ground for
disbarment. He alleged that on December 29, 2000 at about 1:30 p.m.,
while Atty. Ferrer was on board his sons taxi, it figured in a collision with
a tricycle, resulting in serious injuries to the tricycles passengers. [3] But
neither Atty. Ferrer nor any of his co-passengers helped the victims and,
during the police investigation, he denied knowing the taxi driver and
blamed the tricycle driver for being drunk. Atty. Ferrer also prevented an
eyewitness from reporting the accident to the authorities.[4]
Atty. Barandon claimed that the falsification case against him had
already been dismissed. He belittled the citations Atty. Ferrer allegedly
received. On the contrary, in its Resolution 00-1,[5] the IBP-
Camarines Norte Chapter opposed his application to serve as judge of
the MTC of Mercedes, Camarines Sur, on the ground that he did not
have the qualifications, integrity, intelligence, industry and character of a
trial judge and that he was facing a criminal charge for acts of
lasciviousness and a disbarment case filed by an employee of the same
IBP chapter.
On October 10, 2001 Investigating Commissioner Milagros V. San Juan
of the IBP-CBD submitted to this Court a Report, recommending the
suspension for two years of Atty.Ferrer. The Investigating Commissioner
found enough evidence on record to prove Atty. Ferrers violation of
Canons 8.01 and 7.03 of the Code of Professional Responsibility. He
attributed to Atty. Barandon, as counsel in Civil Case 7040, the
falsification of the plaintiffs affidavit despite the absence of evidence that
the document had in fact been falsified and that Atty. Barandon was a
party to it. The Investigating Commissioner also found that
Atty. Ferrer uttered the threatening remarks imputed to him in the
presence of other counsels, court personnel, and litigants before the start
of hearing.
On June 29, 2002 the IBP Board of Governors passed Resolution XV-
2002-225,[6] adopting and approving the Investigating Commissioners
recommendation but reduced the penalty of suspension to only one year.
Atty. Ferrer filed a motion for reconsideration but the Board denied it in
its Resolution[7] of October 19, 2002 on the ground that it had already
endorsed the matter to the Supreme Court. On February 5, 2003,
however, the Court referred back the case to the IBP for resolution of
Atty. Ferrers motion for reconsideration.[8] On May 22, 2008 the IBP
Board of Governors adopted and approved the Report and
Recommendation[9] of the Investigating Commissioner that denied
Atty. Ferrers motion for reconsideration.[10]
On February 17, 2009, Atty. Ferrer filed a Comment on Board of
Governors IBP Notice of Resolution No. XVIII-2008.[11] On August 12,
2009 the Court resolved to treat Atty.Ferrers comment as a petition for
review under Rule 139 of the Revised Rules of
Court. Atty. Barandon filed his comment,[12] reiterating his arguments
Page 155
before the IBP. Further, he presented certified copies of orders issued
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
by courts in Camarines Norte that warned Atty. Ferrer against appearing
in court drunk.[13]
The Issues Presented
The issues presented in this case are:
1. Whether or not the IBP Board of Governors and the IBP Investigating
Commissioner erred in finding respondent Atty. Ferrer guilty of the
charges against him; and
2. If in the affirmative, whether or not the penalty imposed on him is
justified.
The Courts Ruling
We have examined the records of this case and find no reason to
disagree with the findings and recommendation of the IBP Board of
Governors and the Investigating Commissioner.
The practice of law is a privilege given to lawyers who meet the high
standards of legal proficiency and morality. Any violation of these
standards exposes the lawyer to administrative liability.[14]
Canon 8 of the Code of Professional Responsibility commands all
lawyers to conduct themselves with courtesy, fairness and candor
towards their fellow lawyers and avoid harassing tactics against
opposing counsel. Specifically, in Rule 8.01, the Code provides:
Rule 8.01. A lawyer shall not, in his professional dealings, use language
which is abusive, offensive or otherwise improper.
Atty. Ferrers actions do not measure up to this Canon. The evidence
shows that he imputed to Atty. Barandon the falsification of
the Salaysay Affidavit of the plaintiff in Civil Case 7040. He made this
imputation with pure malice for he had no evidence that the affidavit had
been falsified and that Atty. Barandon authored the same.
Moreover, Atty. Ferrer could have aired his charge of falsification in a
proper forum and without using offensive and abusive language against
a fellow lawyer. To quote portions of what he said in his reply with motion
to dismiss:
1. That the answer is fraught with grave and culpable misrepresentation
and FALSIFICATION of documents, committed to mislead this
Honorable Court, but with concomitant grave responsibility of counsel for
Defendants, for distortion and serious misrepresentation to the court, for
presenting a grossly FALSIFIED document, in violation of his oath of
office as a government employee and as member of the Bar, for the
reason, that, Plaintiff, IMELDA PALATOLON, has never executed the
SALAYSAY AFFIDAVIT, wherein her fingerprint has been falsified, in
view whereof, hereby DENY the same including the affirmative defenses,
there being no knowledge or information to form a belief as to the truth
of the same, from pars. (1) to par. (15) which are all lies and mere
fabrications, sufficient ground for DISBARMENT of the one responsible
for said falsification and distortions.[15]
The Court has constantly reminded lawyers to use dignified language in
their pleadings despite the adversarial nature of our legal system.[16]
Atty. Ferrer had likewise violated Canon 7 of the Code of Professional
Responsibility which enjoins lawyers to uphold the dignity and integrity
of the legal profession at all times. Rule 7.03 of the Code provides:
PINEDAPCGRNMAN
Rule 7.03. A lawyer shall not engage in conduct that adversely reflect on
his fitness to practice law, nor shall he, whether in public or private life
behave in scandalous manner to the discredit of the legal profession.
Several disinterested persons confirmed Atty. Ferrers drunken
invectives at Atty. Barandon shortly before the start of a court
hearing. Atty. Ferrer did not present convincing evidence to support his
denial of this particular charge. He merely presented a certification from
the police that its blotter for the day did not report the threat he
supposedly made.Atty. Barandon presented, however, the police blotter
on a subsequent date that recorded his complaint against Atty. Ferrer.
Atty. Ferrer said, Laban kung laban, patayan kung patayan, kasama an
g lahat ng pamilya. Wala na palang magaling na abogado sa Camarine
s Norte, ang abogado na rito aymga taga-
Camarines Sur, umuwi na kayo sa Camarines Sur, hindi kayo taga-
rito. Evidently, he uttered these with intent to annoy, humiliate,
incriminate, and discredit Atty.Barandon in the presence of lawyers,
court personnel, and litigants waiting for the start of hearing in
court. These language is unbecoming a member of the legal
profession. The Court cannot countenance it.
Though a lawyers language may be forceful and emphatic, it should
always be dignified and respectful, befitting the dignity of the legal
profession. The use of intemperate language and unkind ascriptions has
no place in the dignity of judicial forum.[17] Atty. Ferrer ought to have
realized that this sort of public behavior can only bring down the legal
profession in the public estimation and erode public respect for it.
Whatever moral righteousness Atty. Ferrer had was negated by the way
he chose to express his indignation.
Contrary to Atty. Ferrers allegation, the Court finds that he has been
accorded due process. The essence of due process is to be found in the
reasonable opportunity to be heard and submit any evidence one may
have in support of ones defense.[18] So long as the parties are given the
opportunity to explain their side, the requirements of due process are
satisfactorily complied with.[19] Here, the IBP Investigating Commissioner
gave Atty. Ferrer all the opportunities to file countless pleadings and
refute all the allegations of Atty.Barandon.
All lawyers should take heed that they are licensed officers of the courts
who are mandated to maintain the dignity of the legal profession, hence
they must conduct themselves honorably and
fairly.[20] Atty. Ferrers display of improper attitude, arrogance,
misbehavior, and misconduct in the performance of his duties both as a
lawyer and officer of the court, before the public and the court, was a
patent transgression of the very ethics that lawyers are sworn to uphold.
ACCORDINGLY, the Court AFFIRMS the May 22, 2008 Resolution of
the IBP Board of Governors in CBD Case 01-809 and ORDERS the
suspension of Atty. Edwin Z.Ferrer, Sr. from the practice of law for one
year effective upon his receipt of this Decision.
Let a copy of this Decision be entered in Atty. Ferrers personal record as
an attorney with the Office of the Bar Confidant and a copy of the same
be served to the IBP and to the Office of the Court Administrator for
circulation to all the courts in the land.
SO ORDERED.
Adm. Case No. 7252 November 22, 2006
[CBD 05-1434]
JOHNNY NG, Complainant,
vs.
ATTY. BENJAMIN C. ALAR, Respondent.
RESOLUTION
Page 156
AUSTRIA-MARTINEZ, J.:
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Before the Court is Resolution No. XVII-2006-223 dated April 27, 2006
of the IBP Board of Governors, to wit:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, with modification, the Report and Recommendation of
the Investigating Commissioner of the above-entitled case, herein made
part of this Resolution as Annex "A"; and, finding the recommendation
fully supported by the evidence on record and the applicable laws and
rules, and considering Respondents propensity to resort to undeserved
language and disrespectful stance, Atty. Benjamin C. Alar is
hereby REPRIMANDED with a stern Warning that severe penalties will
be imposed in case similar misconduct is again committed. Likewise, the
counter complaint against Atty. Jose Raulito E. Paras and Atty. Elvin
Michael Cruz is hereby DISMISSED for lack of merit.
A verified complaint1 dated February 15, 2005 was filed by Johnny Ng
(complainant) against Atty. Benjamin C. Alar (respondent) before the
Integrated Bar of the Philippines (IBP), Commission on Bar Discipline
(CBD), for Disbarment.
Complainant alleges that he is one of the respondents in a labor case
with the National Labor Relations Commission (NLRC) docketed as
NLRC NCR CA No. 040273-04, while respondent is the counsel for
complainants. The Labor Arbiter (LA) dismissed the complaint. On
appeal, the NLRC rendered a Decision2affirming the decision of the LA.
Respondent filed a Motion for Reconsideration with Motion to Inhibit
(MRMI),3pertinent portions of which read:
x x x We cannot help suspecting that the decision under
consideration was merely copied from the pleadings of
respondents-appellees with very slight modifications. But we cannot
accept the suggestion, made by some knowledgeable individuals, that
the actual writer of the said decision is not at all connected with the
NLRC First Division.
x x x Why did the NLRC, First Division, uphold the Labor Arbiter in
maintaining that the separation pay should be only one half month
per year of service? Is jurisprudence on this not clear enough, or is
there another reason known only to them?
x x x If this is not grave abuse of discretion on the part of the NLRC,
First Division, it is ignominious ignorance of the law on the part of
the commissioners concerned.
The NLRC wants proof from the complainants that the fire actually
resulted in prosperity and not losses. xxxRespondents failed to prove
their claim of losses. And the Honorable Commissioners of the
First Division lost their ability to see these glaring facts.
x x x How much is the separation pay they should pay? One month per
year of service and all of it to the affected workers not to some
people in the NLRC in part.
x x x They should have taken judicial notice of this prevalent practices of
employers xxx. If the Honorable Commissioners, of the First Division
do not know this, they are indeed irrelevant to real life.
x x x we invite the Honorable Commissioners of the First Division
to see for themselves the evidence before them and not merely rely
on their reviewers and on the word of their ponente. If they do this
honestly they cannot help seeing the truth. Yes, honesty on the part
of the Commissioners concerned is what is lacking, not the
evidence. Unfair labor practice stares them in the face.
If labor arbiter Santos was cross-eyed in his findings of fact, the
Honorable Commissioners of the First Division are doubly so and
with malice thrown in. If the workers indeed committed an illegal strike,
how come their only "penalty" is removing their tent? It is obvious that
the Labor Arbiter and the Honorable Commissioners know deep in
their small hearts that there was no strike. This is the only reason for
the finding of "illegal strike". Without this finding, they have no basis to
remove the tent; they have to invent that basis.
x x x The union in its "Union Reply To The Position Paper Of
Management" and its Annexes has shown very clearly that the so called
strike is a myth. But Commissioner Dinopol opted to believe the
myth instead of the facts. He fixed his sights on the tent in front of
the wall and closed his eyes to the open wide passage way and gate
PINEDAPCGRNMAN
beside it. His eyes, not the ingress and egress of the premises, are
blocked by something so thick he cannot see through it. His
impaired vision cannot be trusted, no doubt about it.
Commissioner Dinopol has enshrined a novel rule on money
claims. Whereas, before, the established rule was, in cases of money
claims the employer had the burden of proof of payment. Now it is the
other way around. x x x For lack of a better name we should call this
new rule the "Special Dinopol Rule". But only retirable
commissioners are authorized to apply this rule and only when the
money claims involved are substantial. When they are meager the
ordinary rules apply.
x x x how Commissioner Dinopol is able to say that the pay slips proved
that the sixteen (16) claimants were already paid their service incentive
leave pay. This finding is copied verbatim from the cross-eyed
decision of Labor Arbiter Santos x x x .
The evidence already on record proving that the alleged blocking of
the ingress and egress is a myth seem invisible to the impaired
sight of Commissioner Dinopol. He needs more of it. x x x
Commissioner Dinopol by his decision under consideration (as
ponente [of] the decision that he signed and caused his co-
commissioners in the First Division to sign) has shown great and
irreparable impartiality, grave abuse of discretion and ignorance of
the law. He is a shame to the NLRC and should not be allowed to
have anything to do with the instant case any more. Commissioner
Go and Chairman Seeres, by negligence, are just as guilty as
Dinopol but, since the NLRC rules prohibit the inhibition of the entire
division, Chairman Seeres should remain in the instant case and
appoint two (2) other commissioners from another division to sit with him
and pass final judgment in the instant case.4 (Emphasis supplied)
In his Answer with Counter-Complaint dated April 6, 2005, respondent
Alar contends that the instant complaint only intends to harass him and
to influence the result of the cases between complainant and the workers
in the different fora where they are pending; that the Rules of Court/Code
of Professional Responsibility applies only suppletorily at the NLRC
when the NLRC Rules of Procedure has no provision on disciplinary
matters for litigants and lawyers appearing before it; that Rule X of the
NLRC Rules of Procedure provides for adequate sanctions against
misbehaving lawyers and litigants appearing in cases before it; that the
Rules of Court/Code of Professional Responsibility does not apply to
lawyers practicing at the NLRC, the latter not being a court; that LAs and
NLRC Commissioners are not judges nor justices and the Code of
Judicial Conduct similarly do not apply to them, not being part of the
judiciary; and that the labor lawyers who are honestly and
conscientiously practicing before the NLRC and get paid on a contingent
basis are entitled to some latitude of righteous anger when they get
cheated in their cases by reason of corruption and collusion by the
cheats from the other sectors who make their lives and the lives of their
constituents miserable, with impunity, unlike lawyers for the employers
who get paid, win or lose, and therefore have no reason to feel
aggrieved.5
Attached to the Counter-Complaint is the affidavit of union president
Marilyn Batan wherein it is alleged that Attys. Paras and Cruz violated
the Code of Professional Responsibility of lawyers in several instances,
such that while the labor case is pending before the NLRC, respondents
Paras and Cruz filed a new case against the laborers in the Office of the
City Engineer of Quezon City (QC) to demolish the tent of the workers,
thus splitting the jurisdiction between the NLRC and the City Engineer's
Office (CEO) of QC which violates Canon 12, Rules 12.02 and 13.03;
that although Ng signed the disbarment complaint against Alar,
respondents Parass and Cruzs office instigated the said complaint
which violates Canon 8; that Ng's company did not pay income tax for
the year 2000 allegedly for non-operation due to fire and respondents
consented to this act of the employer which violates Canon 19, Rule
19.02; and that when the case started, there were more or less 100
Page 157
complainants, but due to the acts of the employer and the respondents,
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
the number of complainants were reduced to almost half which violates
Canon 19, Rule 19-01, 19-02 and 19-03.6
In Answer to the Counter-Complaint dated April 14, 2005,7 respondents
Paras and Cruz alleged: At no time did they file multiple actions arising
from the same cause of action or brook interference in the normal course
of judicial proceedings; the reliefs sought before the CEO has nothing to
do with the case pending before the NLRC; the demolition of the
nuisance and illegal structures is a cause of action completely irrelevant
and unrelated to the labor cases of complainant; the CEO was requested
to investigate certain nuisance structures located outside the employer's
property, which consist of shanties, tents, banners and other
paraphernalia which hampered the free ingress to and egress out of the
employer's property and present clear and present hazards; the Office of
the City Engineer found the structures violative of pertinent DPWH and
MMDA ordinances; the pendency of a labor case with the NLRC is
completely irrelevant since the holding of a strike, legal or not, did not
validate or justify the construction of illegal nuisance structures; the CEO
proceeded to abate the nuisance structures pursuant to its power to
protect life, property and legal order; it was not their idea to file the
disbarment complaint against respondent Alar; they merely instructed
their client on how to go about filing the case, after having been served
a copy of the derogatory MRMI; Canon 8 should not be perceived as an
excuse for lawyers to turn their backs on malicious acts done by their
brother lawyers; the complaint failed to mention that the only reason the
number of complainants were reduced is because of the amicable
settlement they were able to reach with most of them; their engagement
for legal services is only for labor and litigation cases; at no time were
they consulted regarding the tax concerns of their client and therefore
were never privy to the financial records of the latter; at no time did they
give advice regarding their client's tax concerns; respondent Alar's
attempt at a disbarment case against them is unwarranted, unjustified
and obviously a mere retaliatory action on his part.
The case, docketed as CBD Case No. 05-1434, was assigned by the IBP
to Commissioner Patrick M. Velez for investigation, report and
recommendation. In his Report and Recommendation, the Investigating
Commissioner found respondent guilty of using improper and abusive
language and recommended that respondent be suspended for a period
of not less than three months with a stern warning that more severe
penalty will be imposed in case similar misconduct is again committed.
On the other hand, the Investigating Commissioner did not find any
actionable misconduct against Attys. Paras and Cruz and therefore
recommended that the Counter-Complaint against them be dismissed
for lack of merit.
Acting on the Report and Recommendation, the IBP Board of Governors
issued the Resolution hereinbefore quoted. While the Court agrees with
the findings of the IBP, it does not agree that respondent Alar deserves
only a reprimand.
The Code of Professional Responsibility mandates:
CANON 8 A lawyer shall conduct himself with courtesy, fairness and
candor toward his professional colleagues, and shall avoid harassing
tactics against opposing counsel.
Rule 8.01 A lawyer shall not, in his professional dealings, use
language which is abusive, offensive or otherwise improper.
CANON 11 A lawyer shall observe and maintain the respect due to the
courts and to judicial officers and should insist on similar conduct by
others.
Rule 11.03 A lawyer shall abstain from scandalous, offensive or
menacing language or behavior before the Courts.
Rule 11.04 A lawyer shall not attribute to a Judge motives not
supported by the record or have no materiality to the case.
The MRMI contains insults and diatribes against the NLRC, attacking
both its moral and intellectual integrity, replete with implied accusations
of partiality, impropriety and lack of diligence. Respondent used improper
and offensive language in his pleadings that does not admit any
justification.
In Lacurom v. Jacoba,8 the Court ratiocinated as follows:
PINEDAPCGRNMAN
Well-recognized is the right of a lawyer, both as an officer of the court
and as a citizen, to criticize in properly respectful terms and through
legitimate channels the acts of courts and judges. However, even the
most hardened judge would be scarred by the scurrilous attack made by
the 30 July 2001 motion on Judge Lacurom's Resolution. On its face, the
Resolution presented the facts correctly and decided the case according
to supporting law and jurisprudence. Though a lawyer's language may
be forceful and emphatic, it should always be dignified and respectful,
befitting the dignity of the legal profession. The use of unnecessary
language is proscribed if we are to promote high esteem in the courts
and trust in judicial administration.
In Uy v. Depasucat,9 the Court held that a lawyer shall abstain from
scandalous, offensive or menacing language or behavior before the
Courts.
It must be remembered that the language vehicle does not run short of
expressions which are emphatic but respectful, convincing but not
derogatory, illuminating but not offensive.10 A lawyer's language should
be forceful but dignified, emphatic but respectful as befitting an advocate
and in keeping with the dignity of the legal profession.11 Submitting
pleadings containing countless insults and diatribes against the NLRC
and attacking both its moral and intellectual integrity, hardly measures to
the sobriety of speech demanded of a lawyer.
Respondent's assertion that the NLRC not being a court, its
commissioners, not being judges or justices and therefore not part of the
judiciary; and that consequently, the Code of Judicial Conduct does not
apply to them, is unavailing. In Lubiano v. Gordolla,12 the Court held that
respondent became unmindful of the fact that in addressing the NLRC,
he nonetheless remained a member of the Bar, an oath-bound servant
of the law, whose first duty is not to his client but to the administration of
justice and whose conduct ought to be and must be scrupulously
observant of law and ethics.13
Respondents argument that labor practitioners are entitled to some
latitude of righteous anger is unavailing. It does not deter the Court from
exercising its supervisory authority over lawyers who misbehave or fail
to live up to that standard expected of them as members of the Bar.14
The Court held in Rheem of the Philippines v. Ferrer,15 thus:
2. What we have before us is not without precedent. Time and again, this
Court has admonished and punished, in varying degrees, members of
the Bar for statements, disrespectful or irreverent, acrimonious or
defamatory, of this Court or the lower courts. Resort by an attorney in
a motion for reconsideration to words which may drag this Court down
into disrepute, is frowned upon as "neither justified nor in the least
necessary, because in order to call the attention of the court in a special
way to the essential points relied upon in his argument and to emphasize
the force thereof, the many reasons stated in the motion" are "sufficient,"
and such words "superfluous." It is in this context that we must say that
just because Atty. Armonio "thought best to focus the attention" of this
Court "to the issue in the case" does not give him unbridled license in
language. To be sure, lawyers may come up with various methods,
perhaps much more effective, in calling the Courts attention to the issues
involved. The language vehicle does not run short of expressions,
emphatic but respectful, convincing but not derogatory, illuminating but
not offensive.
To be proscribed then is the use of unnecessary language which
jeopardizes high esteem in courts, creates or promotes distrust in judicial
administration, or which could have the effect of "harboring and
encouraging discontent which, in many cases, is the source of disorder,
thus undermining the foundation upon which rests that bulwark called
judicial power to which those who are aggrieved turn for protection and
relief." Stability of judicial institutions suggests that the Bar stand firm on
this precept.
The language here in question, respondents aver, "was the result of
overenthusiasm." It is but to repeat an old idea when we say that
enthusiasm, or even excess of it, is not really bad. In fact, the one or the
Page 158
other is no less a virtue, if channeled in the right direction. However, it
Intelligentia et Scientia Semper Mea
LEGAL ETHICS PINEDAPCGRNMAN
must be circumscribed within the bounds of propriety and with due regard All told, we do not find anything actionable misconduct against Attorneys
for the proper place of courts in our system of government.16 Paras and Cruz; hence the dismissal of the counter-complaint against
Respondent has clearly violated Canons 8 and 11 of the Code of them is proper for absolute lack of merit.17
Professional Responsibility. His actions erode the publics perception of ACCORDINGLY, we find respondent Atty. Benjamin C. Alar
the legal profession. GUILTY of violation of Canons 8 and 11 of the Code of Professional
However, the penalty of reprimand with stern warning imposed by the Responsibility. He is imposed a fine of P5,000.00 with STERN
IBP Board of Governors is not proportionate to respondents violation of WARNING that a repetition of the same or similar act in the future will be
the Canons of the Code of Professional Responsibility. Thus, he dealt with more severely.
deserves a stiffer penalty of fine in the amount of P5,000.00. The Counter-Complaint against Atty. Jose Raulito E. Paras and Atty.
Anent the Counter-Complaint filed against Attys. Paras and Cruz, the Elvin Michael Cruz is DISMISSED for lack of merit.
Court finds no reason to disturb the following findings and SO ORDERED.
recommendation of the Investigating Commissioner, as approved by the
IBP Board of Governors, to wit: G.R. No. 71169 August 30, 1989
The Counter-complainant Batan failed to submit any position paper to JOSE D. SANGALANG and LUTGARDA D. SANGALANG,
substantiate its claims despite sufficient opportunity to do so.1wphi1 petitioners, FELIX C. GASTON and DOLORES R. GASTON, JOSE V.
At any rate, it must be noted that the alleged case with the Office of the BRIONES and ALICIA R. BRIONES, and BEL-AIR VILLAGE
City Engineer really partakes of a different cause of action, which has ASSOCIATION, INC.,intervenors-petitioners,
nothing to do with the NLRC case. The decision was made by the city vs.
engineer. Respondents remedy should be to question that decision, not INTERMEDIATE APPELLATE COURT and AYALA
bring it to this Commission which has no jurisdiction over it. We can not CORPORATION, respondents.
substitute our judgment for the proper courts who should determine the G.R. No. 74376 August 30, 1989
propriety or sagacity of the city engineers action. BEL-AIR VILLAGE ASSOCIATION, INC., petitioner,
Furthermore, parties are not prohibited from availing themselves of vs.
remedies available in law provided; these acts do not exceed the bounds THE INTERMEDIATE APPELLATE COURT, ROSARIO DE JESUS
of decency. In supporting the action against respondents conduct, no TENORIO, and CECILIA GONZALEZ,respondents.
such abuse may be gleaned. Indeed, it is the attorneys duty as an officer G.R. No. 76394 August 30, 1989
of the court to defend a judge from unfounded criticism or groundless BEL-AIR VILLAGE ASSOCIATION, INC., petitioner,
personal attack. This requires of him not only to refrain from subjecting vs.
the judge to wild and groundless accusation but also to discourage other THE COURT OF APPEAL and EDUARDO and BUENA
people from so doing and to come to his defense when he is so ROMUALDEZ respondents.
subjected. By the very nature of his position a judge lacks the power, G.R. No. 78182 August 30, 1989
outside of his court, to defend himself against unfounded criticism and BEL-AIR VILLAGE ASSOCIATION, INC., petitioner,
clamor and it is the attorney, and no other, who can better or more vs.
appropriately support the judiciary and the incumbents of the judicial COURT OF APPEALS, DOLORES FILLEY and J. ROMERO &
positions. (Agpalo, p. 143 citing People v. Carillo, 77 Phil. 572 ASSOCIATES, respondents.
(1946); Surigao Mineral Reservation Board v. Cloribel, 31 SCRA 1 G.R. No. 82281 August 30, 1989
(1970); see Cabansag v. Fernandez, 102 Phil. 152 (1957) Whether the BEL-AIR VILLAGE ASSOCIATION, INC., petitioner,
disbarment complaint was filed by Ng or by his lawyers is therefore not vs.
of great import, what is more apropos would be the contents of the COURT OF APPEALS, VIOLETA MONCAL, and MAJAL
complaint and whether the same is sufficient to consider disciplinary DEVELOPMENT CORPORATION, respondents.
sanctions. RESOLUTION
Likewise, the tax case is a different matter altogether. Since the
respondent lawyers have already stated that they were not engaged as SARMIENTO, J.:
counsels to take care of their clients tax problems, then they cannot be The incident before the Court refers to charges for contempt against Atty.
held accountable for the same. If any wrongdoing has been committed J. Cezar Sangco, counsel for the petitioners Spouses Jose and Lutgarda
by complainant Ng, he should answer for that and those lawyers who Sangalang. (G.R. No. 71169.)
were responsible for such acts be held liable jointly. There is no showing On February 2, 1989, the Court issued a Resolution, requiring, among
[that] attorneys Paras and Cruz were responsible for that tax other things, Atty. Sangco to show cause why he should not be punished
fiasco.1wphi1 for contempt "for using intemperate and accusatory language." 1 On
Finally, while it may be true that Batans group has been greatly March 2, 1989, Atty. Sangco filed an explanation.
diminished from about 100 claimants to less than half the number is not The Court finds Atty. Sangco's remarks in his motion for reconsideration,
by itself an actionable misconduct. Lawyers are duty bound to foster reproduced as follows:
amicable settlement of cases; litigation and adversarial proceedings ...
while a necessary part of the practice is not encouraged, because it will This Decision of this Court in the above-entitled case reads more like a
save expenses and help unclogged [sic] the dockets. If the compromise Brief for Ayala ... 2
is fair then there is no reason to prevent the same. There is nothing in ... [t]he Court not only put to serious question its own integrity and
the counter-complaint which shows that the compromise agreement and competence but also jeopardized its own campaign against graft and
waivers executed appear to be unfair, hence no reason to hold lawyers corruption undeniably pervading the judiciary ... 3
liable for the same. Besides, a "compromise is as often the better part of ...
justice as prudence the part of valor and a lawyer who encourages The blatant disregard of controlling, documented and admitted facts not
compromise is no less the clients champion in settlement out of court put in issue, such as those summarily ignored in this case; the
than he is the clients champion in the battle in court." (Curtis, The extraordinary efforts exerted to justify such arbitrariness and the very
Advocate: Voices in Court, 5 (1958); cited in Agpalos Legal Ethics, p. strained and unwarranted conclusions drawn therefrom, are unparalleled
86, 1980 ed.) What is therefore respondent Alar[]s beef with the in the history of this Court ... 4
Page 159

execution of these waivers if these were executed freely by his clients? ...

Intelligentia et Scientia Semper Mea

LEGAL ETHICS
... [T]o ignore the fact that Jupiter Street was originally constructed for
the exclusive benefit of the residents of Bel- Air Village, or rule that
respondent Court's admission of said fact is "inaccurate," as Ayala's
Counsel himself would like to do but did not even contend, is a
manifestation of this Court's unusual partiality to Ayala and puts to
serious question its integrity on that account. 5
...
[i]t is submitted that this ruling is the most serious reflection on the Court's
competence and integrity and exemplifies its manifest partiality towards
Ayala. It is a blatant disregard of documented and incontrovertible and
uncontroverted factual findings of the trial court fully supported by the
records and the true significance of those facts which both the
respondent court and this Court did not bother to read and consequently
did not consider and discuss, least of all in the manner it did with respect
to those in which it arrived at conclusions favorable to Ayala. 6
To totally disregard Ayala's written letter of application for special
membership in BAVA which clearly state that such membership is
necessary because it is a new development in their relationship with
respect to its intention to give its commercial lot buyers an equal right to
the use of Jupiter Street without giving any reason therefor, smacks of
judicial arrogance ... 7
...
... [A]re all these unusual exercise of such arbitrariness above suspicion?
Will the current campaign of this Court against graft and corruption in the
judiciary be enhanced by such broad discretionary power of courts? 8
disparaging, intemperate, and uncalled for. His suggestions that the
Court might have been guilty of graft and corruption in acting on these
cases are not only unbecoming, but comes, as well, as an open assault
upon the Court's honor and integrity. In rendering its judgment, the Court
yielded to the records before it, and to the records alone, and not to
outside influences, much less, the influence of any of the parties. Atty.
Sangco, as a former judge of an inferior court, should know better that in
any litigation, one party prevails, but his success will not justify
indictments of bribery by the other party. He should be aware that
because of his accusations, he has done an enormous disservice to the
integrity of the highest tribunal and to the stability of the administration of
justice in general.
As a former judge, Atty. Sangco also has to be aware that we are not
bound by the findings of the trial court (in which his clients
prevailed).lwph1.t But if we did not agree with the findings of the RESOLUTION
court a quo, it does not follow that we had acted arbitrarily because,
precisely, it is the office of an appeal to review the findings of the inferior
court.
To be sure, Atty. Sangco is entitled to his opinion, but not to a license to
insult the Court with derogatory statements and recourses to argumenta
ad hominem. In that event, it is the Court's duty "to act to preserve the
honor and dignity ... and to safeguard the morals and ethics of the legal
profession." 9
We are not satisfied with his explanation that he was merely defending
the interests of his clients. As we held inLaureta, a lawyer's "first duty is
not to his client but to the administration of justice; to that end, his client's
success is wholly subordinate; and his conduct ought to and must always
be scrupulously observant of law and ethics." 10And while a lawyer must
advocate his client's cause in utmost earnest and with the maximum skill
he can marshal, he is not at liberty to resort to arrogance, intimidation,
and innuendo.
That "[t]he questions propounded were not meant or intended to accuse
but to ... challenge the thinking in the Decision, 11 comes as an eleventh-
hour effort to cleanse what is in fact and plainly, an unfounded
accusation. Certainly, it is the prerogative of an unsuccessful party to ask
for reconsideration, but as we held in Laureta, litigants should not "'think
that they will win a hearing by the sheer multiplication of words' ". 12 As
we indicated (see Decision denying the motions for reconsideration in
G.R. Nos. 71169, 74376, 76394, 78182, and 82281, and deciding G.R.
No. 60727, dated August 25, 1989), the movants have raised no new
PINEDAPCGRNMAN
arguments to warrant reconsideration and they can not veil that fact with
inflammatory language.
Atty. Sangco himself admits that "[a]s a judge I have learned to live with
and accept with grace criticisms of my decisions". 13 Apparently, he does
not practice what he preaches. Of course, the Court is not unreceptive
to comment and critique of its decisions, but provided they are fair and
dignified. Atty. Sangco has transcended the limits of fair comment for
which he deserves this Court's rebuke.
In our "show-cause" Resolution, we sought to hold Atty. Sangco in
contempt, specifically, for resort to insulting language amounting to
disrespect toward the Court within the meaning of Section 1, of Rule 71,
of the Rules of Court. Clearly, however, his act also constitutes
malpractice as the term is defined by Canon 11 of the Code of
Professional Responsibility, as follows:
CANON 11-A LAWYER SHALL OBSERVE AND MAINTAIN THE
RESPECT DUE TO THE COURTS AND TO JUDICIAL OFFICERS AND
SHOULD INSIST ON SIMILAR CONDUCT BY OTHERS.
Rule 11.01...
Rule 11.02...
Rule 11.03-A lawyer shall abstain from scandalous, offensive or
menacing language or behavior before the Courts.
Rule 11.04-A lawyer should not attribute to a Judge motives not
supported by the record or have no materiality to the case.
Rule 11.05...
Thus, aside from contempt, Atty. Sangco faces punishment for
professional misconduct or malpractice.
WHEREFORE Atty. J. Cezar Sangco is (1) SUSPENDED from the
practice of law for three (3) months effective from receipt hereof, and (2)
ORDERED to pay a fine of P 500.00 payable from receipt hereof. Let a
copy of this Resolution be entered in his record.
IT IS SO ORDERED.
G.R. No. L-27654 February 18, 1970
IN THE MATTER OF PROCEEDINGS FOR DISCIPLINARY ACTION
AGAINST ATTY. VICENTE RAUL ALMACEN In L-27654, ANTONIO
H. CALERO,
vs.
VIRGINIA Y. YAPTINCHAY.
CASTRO, J.:
Before us is Atty. Vicente Raul Almacen's "Petition to Surrender Lawyer's
Certificate of Title," filed on September 25, 1967, in protest against what
he therein asserts is "a great injustice committed against his client by this
Supreme Court." He indicts this Court, in his own phrase, as a tribunal
"peopled by men who are calloused to our pleas for justice, who ignore
without reasons their own applicable decisions and commit culpable
violations of the Constitution with impunity." His client's he continues,
who was deeply aggrieved by this Court's "unjust judgment," has
become "one of the sacrificial victims before the altar of hypocrisy." In
the same breath that he alludes to the classic symbol of justice, he
ridicules the members of this Court, saying "that justice as administered
by the present members of the Supreme Court is not only blind, but also
deaf and dumb." He then vows to argue the cause of his client "in the
people's forum," so that "the people may know of the silent injustice's
committed by this Court," and that "whatever mistakes, wrongs and
injustices that were committed must never be repeated." He ends his
petition with a prayer that
... a resolution issue ordering the Clerk of Court to receive the certificate
of the undersigned attorney and counsellor-at-law IN TRUST with
reservation that at any time in the future and in the event we regain our
faith and confidence, we may retrieve our title to assume the practice of
the noblest profession.
Page 160
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
He reiterated and disclosed to the press the contents of the
aforementioned petition. Thus, on September 26, 1967, the Manila
Times published statements attributed to him, as follows:
Vicente Raul Almacen, in an unprecedented petition, said he did it to
expose the tribunal's"unconstitutional and obnoxious" practice of
arbitrarily denying petitions or appeals without any reason.
Because of the tribunal's "short-cut justice," Almacen deplored, his client
was condemned to pay P120,000, without knowing why he lost the case.
xxx xxx xxx
There is no use continuing his law practice, Almacen said in this
petition, "where our Supreme Court is composed of men who are
calloused to our pleas for justice, who ignore without reason their own
applicable decisions and commit culpable violations of the Constitution
with impunity.
xxx xxx xxx
He expressed the hope that by divesting himself of his title by which he
earns his living, the present members of the Supreme Court "will become
responsive to all cases brought to its attention without discrimination, and
will purge itself of those unconstitutional and obnoxious "lack of merit" or
"denied resolutions. (Emphasis supplied)
Atty. Almacen's statement that
... our own Supreme Court is composed of men who are calloused to our
pleas of [sic] justice, who ignore their own applicable decisions and
commit culpable violations of the Constitution with impunity
was quoted by columnist Vicente Albano Pacis in the issue of the Manila
Chronicle of September 28, 1967. In connection therewith, Pacis
commented that Atty. Almacen had "accused the high tribunal of
offenses so serious that the Court must clear itself," and that "his charge
is one of the constitutional bases for impeachment."
The genesis of this unfortunate incident was a civil case entitled Virginia
Y. Yaptinchay vs. Antonio H. Calero,1 in which Atty. Almacen was
counsel for the defendant. The trial court, after due hearing, rendered
judgment against his client. On June 15, 1966 Atty. Almacen received a
copy of the decision. Twenty days later, or on July 5, 1966, he moved for
its reconsideration. He served on the adverse counsel a copy of the
motion, but did not notify the latter of the time and place of hearing on
said motion. Meanwhile, on July 18, 1966, the plaintiff moved for
execution of the judgment. For "lack of proof of service," the trial court
denied both motions. To prove that he did serve on the adverse party a
copy of his first motion for reconsideration, Atty. Almacen filed on August
17, 1966 a second motion for reconsideration to which he attached the
required registry return card. This second motion for reconsideration,
however, was ordered withdrawn by the trial court on August 30, 1966,
upon verbal motion of Atty. Almacen himself, who, earlier, that is, on
August 22, 1966, had already perfected the appeal. Because the plaintiff
interposed no objection to the record on appeal and appeal bond, the
trial court elevated the case to the Court of Appeals.
But the Court of Appeals, on the authority of this Court's decision
in Manila Surety & Fidelity Co., Inc. vs. Batu Construction & Co., L-
16636, June 24, 1965, dismissed the appeal, in the following words:
Upon consideration of the motion dated March 27, 1967, filed by plaintiff-
appellee praying that the appeal be dismissed, and of the opposition
thereto filed by defendant-appellant; the Court RESOLVED TO
DISMISS, as it hereby dismisses, the appeal, for the reason that the
motion for reconsideration dated July 5, 1966 (pp. 90-113, printed record
on appeal) does not contain a notice of time and place of hearing thereof
and is, therefore, a useless piece of paper (Manila Surety & Fidelity Co.,
Inc. vs. Batu Construction & Co., G.R. No. L-16636, June 24, 1965),
which did not interrupt the running of the period to appeal, and,
consequently, the appeal was perfected out of time.
Atty. Almacen moved to reconsider this resolution, urging that Manila
Surety & Fidelity Co. is not decisive. At the same time he filed a pleading
entitled "Latest decision of the Supreme Court in Support of Motion for
Reconsideration," citing Republic of the Philippines vs. Gregorio A.
Venturanza, L-20417, decided by this Court on May 30, 1966, as the
PINEDAPCGRNMAN
applicable case. Again, the Court of Appeals denied the motion for
reconsideration, thus:
Before this Court for resolution are the motion dated May 9, 1967 and
the supplement thereto of the same date filed by defendant- appellant,
praying for reconsideration of the resolution of May 8, 1967, dismissing
the appeal.
Appellant contends that there are some important distinctions between
this case and that of Manila Surety and Fidelity Co., Inc. vs. Batu
Construction & Co., G.R. No. L- 16636, June 24, 1965, relied upon by
this Court in its resolution of May 8, 1967. Appellant further states that in
the latest case,Republic vs. Venturanza, L-20417, May 30, 1966,
decided by the Supreme Court concerning the question raised by
appellant's motion, the ruling is contrary to the doctrine laid down in the
Manila Surety & Fidelity Co., Inc. case.
There is no substantial distinction between this case and that of Manila
Surety & Fidelity Co.
In the case of Republic vs. Venturanza, the resolution denying the
motion to dismiss the appeal, based on grounds similar to those raised
herein was issued on November 26, 1962, which was much earlier than
the date of promulgation of the decision in the Manila Surety Case, which
was June 24, 1965. Further, the resolution in the Venturanza case was
interlocutory and the Supreme Court issued it "without prejudice to
appellee's restoring the point in the brief." In the main decision in said
case (Rep. vs. Venturanza the Supreme Court passed upon the issue
sub silencio presumably because of its prior decisions contrary to the
resolution of November 26, 1962, one of which is that in the Manila
Surety and Fidelity case. Therefore Republic vs. Venturanza is no
authority on the matter in issue.
Atty. Almacen then appealed to this Court by certiorari. We refused to
take the case, and by minute resolution denied the appeal. Denied
shortly thereafter was his motion for reconsideration as well as his
petition for leave to file a second motion for reconsideration and for
extension of time. Entry of judgment was made on September 8, 1967.
Hence, the second motion for reconsideration filed by him after the Said
date was ordered expunged from the records.
It was at this juncture that Atty. Almacen gave vent to his disappointment
by filing his "Petition to Surrender Lawyer's Certificate of Title," already
adverted to a pleading that is interspersed from beginning to end with
the insolent contemptuous, grossly disrespectful and derogatory remarks
hereinbefore reproduced, against this Court as well as its individual
members, a behavior that is as unprecedented as it is unprofessional.
Nonetheless we decided by resolution dated September 28, 1967 to
withhold action on his petition until he shall have actually surrendered his
certificate. Patiently, we waited for him to make good his proffer. No word
came from him. So he was reminded to turn over his certificate, which
he had earlier vociferously offered to surrender, so that this Court could
act on his petition. To said reminder he manifested "that he has no
pending petition in connection with Case G.R. No. L-27654, Calero vs.
Yaptinchay, said case is now final and executory;" that this Court's
September 28, 1967 resolution did not require him to do either a positive
or negative act; and that since his offer was not accepted, he "chose to
pursue the negative act."
In the exercise of its inherent power to discipline a member of the bar for
contumely and gross misconduct, this Court on November 17, 1967
resolved to require Atty. Almacen to show cause "why no disciplinary
action should be taken against him." Denying the charges contained in
the November 17 resolution, he asked for permission "to give reasons
and cause why no disciplinary action should be taken against him ... in
an open and public hearing." This Court resolved (on December 7) "to
require Atty. Almacen to state, within five days from notice hereof, his
reasons for such request, otherwise, oral argument shall be deemed
waived and incident submitted for decision." To this resolution he
manifested that since this Court is "the complainant, prosecutor and
Judge," he preferred to be heard and to answer questions "in person and
Page 161
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
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
"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, compatible with his lawyer's oath that he will do no falsehood, nor
consent to the doing of any in court. But he vigorously DENY under oath
that the underscored statements contained in the CHARGE are insolent,
contemptuous, grossly disrespectful and derogatory to the individual
members of the Court; that they tend to bring the entire Court, without
justification, into disrepute; and constitute conduct unbecoming of a
member of the noble profession of law.
xxx xxx xxx
Respondent stands four-square that his statement is borne by TRUTH
and has been asserted with NO MALICE BEFORE AND AFTER
THOUGHT but mainly motivated with the highest interest of justice that
in the particular case of our client, the members have shown callousness
to our various pleas for JUSTICE, our pleadings will bear us on this
matter, ...
xxx xxx xxx
To all these beggings, supplications, words of humility, appeals for
charity, generosity, fairness, understanding, sympathy and above all in
the highest interest of JUSTICE, what did we get from this COURT?
One word, DENIED, with all its hardiness and insensibility. That was the
unfeeling of the Court towards our pleas and prayers, in simple word, it
is plain callousness towards our particular case.
xxx xxx xxx
Now that your respondent has the guts to tell the members of the Court
that notwithstanding the violation of the Constitution, you remained
unpunished, this Court in the reverse order of natural things, is now in
the attempt to inflict punishment on your respondent for acts he said in
good faith.
Did His Honors care to listen to our pleadings and supplications for
JUSTICE, CHARITY, GENEROSITY and FAIRNESS? Did His Honors
attempt to justify their stubborn denial with any semblance of reason,
NEVER. Now that your respondent is given the opportunity to face you,
he reiterates the same statement with emphasis, DID YOU? Sir. Is this.
the way of life in the Philippines today, that even our own President, said:
"the story is current, though nebulous ,is to its truth, it is still being
circulated that justice in the Philippines today is not what it is used to be
before the war. There are those who have told me frankly and brutally
that justice is a commodity, a marketable commodity in the Philippines."
xxx xxx xxx
We condemn the SIN, not the SINNER. We detest the ACTS, not the
ACTOR. We attack the decision of this Court, not the members. ... We
were provoked. We were compelled by force of necessity. We were
angry but we waited for the finality of the decision. We waited until this
Court has performed its duties. We never interfered nor obstruct in the
performance of their duties. But in the end, after seeing that the
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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 self-
sacrifice. If we have to choose between forcing ourselves to have faith
and confidence in the members of the Court but disregard our
Constitution and to uphold the Constitution and be condemned by the
members of this Court, there is no choice, we must uphold the latter.
But overlooking, for the nonce, the vituperative chaff which he claims is
not intended as a studied disrespect to this Court, let us examine the
grain of his grievances.
He chafes at the minute resolution denial of his petition for review. We
are quite aware of the criticisms2 expressed against this Court's practice
of rejecting petitions by minute resolutions. We have been asked to do
away with it, to state the facts and the law, and to spell out the reasons
for denial. We have given this suggestion very careful thought. For we
know the abject frustration of a lawyer who tediously collates the facts
and for many weary hours meticulously marshalls his arguments, only to
have his efforts rebuffed with a terse unadorned denial. Truth to tell,
however, most petitions rejected by this Court are utterly frivolous and
ought never to have been lodged at all.3 The rest do exhibit a first-
impression cogency, but fail to, withstand critical scrutiny. By and large,
this Court has been generous in giving due course to petitions
forcertiorari.
Be this as it may, were we to accept every case or write a full opinion for
every petition we reject, we would be unable to carry out effectively the
burden placed upon us by the Constitution. The proper role of the
Supreme Court, as Mr. Chief Justice Vinson of the U.S. Supreme Court
has defined it, is to decide "only those cases which present questions
whose resolutions will have immediate importance beyond the particular
Page 162
facts and parties involved." Pertinent here is the observation of Mr.
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LEGAL ETHICS
Justice Frankfurter in Maryland vs. Baltimore Radio Show, 94 L. ed 562,
566:
A variety of considerations underlie denials of the writ, and as to the
same petition different reasons may read different justices to the same
result ... .
Since there are these conflicting, and, to the uninformed, even confusing
reasons for denying petitions for certiorari, it has been suggested from
time to time that the Court indicate its reasons for denial. Practical
considerations preclude. In order that the Court may be enabled to
discharge its indispensable duties, Congress has placed the control of
the Court's business, in effect, within the Court's discretion. During the
last three terms the Court disposed of 260, 217, 224 cases, respectively,
on their merits. For the same three terms the Court denied, respectively,
1,260, 1,105,1,189 petitions calling for discretionary review. If the Court
is to do its work it would not be feasible to give reasons, however brief,
for refusing to take these cases. The tune that would be required is
prohibitive. Apart from the fact that as already indicated different reasons
not infrequently move different members of the Court in concluding that
a particular case at a particular time makes review undesirable.
Six years ago, in Novino, et al., vs. Court of Appeals, et al., 1,21098,
May 31, 1963 (60 O.G. 8099), this Court, through the then Chief Justice
Cesar Bengzon, articulated its considered view on this matter. There, the
petitioners counsel urged that a "lack of merit" resolution violates Section
12 of Article VIII of the Constitution. Said Chief Justice Bengzon:
In connection with identical short resolutions, the same question has
been raised before; and we held that these "resolutions" are not
"decisions" within the above constitutional requirement. They merely
hold that the petition for review should not be entertained in view of the
provisions of Rule 46 of the Rules of Court; and even ordinary lawyers
have all this time so understood it. It should be remembered that a
petition to review the decision of the Court of Appeals is not a matter of
right, but of sound judicial discretion; and so there is no need to fully
explain the court's denial. For one thing, the facts and the law are already
mentioned in the Court of Appeals' opinion.
By the way, this mode of disposal has as intended helped the Court
in alleviating its heavy docket; it was patterned after the practice of the
U.S. 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
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number of decisions. There was, therefore, no need for this Court to
exercise its supervisory power.
As a law practitioner who was admitted to the Bar as far back as 1941,
Atty. Almacen knew or ought to have known that for a motion for
reconsideration to stay the running of the period of appeal, the movant
must not only serve a copy of the motion upon the adverse party (which
he did), but also notify the adverse party of the time and place of hearing
(which admittedly he did not). This rule was unequivocally articulated
in Manila Surety & Fidelity vs. Batu Construction & Co., supra:
The written notice referred to evidently is prescribed for motions in
general by Rule 15, Sections 4 and 5 (formerly Rule 26), which provides
that such notice shall state the time, and place of hearing and shall be
served upon all the Parties concerned at least three days in advance.
And according to Section 6 of the same Rule no motion shall be acted
upon by the court without proof of such notice. Indeed it has been held
that in such a case the motion is nothing but a useless piece of paper
(Philippine National Bank v. Damasco, I,18638, Feb. 28, 1963; citing
Manakil v. Revilla, 42 Phil. 81; Roman Catholic Bishop of Lipa v.
Municipality of Unisan, 41 Phil. 866; and Director of Lands vs. Sanz, 45
Phil. 117). The reason is obvious: Unless the movant sets the time and
place of hearing the Court would have no way to determine whether that
party agrees to or objects to the motion, and if he objects, to hear him on
his objection, since the Rules themselves do not fix any period within
which he may file his reply or opposition.
If Atty. Almacen failed to move the appellate court to review the lower
court's judgment, he has only himself to blame. His own negligence
caused the forfeiture of the remedy of appeal, which, incidentally, is not
a matter of right. To shift away from himself the consequences of his
carelessness, he looked for a "whipping boy." But he made sure that he
assumed the posture of a martyr, and, in offering to surrender his
professional certificate, he took the liberty of vilifying this Court and
inflicting his exacerbating rancor on the members thereof. It would thus
appear that there is no justification for his scurrilous and scandalous
outbursts.
Nonetheless we gave this unprecedented act of Atty. Almacen the most
circumspect consideration. We know that it is natural for a lawyer to
express his dissatisfaction each time he loses what he sanguinely
believes to be a meritorious case. That is why lawyers are given 'wide
latitude to differ with, and voice their disapproval of, not only the courts'
rulings but, also the manner in which they are handed down.
Moreover, every citizen has the right to comment upon and criticize the
actuations of public officers. This right is not diminished by the fact that
the criticism is aimed at a judicial authority,4 or that it is articulated by a
lawyer.5 Such right is especially recognized where the criticism concerns
a concluded litigation,6 because then the court's actuations are thrown
open to public consumption.7 "Our decisions and all our official actions,"
said the Supreme Court of Nebraska,8 "are public property, and the
press and the people have the undoubted right to comment on them,
criticize and censure them as they see fit. Judicial officers, like other
public servants, must answer for their official actions before the chancery
of public opinion."
The likely danger of confusing the fury of human reaction to an attack on
one's integrity, competence and honesty, with "imminent danger to the
administration of justice," is the reason why courts have been loath to
inflict punishment on those who assail their actuations.9 This danger
lurks especially in such a case as this where those who Sit as members
of an entire Court are themselves collectively the aggrieved parties.
Courts thus treat with forbearance and restraint a lawyer who vigorously
assails their actuations. 10 For courageous and fearless advocates are
the strands that weave durability into the tapestry of justice. Hence, as
citizen and officer of the court, every lawyer is expected not only to
exercise the right, but also to consider it his duty to expose the
shortcomings and indiscretions of courts and judges. 11
Courts and judges are not sacrosanct. 12 They should and expect critical
Page 163
evaluation of their performance. 13 For like the executive and the
legislative branches, the judiciary is rooted in the soil of democratic
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LEGAL ETHICS
society, nourished by the periodic appraisal of the citizens whom it is
expected to serve.
Well-recognized therefore is the right of a lawyer, both as an officer of
the court and as a citizen, to criticize in properly respectful terms and
through legitimate channels the acts of courts and judges. The reason is
that
An attorney does not surrender, in assuming the important place
accorded to him in the administration of justice, his right as a citizen to
criticize the decisions of the courts in a fair and respectful manner, and
the independence of the bar, as well as of the judiciary, has always been
encouraged by the courts. (In re Ades, 6 F Supp. 487) .
Criticism of the courts has, indeed, been an important part of the
traditional work of the bar. In the prosecution of appeals, he points out
the errors of lower courts. In written for law journals he dissects with
detachment the doctrinal pronouncements of courts and fearlessly lays
bare for -all to see that flaws and inconsistence" of the doctrines (Hill v.
Lyman, 126 NYS 2d 286). As aptly stated by Chief Justice Sharswood
in Ex Parte Steinman, 40 Am. Rep. 641:
No class of the community ought to be allowed freer scope in the
expansion or publication of opinions as to the capacity, impartiality or
integrity of judges than members of the bar. They have the best
opportunities for observing and forming a correct judgment. They are in
constant attendance on the courts. ... To say that an attorney can only
act or speak on this subject under liability to be called to account and to
be deprived of his profession and livelihood, by the judge or judges whom
he may consider it his duty to attack and expose, is a position too
monstrous to be
entertained. ... .
Hence, as a citizen and as Officer of the court a lawyer is expected not
only to exercise the right, but also to consider it his duty to avail of such
right. No law may abridge this right. Nor is he "professionally answerable
for a scrutiny into the official conduct of the judges, which would not
expose him to legal animadversion as a citizen." (Case of Austin, 28 Am.
Dee. 657, 665).
Above all others, the members of the bar have the beat Opportunity to
become conversant with the character and efficiency of our judges. No
class is less likely to abuse the privilege, as no other class has as great
an interest in the preservation of an able and upright bench. (State Board
of Examiners in Law v. Hart, 116 N.W. 212, 216)
To curtail the right of a lawyer to be critical of the foibles of courts and
judges is to seal the lips of those in the best position to give advice and
who might consider it their duty to speak disparagingly. "Under such a
rule," so far as the bar is concerned, "the merits of a sitting judge may be
rehearsed, but as to his demerits there must be profound silence." (State
v. Circuit Court, 72 N.W. 196)
But it is the cardinal condition of all such criticism that it shall be bona
fide, and shall not spill over the walls of decency and propriety. A wide
chasm exists between fair criticism, on the One hand, and abuse and
slander of courts and the judges thereof, on the other. Intemperate and
unfair criticism is a gross violation of the duty of respect to courts. It is
Such a misconduct that subjects a lawyer to disciplinary action.
For, membership in the Bar imposes upon a person obligations and
duties which are not mere flux and ferment. His investiture into the legal
profession places upon his shoulders no burden more basic, more
exacting and more imperative than that of respectful behavior toward the
courts. He vows 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
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maintain at all times the respect due to courts of justice and judicial
officers. This obligation is not discharged by merely observing the rules
of courteous demeanor in open court, but includes abstaining out of court
from all insulting language and offensive conduct toward judges
personally for their judicial acts. (Bradley, v. Fisher, 20 Law. 4d. 647,
652)
The lawyer's duty to render respectful subordination to the courts is
essential to the orderly administration of justice. Hence, in the
assertion of their clients' rights, lawyers even those gifted with
superior intellect are enjoined to rein up their tempers.
The counsel in any case may or may not be an abler or more learned
lawyer than the judge, and it may tax his patience and temper to submit
to rulings which he regards as incorrect, but discipline and self-respect
are as necessary to the orderly administration of justice as they are to
the effectiveness of an army. The decisions of the judge must be obeyed,
because he is the tribunal appointed to decide, and the bar should at all
times be the foremost in rendering respectful submission. (In Re
Scouten, 40 Atl. 481)
We concede that a lawyer may think highly of his intellectual endowment
That is his privilege. And he may suffer frustration at what he feels is
others' lack of it. That is his misfortune. Some such frame of mind,
however, should not be allowed to harden into a belief that he may attack
a court's decision in words calculated to jettison the time-honored
aphorism that courts are the temples of right. (Per Justice Sanchez
in Rheem of the Philippines vs. Ferrer, L-22979. June 26, 1967)
In his relations with the courts, a lawyer may not divide his personality
so as to be an attorney at one time and a mere citizen at another. Thus,
statements made by an attorney in private conversations or
communications 16 or in the course of a political, campaign, 17 if couched
in insulting language as to bring into scorn and disrepute the
administration of justice, may subject the attorney to disciplinary action.
Of fundamental pertinence at this juncture is an examination of relevant
parallel precedents.
1. Admitting that a "judge as a public official is neither sacrosanct nor
immune to public criticism of his conduct in office," the Supreme Court
of Florida in State v. Calhoon, 102 So. 2d 604, 608, nevertheless
declared that "any conduct of a lawyer which brings into scorn and
disrepute the administration of justice demands condemnation and the
application of appropriate penalties," adding that:
It would be contrary to, every democratic theory to hold that a judge or a
court is beyond bona fide comments and criticisms which do not exceed
the bounds of decency and truth or which are not aimed at. the
destruction of public confidence in the judicial system as such. However,
when the likely impairment of the administration of justice the direct
product of false and scandalous accusations then the rule is otherwise.
2. In In Re Glenn, 130 N.W. 2d 672, an attorney was suspended for
putting out and circulating a leaflet entitled "JUSTICE??? IN OTUMWA,"
which accused a municipal judge of having committed judicial error, of
being so prejudiced as to deny his clients a fair trial on appeal and of
being subject to the control of a group of city officials. As a prefatory
statement he wrote: "They say that Justice is BLIND, but it took Municipal
Judge Willard to prove that it is also DEAF and DUMB!" The court did
not hesitate to find that the leaflet went much further than the accused,
as a lawyer, had a right to do.
The entire publication evidences a desire on the part Of the accused to
belittle and besmirch the court and to bring it into disrepute with the
general public.
3. In In Re Humphrey, 163 Pac. 60, the Supreme Court of California
affirmed the two-year suspension of an attorney who published a circular
assailing a judge who at that time was a candidate for re-election to a
judicial office. The circular which referred to two decisions of the judge
concluded with a statement that the judge "used his judicial office to
enable -said bank to keep that money." Said the court:
We are aware that there is a line of authorities which place no limit to the
Page 164
criticism members of the bar may make regarding the capacity,
impartiality, or integrity of the courts, even though it extends to the
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LEGAL ETHICS
deliberate publication by the attorney capable of correct reasoning of
baseless insinuations against the intelligence and integrity of the highest
courts. See State Board, etc. v. Hart. 116 N.W. 212, 17 LRA (N.S.) 585,
15 Ann Cas 197 and note: Ex parte Steinman 95 Pac. 220, 40 Am. Rep.
637. In the first case mentioned it was observed, for instance:
"It may be (although we do not so decide) that a libelous publication by
an attorney, directed against a judicial officer, could be so vile and of
such a nature as to justify the disbarment of its author."
Yet the false charges made by an attorney in that case were of graver
character than those made by the respondent here. But, in our view, the
better rule is that which requires of those who are permitted to enjoy the
privilege of practicing law the strictest observance at all times of the
principles of truth, honesty and fairness, especially in their criticism of the
courts, to the end that the public confidence in the due administration of
justice be upheld, and the dignity and usefulness of the courts be
maintained. In re Collins, 81 Pac. 220.
4. In People ex rel Chicago Bar Asso. v. Metzen, 123 N.E. 734, an
attorney, representing a woman who had been granted a divorce,
attacked the judge who set aside the decree on bill of review. He wrote
the judge a threatening letter and gave the press the story of a proposed
libel suit against the judge and others. The letter began:
Unless the record in In re Petersen v. Petersen is cleared up so that my
name is protected from the libel, lies, and perjury committed in the cases
involved, I shall be compelled to resort to such drastic action as the law
allows and the case warrants.
Further, he said: "However let me assure you I do not intend to allow
such dastardly work to go unchallenged," and said that he was engaged
in dealing with men and not irresponsible political manikins or
appearances of men. Ordering the attorney's disbarment, the Supreme
Court of Illinois declared:
... Judges are not exempt from just criticism, and whenever there is
proper ground for serious complaint against a judge, it is the right and
duty of a lawyer to submit his grievances to the proper authorities, but
the public interest and the administration of the law demand that the
courts should have the confidence and respect of the people. Unjust
criticism, insulting language, and offensive conduct toward the judges
personally by attorneys, who are officers of the court, which tend to bring
the courts and the law into disrepute and to destroy public confidence in
their integrity, cannot be permitted. The letter written to the judge was
plainly an attempt to intimidate and influence him in the discharge of
judicial functions, and the bringing of the unauthorized suit, together with
the write-up in the Sunday papers, was intended and calculated to bring
the court into disrepute with the public.
5. In a public speech, a Rhode Island lawyer accused the courts of the
state of being influenced by corruption and greed, saying that the seats
of the Supreme Court were bartered. It does not appear that the attorney
had criticized any of the opinions or decisions of the Court. The lawyer
was charged with unprofessional conduct, and was ordered suspended
for a period of two years. The Court said:
A calumny of that character, if believed, would tend to weaken the
authority of the court against whose members it was made, bring its
judgments into contempt, undermine its influence as an unbiased arbiter
of the people's right, and interfere with the administration of justice. ...
Because a man is a member of the bar the court will not, under the guise
of disciplinary proceedings, deprive him of any part of that freedom of
speech which he possesses as a citizen. The acts and decisions of the
courts of this state, in cases that have reached final determination, are
not exempt from fair and honest comment and criticism. It is only when
an attorney transcends the limits of legitimate criticism that he will be
held responsible for an abuse of his liberty of speech. We well
understand that an independent bar, as well as independent court, is
always a vigilant defender of civil rights. In Re Troy, 111 Atl. 723. 725.
6. In In Re Rockmore, 111 NYS 879, an attorney was suspended for six
months for submitting to an appellate court an affidavit reflecting upon
the judicial integrity of the court from which the appeal was taken. Such
action, the Court said, constitutes unprofessional conduct justifying
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suspension from practice, notwithstanding that he fully retracted and
withdrew the statements, and asserted that the affidavit was the result of
an impulse caused by what he considered grave injustice. The Court
said:
We cannot shut our eyes to the fact that there is a growing habit in the
profession of criticising the motives and integrity of judicial officers in the
discharge of their duties, and thereby reflecting on the administration of
justice and creating the impression that judicial action is influenced by
corrupt or improper motives. Every attorney of this court, as well as every
other citizen, has the right and it is his duty, to submit charges to the
authorities in whom is vested the power to remove judicial officers for
any conduct or act of a judicial officer that tends to show a violation of
his duties, or would justify an inference that he is false to his trust, or has
improperly administered the duties devolved upon him; and such
charges to the tribunal, if based upon reasonable inferences, will be
encouraged, and the person making them
protected. ... While we recognize the inherent right of an attorney in a
case decided against him, or the right of the Public generally, to criticise
the decisions of the courts, or the reasons announced for them, the habit
of criticising the motives of judicial officers in the performance of their
official duties, when the proceeding is not against the officers whose acts
or motives are criticised, tends to subvert the confidence of the
community in the courts of justice and in the administration of justice;
and when such charges are made by officers of the courts, who are
bound by their duty to protect the administration of justice, the attorney
making such charges is guilty of professional misconduct.
7. In In Re Mitchell, 71 So. 467, a lawyer published this statement:
I accepted the decision in this case, however, with patience, barring
possible temporary observations more or less vituperative and finally
concluded, that, as my clients were foreigners, it might have been
expecting too much to look for a decision in their favor against a widow
residing here.
The Supreme Court of Alabama declared that:
... the expressions above set out, not only transcend the bounds of
propriety and privileged criticism, but are an unwarranted attack, direct,
or by insinuation and innuendo, upon the motives and integrity of this
court, and make out a prima facie case of improper conduct upon the
part of a lawyer who holds a license from this court and who is under
oath to demean himself with all good fidelity to the court as well as to his
client.
The charges, however, were dismissed after the attorney apologized to
the Court.
8. In State ex rel. Dabney v. Breckenridge, 258 Pac. 747, an attorney
published in a newspaper an article in which he impugned the motives
of the court and its members to try a case, charging the court of having
arbitrarily and for a sinister purpose undertaken to suspend the writ
of habeas corpus. The Court suspended the respondent for 30 days,
saying that:
The privileges which the law gives to members of the bar is one most
subversive of the public good, if the conduct of such members does not
measure up to the requirements of the law itself, as well as to the ethics
of the profession. ...
The right of free speech and free discussion as to judicial determination
is of prime importance under our system and ideals of government. No
right thinking man would concede for a moment that the best interest to
private citizens, as well as to public officials, whether he labors in a
judicial capacity or otherwise, would be served by denying this right of
free speech to any individual. But such right does not have as its corollary
that members of the bar who are sworn to act honestly and honorably
both with their client and 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
Page 165
polluted water supply than is the health of the thought of a community
toward the judiciary by the filthy wanton, and malignant misuse of
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LEGAL ETHICS
members of the bar of the confidence the public, through its duly
established courts, has reposed in them to deal with the affairs of the
private individual, the protection of whose rights he lends his strength
and money to maintain the judiciary. For such conduct on the part of the
members of the bar the law itself demands retribution not the court.
9. In Bar Ass'n of San Francisco v. Philbrook, 170 Pac. 440, the filing of
an affidavit by an attorney in a pending action using in respect to the
several judges the terms criminal corrupt, and wicked conspiracies,,"
"criminal confederates," "colossal and confident insolence," "criminal
prosecution," "calculated brutality," "a corrupt deadfall," and similar
phrases, was considered conduct unbecoming of a member of the bar,
and the name of the erring lawyer was ordered stricken from the roll of
attorneys.
10. In State Board of Examiners v. Hart, 116 N.W. 215, the erring
attorney claimed that greater latitude should be allowed in case of
criticism of cases finally adjudicated than in those pending. This lawyer
wrote a personal letter to the Chief Justice of the Supreme Court of
Minnesota impugning both the intelligence and the integrity of the said
Chief Justice and his associates in the decisions of certain appeals in
which he had been attorney for the defeated litigants. The letters were
published in a newspaper. One of the letters contained this paragraph:
You assigned it (the property involved) to one who has no better right to
it than the burglar to his plunder. It seems like robbing a widow to reward
a fraud, with the court acting as a fence, or umpire, watchful and vigilant
that the widow got no undue
advantage. ... The point is this: Is a proper motive for the decisions
discoverable, short of assigning to the court emasculated intelligence, or
a constipation of morals and faithlessness to duty? If the state bar
association, or a committee chosen from its rank, or the faculty of the
University Law School, aided by the researches of its hundreds of bright,
active students, or if any member of the court, or any other person, can
formulate a statement of a correct motive for the decision, which shall
not require fumigation before it is stated, and quarantine after it is made,
it will gratify every right-minded citizen of the state to read it.
The Supreme Court of Minnesota, in ordering the suspension of the
attorney for six months, delivered its opinion as follows:
The question remains whether the accused was guilty of professional
misconduct in sending to the Chief Justice the letter addressed to him.
This was done, as we have found, for the very purpose of insulting him
and the other justices of this court; and the insult was so directed to the
Chief Justice personally because of acts done by him and his associates
in their official capacity. Such a communication, so made, could never
subserve any good purpose. Its only effect in any case would be to gratify
the spite of an angry attorney and humiliate the officers so assailed. It
would not and could not ever enlighten the public in regard to their judicial
capacity or integrity. Nor was it an exercise by the accused of any
constitutional right, or of any privilege which any reputable attorney,
uninfluenced by passion, could ever have any occasion or desire to
assert. No judicial officer, with due regard to his position, can resent such
an insult otherwise than by methods sanctioned by law; and for any
words, oral or written, however abusive, vile, or indecent, addressed
secretly to the judge alone, he can have no redress in any action triable
by a jury. "The sending of a libelous communication or libelous matter to
the person defamed does not constitute an actionable publication." 18
Am. & Eng. Enc. Law (2d Ed.) p. 1017. In these respects the sending by
the accused of this letter to the Chief Justice was wholly different from
his other acts charged in the accusation, and, as we have said, wholly
different principles are applicable thereto.
The conduct of the accused was in every way discreditable; but so far as
he exercised the rights of a citizen, guaranteed by the Constitution and
sanctioned by considerations of public policy, to which reference has
been made, he was immune, as we hold, from the penalty here sought
to be enforced. To that extent his rights as a citizen were paramount to
the obligation which he had assumed as an officer of this court. When,
however he proceeded and thus assailed the Chief Justice personally,
he exercised no right which the court can recognize, but, on the contrary,
PINEDAPCGRNMAN
willfully violated his obligation to maintain the respect due to courts and
judicial officers. "This obligation is not discharged by merely observing
the rules of courteous demeanor in open court, but it includes abstaining
out of court from all insulting language and offensive conduct toward the
judges personally for their official acts."Bradley v. Fisher, 13 Wall. (U.S.)
355, 20 L. Ed. 646. And there appears to be no distinction, as regards
the principle involved, between the indignity of an assault by an attorney
upon a judge, induced by his official act, and a personal insult for like
cause by written or spoken words addressed to the judge in his
chambers or at his home or elsewhere. Either act constitutes misconduct
wholly different from criticism of judicial acts addressed or spoken to
others. The distinction made is, we think entirely logical and well
sustained by authority. It was recognized in Ex parte McLeod supra.
While the court in that case, as has been shown, fully sustained the right
of a citizen to criticise rulings of the court in actions which are ended, it
held that one might be summarily punished for assaulting a judicial
officer, in that case a commissioner of the court, for his rulings in a cause
wholly concluded. "Is it in the power of any person," said the court, "by
insulting or assaulting the judge because of official acts, if only the
assailant restrains his passion until the judge leaves the building, to
compel the judge to forfeit either his own self-respect to the regard of the
people by tame submission to the indignity, or else set in his own person
the evil example of punishing the insult by taking the law in his own
hands? ... No high-minded, manly man would hold judicial office under
such conditions."
That a communication such as this, addressed to the Judge personally,
constitutes professional delinquency for which a professional
punishment may be imposed, has been directly decided. "An attorney
who, after being defeated in a case, wrote a personal letter to the trial
justice, complaining of his conduct and reflecting upon his integrity as a
justice, is guilty of misconduct and will be disciplined by the court." Matter
of Manheim 133 App. Div. 136, 99 N.Y. Supp. 87 The same is held in Re
Griffin (City Ct.) 1 N.Y. 7 and in Re Wilkes (City Ct.) 3 N.Y. In the latter
case it appeared that the accused attorney had addressed a sealed letter
to a justice of the City Court of New York, in which it was stated, in
reference to his decision: "It is not law; neither is it common sense. The
result is I have been robbed of 80." And it was decided that, while such
conduct was not a contempt under the state, the matter should be "called
to the attention of the Supreme Court, which has power to discipline the
attorney." "If," says the court, "counsel learned in the law are permitted
by writings leveled at the heads of judges, to charge them with ignorance,
with unjust rulings, and with robbery, either as principals or accessories,
it will not be long before the general public may feel that they may redress
their fancied grievances in like manner, and thus the lot of a judge will be
anything but a happy one, and the administration of justice will fall into
bad repute."
The recent case of Johnson v. State (Ala.) 44 South. 671, was in this
respect much the same as the case at bar. The accused, an attorney at
law, wrote and mailed a letter to the circuit judge, which the latter
received by due course of mail, at his home, while not holding court, and
which referred in insulting terms to the conduct of the judge in a cause
wherein the accused had been one of the attorneys. For this it was held
that the attorney was rightly disbarred in having "willfully failed to
maintain respect due to him [the judge] as a judicial officer, and thereby
breached his oath as an attorney." As recognizing the same principle,
and in support of its application to the facts of this case, we cite the
following: Ex parte Bradley, 7 Wall (U.S.) 364, 19 L. Ed. 214; Beene v.
State, 22 Ark. 149;Commonwealth v. Dandridge, 2 Va. Cas. 408; People
v. Green, 7 Colo 237, 244, 3 Pac. 65, 374, 49 Am. Rep. 351; Smith's
Appeal, 179 Pa. 14, 36 Atl. 134; Scouten's Appeal, 186 Pa. 270, Atl. 481.
Our conclusion is that the charges against the accused have been so far
sustained as to make it our duty to impose such a penalty as may be
sufficient lesson to him and a suitable warning to others. ...
11. In Cobb v. United States, 172 F. 641, the court affirmed a lawyer's
Page 166
suspension for 18 months for publishing a letter in a newspaper in which
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LEGAL ETHICS
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 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
PINEDAPCGRNMAN
evidence the incompetency or narrow mindedness of the majority of its
members," and his belief that "In the wake of so many blunders and
injustices deliberately committed during these last years, ... the only
remedy to put an end to go much evil, is to change the members of the
Supreme Court," which tribunal he denounced as "a constant peril to
liberty and democracy" and "a far cry from the impregnable bulwark of
justice of those memorable times of Cayetano Arellano, Victorino Mapa,
Manuel Araullo and other learned jurists who were the honor and glory
of the Philippine Judiciary." He there also announced that one of the first
measures he would introduce in then forthcoming session of Congress
would have for its object the complete reorganization of the Supreme
Court. Finding him in contempt, despite his avowals of good faith and his
invocation of the guarantee of free speech, this Court declared:
But in the above-quoted written statement which he caused to be
published in the press, the respondent does not merely criticize or
comment on the decision of the Parazo case, which was then and still is
pending consideration by this Court upon petition of Angel Parazo. He
not only intends to intimidate the members of this Court with the
presentation of a bill in the next Congress, of which he is one of the
members, reorganizing the Supreme Court and reducing the number of
Justices from eleven, so as to change the members of this Court which
decided the Parazo case, who according to his statement, are
incompetent and narrow minded, in order to influence the final decision
of said case by this Court, and thus embarrass or obstruct the
administration of justice. But the respondent also attacks the honesty
and integrity of this Court for the apparent purpose of bringing the
Justices of this Court into disrepute and degrading the administration. of
justice ... .
To hurl the false charge that this Court has been for the last years
committing deliberately so many blunders and injustices, that is to say,
that it has been deciding in favor of Que party knowing that the law and
justice is on the part of the adverse party and not on the one in whose
favor the decision was rendered, in many cases decided during the last
years, would tend necessarily to undermine the confidence of the people
in the honesty and integrity of the members of this Court, and
consequently to lower ,or degrade the administration of justice by this
Court. The Supreme Court of the Philippines is, under the Constitution,
the last bulwark to which the Filipino people may repair to obtain relief
for their grievances or protection of their rights when these are trampled
upon, and if the people lose their confidence in the honesty and integrity
of the members of this Court and believe that they cannot expect justice
therefrom, they might be driven to take the law into their own hands, and
disorder and perhaps chaos might be the result. As a member of the bar
and an officer of the courts, Atty. Vicente Sotto, like any other, is in duty
bound to uphold the dignity and authority of this Court, to which he owes
fidelity according to the oath he has taken as such attorney, and not to
promote distrust in the administration of justice. Respect to the courts
guarantees the stability of other institutions, which without such guaranty
would be resting on a very shaky foundation.
Significantly, too, the Court therein hastened to emphasize that
... an attorney as an officer of the court is under special obligation to be
respectful in his conduct and communication to the courts; he may be
removed from office or stricken from the roll of attorneys as being guilty
of flagrant misconduct (17 L.R.A. [N.S.], 586, 594.)
3. In Rheem of the Philippines vs. Ferrer: In re Proceedings against
Alfonso Ponce Enrile, et al., supra, where counsel charged this Court
with having "repeatedly fallen" into ,the pitfall of blindly adhering to its
previous "erroneous" pronouncements, "in disregard of the law on
jurisdiction" of the Court of Industrial Relations, our condemnation of
counsel's misconduct was unequivocal. Articulating the sentiments of the
Court, Mr. Justice Sanchez stressed:
As we look back at the language (heretofore quoted) employed in the
motion for reconsideration, implications there are which inescapably
arrest attention. It speaks of one pitfall into which this Court
Page 167
has repeatedly fallen whenever the jurisdiction of the Court of Industrial
Relations comes into question. That pitfall is the tendency of this Court
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LEGAL ETHICS
to rely on its own pronouncements in disregard of the law on jurisdiction.
It makes a sweeping charge that the decisions of this Court, blindly
adhere to earlier rulings without as much as making any reference to and
analysis of the pertinent statute governing the jurisdiction of the industrial
court. The plain import of all these is that this Court is so patently inept
that in determining the jurisdiction of the industrial court, it has committed
error and continuously repeated that error to the point of perpetuation. It
pictures this Court as one which refuses to hew to the line drawn by the
law on jurisdictional boundaries. Implicit in the quoted statements is that
the pronouncements of this Court on the jurisdiction of the industrial court
are not entitled to respect. Those statements detract much from the
dignity of and respect due this Court. They bring into question the
capability of the members and some former members of this Court to
render justice. The second paragraph quoted yields a tone of sarcasm
which counsel labelled as "so called" the "rule against splitting of
jurisdiction."
Similar thoughts and sentiments have been expressed in other
cases 18 which, in the interest of brevity, need not now be reviewed in
detail.
Of course, a common denominator underlies the aforecited cases all
of them involved contumacious statements made in pleadings filed
pending litigation. So that, in line with the doctrinal rule that the protective
mantle of contempt may ordinarily be invoked only against scurrilous
remarks or malicious innuendoes while a court mulls over a pending case
and not after the conclusion thereof, 19 Atty. Almacen would now seek to
sidestep the thrust of a contempt charge by his studied emphasis that
the remarks for which he is now called upon to account were made only
after this Court had written finis to his appeal. This is of no moment.
The rule that bars contempt after a judicial proceeding has terminated,
has lost much of its vitality. For sometime, this was the prevailing view in
this jurisdiction. The first stir for a modification thereof, however, came
when, inPeople vs. Alarcon, 20 the then Chief Justice Manuel V. Moran
dissented with the holding of the majority, speaking thru Justice Jose P.
Laurel, which upheld the rule above-adverted to. A complete
disengagement from the settled rule was later to be made in In re
Brillantes, 21 a contempt proceeding, where the editor of the
Manila Guardian was adjudged in contempt for publishing an editorial
which asserted that the 1944 Bar Examinations were conducted in a
farcical manner after the question of the validity of the said examinations
had been resolved and the case closed. Virtually, this was an adoption
of the view expressed by Chief Justice Moran in his dissent in Alarcon to
the effect that them may still be contempt by publication even after a
case has been terminated. Said Chief Justice Moran in Alarcon:
A publication which tends to impede, obstruct, embarrass or influence
the courts in administering justice in a pending suit or proceeding,
constitutes criminal contempt which is 'summarily punishable by courts.
A publication which tends to degrade the courts and to destroy public
confidence in them or that which tends to bring them in any way into
disrepute, constitutes likewise criminal contempt, and is equally
punishable by courts. What is sought, in the first kind of contempt, to be
shielded against the influence of newspaper comments, is the all-
important duty of the courts to administer justice in the decision of a
pending case. In the second kind of contempt, the punitive hand of justice
is extended to vindicate the courts from any act or conduct calculated to
bring them into disfavor or to destroy public confidence in them. In the
first there is no contempt where there is no action pending, as there is
no decision which might in any way be influenced by the newspaper
publication. In the second, the contempt exists, with or without a pending
case, as what is sought to be protected is the court itself and its dignity.
Courts would lose their utility if public confidence in them is destroyed.
Accordingly, no comfort is afforded Atty. Almacen by the circumstance
that his statements and actuations now under consideration were made
only after the judgment in his client's appeal had attained finality. He
could as much be liable for contempt therefor as if it had been
perpetrated during the pendency of the said appeal.
PINEDAPCGRNMAN
More than this, however, consideration of whether or not he could be
held liable for contempt for such post litigation utterances and actuations,
is here immaterial. By the tenor of our Resolution of November 17, 1967,
we have confronted the situation here presented solely in so far as it
concerns Atty. Almacen's professional identity, his sworn duty as a
lawyer and his fitness as an officer of this Court, in the exercise of the
disciplinary power the morals inherent in our authority and duty to
safeguard and ethics of the legal profession and to preserve its ranks
from the intrusions of unprincipled and unworthy disciples of the noblest
of callings. In this inquiry, the pendency or non-pendency of a case in
court is altogether of no consequence. The sole objective of this
proceeding is to preserve the purity of the legal profession, by removing
or suspending a member whose misconduct has proved himself unfit to
continue to be entrusted with the duties and responsibilities belonging to
the office of an attorney.
Undoubtedly, this is well within our authority to do. By constitutional
mandate, 22 our is the solemn duty, amongst others, to determine the
rules for admission to the practice of law. Inherent in this prerogative is
the corresponding authority to discipline and exclude from the practice
of law those who have proved themselves unworthy of continued
membership in the Bar. Thus
The power to discipline attorneys, who are officers of the court, is an
inherent and incidental power in courts of record, and one which is
essential to an orderly discharge of judicial functions. To deny its
existence is equivalent to a declaration that the conduct of attorneys
towards courts and clients is not subject to restraint. Such a view is
without support in any respectable authority, and cannot be tolerated.
Any court having the right to admit attorneys to practice and in this state
that power is vested in this court-has the inherent right, in the exercise
of a sound judicial discretion to exclude them from practice. 23
This, because the admission of a lawyer to the practice of law is a
representation to all that he is worthy of their confidence and respect. So
much so that
... whenever it is made to appear to the court that an attorney is no longer
worthy of the trust and confidence of the public and of the courts, it
becomes, not only the right, but the duty, of the court which made him
one of its officers, and gave him the privilege of ministering within its bar,
to withdraw the privilege. Therefore it is almost universally held that both
the admission and disbarment of attorneys are judicial acts, and that one
is admitted to the bar and exercises his functions as an attorney, not as
a matter of right, but as a privilege conditioned on his own behavior and
the exercise of a just and sound judicial discretion. 24
Indeed, in this jurisdiction, that power to remove or suspend has risen
above being a mere inherent or incidental power. It has been elevated to
an express mandate by the Rules of Court. 25
Our authority and duty in the premises being unmistakable, we now
proceed to make an assessment of whether or not the utterances and
actuations of Atty. Almacen here in question are properly the object of
disciplinary sanctions.
The proffered surrender of his lawyer's certificate is, of course, purely
potestative on Atty. Almacen's part. Unorthodox though it may seem, no
statute, no law stands in its way. Beyond making the mere offer,
however, he went farther. In haughty and coarse language, he actually
availed of the said move as a vehicle for his vicious tirade against this
Court. The integrated entirety of his petition bristles with vile insults all
calculated to drive home his contempt for and disrespect to the Court
and its members. Picturing his client as "a sacrificial victim at the altar of
hypocrisy," he categorically denounces the justice administered by this
Court to be not only blind "but also deaf and dumb." With unmitigated
acerbity, he virtually makes this Court and its members with verbal
talons, imputing to the Court the perpetration of "silent injustices" and
"short-cut justice" while at the same time branding its members as
"calloused to pleas of justice." And, true to his announced threat to argue
the cause of his client "in the people's forum," he caused the publication
Page 168
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
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LEGAL ETHICS
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 b
y purging the profession of members who by their misconduct have
proved themselves no longer worthy to be entrusted with the duties and
responsibilities pertaining to the office of an attorney. 29 In such posture,
there can thus be no occasion to speak of a complainant or a prosecutor.
Undeniably, the members of the Court are, to a certain degree, aggrieved
parties. Any tirade against the Court as a body is necessarily and
inextricably as much so against the individual members thereof. But in
the exercise of its disciplinary powers, the Court acts as an entity
separate and distinct from the individual personalities of its members.
Consistently with the intrinsic nature of a collegiate court, the individual
members act not as such individuals but. only as a duly constituted court.
Their distinct individualities are lost in the majesty of their office.30 So
that, in a very real sense, if there be any complainant in the case at bar,
it can only be the Court itself, not the individual members thereof as
well as the people themselves whose rights, fortunes and properties,
nay, even lives, would be placed at grave hazard should the
PINEDAPCGRNMAN
administration of justice be threatened by the retention in the Bar of men
unfit to discharge the solemn responsibilities of membership in the legal
fraternity.
Finally, the power to exclude persons from the practice of law is but a
necessary incident of the power to admit persons to said practice. By
constitutional precept, this power is vested exclusively in this Court. This
duty it cannot abdicate just as much as it cannot unilaterally renounce
jurisdiction legally invested upon it. 31 So that even if it be conceded that
the members collectively are in a sense the aggrieved parties, that fact
alone does not and cannot disqualify them from the exercise of that
power because public policy demands that they., acting as a Court,
exercise the power in all cases which call for disciplinary action. The
present is such a case. In the end, the imagined anomaly of the merger
in one entity of the personalities of complainant, prosecutor and judge is
absolutely inexistent.
Last to engage our attention is the nature and extent of the sanctions
that may be visited upon Atty. Almacen for his transgressions. As marked
out by the Rules of Court, these may range from mere suspension to
total removal or disbarment. 32 The discretion to assess under the
circumstances the imposable sanction is, of course, primarily addressed
to the sound discretion of the Court which, being neither arbitrary and
despotic nor motivated by personal animosity or prejudice, should ever
be controlled by the imperative need that the purity and independence of
the Bar be scrupulously guarded and the dignity of and respect due to
the Court be zealously maintained.
That the misconduct committed by Atty. Almacen is of considerable
gravity cannot be overemphasized. However, heeding the stern
injunction that disbarment should never be decreed where a lesser
sanction would accomplish the end desired, and believing that it may not
perhaps be futile to hope that in the sober light of some future day, Atty.
Almacen will realize that abrasive language never fails to do disservice
to an advocate and that in every effervescence of candor there is ample
room for the added glow of respect, it is our view that suspension will
suffice under the circumstances. His demonstrated persistence in his
misconduct by neither manifesting repentance nor offering apology
therefor leave us no way of determining how long that suspension should
last and, accordingly, we are impelled to decree that the same should be
indefinite. This, we are empowered to do not alone because
jurisprudence grants us discretion on the matter 33 but also because,
even without the comforting support of precedent, it is obvious that if we
have authority to completely exclude a person from the practice of law,
there is no reason why indefinite suspension, which is lesser in degree
and effect, can be regarded as falling outside of the compass of that
authority. The merit of this choice is best shown by the fact that it will
then be left to Atty. Almacen to determine for himself how long or how
short that suspension shall last. For, at any time after the suspension
becomes effective he may prove to this Court that he is once again fit to
resume the practice of law.
ACCORDINGLY, IT IS THE SENSE of the Court that Atty. Vicente Raul
Almacen be, as he is hereby, suspended from the practice of law until
further orders, the suspension to take effect immediately.
Let copies of this resolution. be furnished the Secretary of Justice, the
Solicitor General and the Court of Appeals for their information and
guidance.
Rule 11.04 A lawyer shall not attribute to a judge motives not
supported by the record or having no materiality to the case.
ASEAN PACIFIC PLANNERS, APP G.R. No. 1
CONSTRUCTION AND
DEVELOPMENT CORPORATION*
AND CESAR GOCO, Present:
Petitioners,
QUISUMB
Page 169
CARPIO M
- versus - TINGA,
Intelligentia et Scientia Semper Mea
 LEGAL ETHICS
CITY OF URDANETA, CEFERINO J. CAPALAD, WALDO C. DEL
CASTILLO, NORBERTO M. DEL PRADO, JESUS A. ORDONO AND Promulgated:
AQUILINO MAGUISA,**
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
x photocopies were submitted, and (3) lack of written explanation why
DECISION
QUISUMBING, J.:
The instant petition seeks to set aside the Resolutions[1] dated April 15,
2003 and February 4, 2004 of the Court of Appeals in CA-G.R. SP No.
76170.
This case stemmed from a Complaint[2] for annulment of contracts with
prayer for preliminary prohibitory injunction and temporary restraining
order filed by respondent Waldo C. Del Castillo, in his capacity as
taxpayer, against respondents City of Urdaneta and Ceferino J. Capalad
doing business under the name JJEFWA Builders, and petitioners Asean
Pacific Planners (APP) represented by Ronilo G. Goco and Asean
Pacific Planners Construction and Development Corporation (APPCDC)
represented by Cesar D. Goco.
Del Castillo alleged that then Urdaneta City Mayor Rodolfo E. Parayno
entered into five contracts for the preliminary design, construction and
management of a four-storey twin cinema commercial center and hotel
involving a massive expenditure of public funds amounting to P250
million, funded by a loan from the Philippine National Bank (PNB). For
minimal work, the contractor was allegedly paid P95 million. Del Castillo
also claimed that all the contracts are void because the object is outside
the commerce of men. The object is a piece of land belonging to the
public domain and which remains devoted to a public purpose as a public
elementary school. Additionally, he claimed that the contracts, from the
feasibility study to management and lease of the future building, are also
void because they were all awarded solely to the Goco family.
In their Answer,[3] APP and APPCDC claimed that the contracts are
valid. Urdaneta City Mayor Amadeo R. Perez, Jr., who filed the citys
Answer,[4] joined in the defense and asserted that the contracts were
properly executed by then Mayor Parayno with prior authority from
the Sangguniang Panlungsod. Mayor Perez also stated that Del Castillo
has no legal capacity to sue and that the complaint states no cause of
action. For respondent Ceferino J. Capalad, Atty. Oscar C. Sahagun filed
an Answer[5] with compulsory counterclaim and motion to dismiss on the
ground that Del Castillo has no legal standing to sue.
Respondents Norberto M. Del Prado, Jesus A. Ordono and Aquilino
Maguisa became parties to the case when they jointly filed, also in their
capacity as taxpayers, a Complaint-in-Intervention[6] adopting the
allegations of Del Castillo.
After pre-trial, the Lazaro Law Firm entered its appearance as counsel
for Urdaneta City and filed an Omnibus Motion[7] with prayer to (1)
withdraw Urdaneta Citys Answer; (2) drop Urdaneta City as defendant
and be joined as plaintiff; (3) admit Urdaneta Citys complaint; and (4)
conduct a new pre-trial. Urdaneta City allegedly wanted to rectify its
position and claimed that inadequate legal representation caused its
inability to file the necessary pleadings in representation of its interests.
In its Order[8] dated September 11, 2002, the Regional Trial Court (RTC)
of Urdaneta City, Pangasinan, Branch 45, admitted the entry of
appearance of the Lazaro Law Firm and granted the withdrawal of
appearance of the City Prosecutor. It also granted the prayer to drop the
city as defendant and admitted its complaint for consolidation with Del
Castillos complaint, and directed the defendants to answer the citys
complaint.
In its February 14, 2003 Order,[9] the RTC denied reconsideration of
the September 11, 2002 Order. It also granted Capalads motion to
expunge all pleadings filed by Atty. Sahagun in his behalf. Capalad was
dropped as defendant, and his complaint filed by Atty. Jorito C. Peralta
was admitted and consolidated with the complaints of Del Castillo
PINEDAPCGRNMAN
VELASCO,and JR.,Urdaneta
and City. The RTC also directed APP and APPCDC to answer
BRION, JJ.Capalads complaint.
Aggrieved, APP and APPCDC filed a petition for certiorari before the
Court of Appeals. In its April 15, 2003 Resolution, the Court of Appeals
dismissed the petition on the following grounds: (1) defective verification
Septemberand
23, certification
2008 of non-forum shopping, (2) failure of the petitioners to
submit certified true copies of the RTCs assailed orders as mere
service of the petition to adverse parties was not personal.[10] The Court
of Appeals also denied APP and APPCDCs motion for reconsideration
in its February 4, 2004 Resolution.[11]
Hence, this petition, which we treat as one for review on certiorari under
Rule 45, the proper remedy to assail the resolutions of the Court of
Appeals.[12]
Petitioners argue that:
I.
THE APPELLATE COURT PALPABLY ERRED AND GRAVELY
ABUSED ITS JUDICIAL PREROGATIVES BY SUMMARILY
DISMISSING THE PETITION ON THE BASIS OF PROCEDURAL
TECHNICALITIES DESPITE SUBSTANTIAL COMPLIANCE
[THEREWITH]
II.
THE TRIAL COURT PALPABLY ERRED AND GRAVELY ABUSED ITS
JUDICIAL PREROGATIVES BY CAPRICIOUSLY
(a.) Entertaining the taxpayers suits of private respondents del
Castillo, del Prado, Ordono and Maguisa despite their clear lack of legal
standing to file the same.
(b.) Allowing the entry of appearance of a private law firm to represent
the City of Urdaneta despite the clear statutory and jurisprudential
prohibitions thereto.
(c.) Allowing Ceferino J. Capalad and the City of Urdaneta to switch
sides, by permitting the withdrawal of their respective answers and
admitting their complaints as well as allowing the appearance of Atty.
Jorito C. Peralta to represent Capalad although Atty. Oscar C. Sahagun,
his counsel of record, had not withdrawn from the case, in gross violation
of well settled rules and case law on the matter.[13]
We first resolve whether the Court of Appeals erred in denying
reconsideration of its April 15, 2003 Resolution despite APP and
APPCDCs subsequent compliance.
Petitioners argue that the Court of Appeals should not have dismissed
the petition on mere technicalities since they have attached the proper
documents in their motion for reconsideration and substantially complied
with the rules.
Respondent Urdaneta City maintains that the Court of Appeals correctly
dismissed the petition because Cesar Goco had no proof he was
authorized to sign the certification of non-forum shopping in behalf of
APPCDC.
Indeed, Cesar Goco had no proof of his authority to sign the verification
and certification of non-forum shopping of the petition for certiorari filed
with the Court of Appeals.[14] Thus, the Court of Appeals is allowed by
the rules the discretion to dismiss the petition since only individuals
vested with authority by a valid board resolution may sign the certificate
of non-forum shopping in behalf of a corporation. Proof of said authority
must be attached; otherwise, the petition is subject to dismissal.[15]
However, it must be pointed out that in several cases,[16] this Court had
considered as substantial compliance with the procedural requirements
the submission in the motion for reconsideration of the authority to sign
the verification and certification, as in this case. The Court notes that the
attachments in the motion for reconsideration show that on March 5,
2003, the Board of Directors of APPCDC authorized Cesar Goco to
institute the petition before the Court of Appeals.[17] On March 22, 2003,
Ronilo Goco doing business under the name APP, also appointed his
father, Cesar Goco, as his attorney-in-fact to file the petition.[18] When
the petition was filed on March 26, 2003[19]before the Court of Appeals,
Page 170
Cesar Goco was duly authorized to sign the verification and certification
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
except that the proof of his authority was not submitted together with the
petition.
Similarly, petitioners submitted in the motion for reconsideration certified
true copies of the assailed RTC orders and we may also consider the
same as substantial compliance.[20] Petitioners also included in the
motion for reconsideration their explanation[21] that copies of the petition
were personally served on the Lazaro Law Firm and mailed to the RTC
and Atty. Peralta because of distance. The affidavit of
service[22] supported the explanation. Considering the substantial issues
involved, it was thus error for the appellate court to deny reinstatement
of the petition.
Having discussed the procedural issues, we shall now proceed to
address the substantive issues raised by petitioners, rather than remand
this case to the Court of Appeals. In our view, the issue, simply put, is:
Did the RTC err and commit grave abuse of discretion in (a) entertaining
the taxpayers suits; (b) allowing a private law firm to
represent Urdaneta City; (c) allowing respondents Capalad
and Urdaneta City to switch from being defendants to becoming
complainants; and (d) allowing Capalads change of attorneys?
On the first point at issue, petitioners argue that a taxpayer may only sue
where the act complained of directly involves illegal disbursement of
public funds derived from taxation. The allegation of respondents Del
Castillo, Del Prado, Ordono and Maguisa that the construction of the
project is funded by the PNB loan contradicts the claim regarding illegal
disbursement since the funds are not directly derived from taxation.
Respondents Del Castillo, Del Prado, Ordono and Maguisa counter that
their personality to sue was not raised by petitioners APP and APPCDC
in their Answer and that this issue was not even discussed in the RTCs
assailed orders.
Petitioners contentions lack merit. The RTC properly allowed the
taxpayers suits. In Public Interest Center, Inc. v. Roxas,[23] we held:
In the case of taxpayers suits, the party suing as a taxpayer must prove
that he has sufficient interest in preventing the illegal expenditure of
money raised by taxation. Thus, taxpayers have been allowed to sue
where there is a claim that public funds are illegally disbursed or that
public money is being deflected to any improper purpose, or that public
funds are wasted through the enforcement of an invalid or
unconstitutional law.
xxxx
Petitioners allegations in their Amended Complaint that the loan
contracts entered into by the Republic and NPC are serviced or paid
through a disbursement of public funds are not disputed by respondents,
hence, they are invested with personality to institute the same.[24]
Here, the allegation of taxpayers Del Castillo, Del Prado, Ordono and
Maguisa that P95 million of the P250 million PNB loan had already been
paid for minimal work is sufficient allegation of overpayment, of illegal
disbursement, that invests them with personality to sue. Petitioners do
not dispute the allegation as they merely insist, albeit erroneously, that
public funds are not involved. Under Article 1953[25] of the Civil Code, the
city acquired ownership of the money loaned from PNB, making the
money public fund. The city will have to pay the loan by revenues raised
from local taxation or by its internal revenue allotment.
In addition, APP and APPCDCs lack of objection in their Answer on the
personality to sue of the four complainants constitutes waiver to raise the
objection under Section 1, Rule 9 of the Rules of Court.[26]
On the second point, petitioners contend that only the City Prosecutor
can represent Urdaneta City and that law and jurisprudence prohibit the
appearance of the Lazaro Law Firm as the citys counsel.
The Lazaro Law Firm, as the citys counsel, counters that the city was
inutile defending its cause before the RTC for lack of needed legal
advice. The city has no legal officer and both City Prosecutor and
Provincial Legal Officer are busy. Practical considerations also dictate
that the city and Mayor Perez must have the same counsel since he
faces related criminal cases. Citing Mancenido v. Court of
Appeals,[27] the law firm states that hiring private counsel is proper where
PINEDAPCGRNMAN
rigid adherence to the law on representation would deprive a party of his
right to redress a valid grievance.[28]
We cannot agree with the Lazaro Law Firm. Its appearance
as Urdaneta Citys counsel is against the law as it provides expressly
who should represent it. The City Prosecutor should continue to
represent the city.
Section 481(a)[29] of the Local Government Code (LGC) of
1991[30] mandates the appointment of a city legal officer. Under Section
481(b)(3)(i)[31] of the LGC, the city legal officer is supposed to represent
the city in all civil actions, as in this case, and special proceedings
wherein the city or any of its officials is a party. In Ramos v. Court of
Appeals,[32] we cited that under Section 19[33] of Republic Act No.
5185,[34] city governments may already create the position of city legal
officer to whom the function of the city fiscal (now prosecutor) as legal
adviser and officer for civil cases of the city shall be transferred.[35] In the
case of Urdaneta City, however, the position of city legal officer is still
vacant, although its charter[36] was enacted way back in 1998.
Because of such vacancy, the City Prosecutors appearance as counsel
of Urdaneta City is proper. The City Prosecutor remains as the citys
legal adviser and officer for civil cases, a function that could not yet be
transferred to the city legal officer. Under the circumstances, the RTC
should not have allowed the entry of appearance of the Lazaro Law
Firmvice the City Prosecutor. Notably, the citys Answer was sworn to
before the City Prosecutor by Mayor Perez. The City Prosecutor
prepared the citys pre-trial brief and represented the city in the pre-trial
conference. No question was raised against the City Prosecutors actions
until the Lazaro Law Firm entered its appearance and claimed that the
city lacked adequate legal representation.
Moreover, the appearance of the Lazaro Law Firm as counsel
for Urdaneta City is against the law. Section 481(b)(3)(i) of the LGC
provides when a special legal officer may be employed, that is, in actions
or proceedings where a component city or municipality is a party adverse
to the provincial government. But this case is not
between Urdaneta City and theProvince of Pangasinan. And we have
consistently held that a local government unit cannot be represented by
private counsel[37] as only public officers may act for and in behalf of
public entities and public funds should not be spent to hire private
lawyers.[38] Pro bono representation in collaboration with the municipal
attorney and prosecutor has not even been allowed.[39]
Neither is the law firms appearance justified under the instances listed
in Mancenido when local government officials can be represented by
private counsel, such as when a claim for damages could result in
personal liability. No such claim against said officials was made in this
case. Note that before it joined the complainants, the city was the one
sued, not its officials. That the firm represents Mayor Perez in criminal
cases, suits in his personal capacity,[40] is of no moment.
On the third point, petitioners claim that Urdaneta City is estopped to
reverse admissions in its Answer that the contracts are valid and, in its
pre-trial brief, that the execution of the contracts was in good faith.
We disagree. The court may allow amendment of pleadings.
Section 5,[41] Rule 10 of the Rules of Court pertinently provides that if
evidence is objected to at the trial on the ground that it is not within the
issues raised by the pleadings, the court may allow the pleadings to be
amended and shall do so with liberality if the presentation of the merits
of the action and the ends of substantial justice will be subserved
thereby. Objections need not even arise in this case since the Pre-trial
Order[42] dated April 1, 2002 already defined as an issue whether the
contracts are valid. Thus, what is needed is presentation of the parties
evidence on the issue. Any evidence of the city for or against the validity
of the contracts will be relevant and admissible. Note also that
under Section 5, Rule 10, necessary amendments to pleadings may be
made to cause them to conform to the evidence.
In addition, despite Urdaneta Citys judicial admissions, the trial court is
still given leeway to consider other evidence to be presented for said
Page 171
admissions may not necessarily prevail over documentary
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
evidence,[43] e.g., the contracts assailed. A partys testimony in open
court may also override admissions in the Answer.[44]
As regards the RTCs order admitting Capalads complaint and dropping
him as defendant, we find the same in order. Capalad insists that Atty.
Sahagun has no authority to represent him. Atty. Sahagun claims
otherwise. We note, however, that Atty. Sahagun represents petitioners
who claim that the contracts are valid. On the other hand, Capalad filed
a complaint for annulment of the contracts. Certainly, Atty. Sahagun
cannot represent totally conflicting interests. Thus, we should expunge
all pleadings filed by Atty. Sahagun in behalf of Capalad.
Relatedly, we affirm the order of the RTC in allowing Capalads change
of attorneys, if we can properly call it as such,
considering Capalads claim that Atty. Sahagun was never his attorney.
Before we close, notice is taken of the offensive language used by Attys.
Oscar C. Sahagun and Antonio B. Escalante in their pleadings before us
and the Court of Appeals.They unfairly called the Court of Appeals a
court of technicalities[45] for validly dismissing their defectively prepared
petition. They also accused the Court of Appeals of protecting, in their
view, an incompetent judge.[46] In explaining the concededly strong
language, Atty. Sahagun further indicted himself. He said that the Court
of Appeals dismissal of the case shows its impatience and readiness to
punish petitioners for a perceived slight on its dignity and such dismissal
smacks of retaliation and does not augur for the cold neutrality and
impartiality demanded of the appellate court.[47]
Accordingly, we impose upon Attys. Oscar C. Sahagun and Antonio B.
Escalante a fine of P2,000[48] each payable to this Court within ten days
from notice and we remind them that they should observe and maintain
the respect due to the Court of Appeals and judicial officers;[49] abstain
from offensive language before the courts;[50] and not attribute to a Judge
motives not supported by the record.[51] Similar acts in the future will be
dealt with more severely.
WHEREFORE, we (1) GRANT the petition; (2) SET ASIDE the
Resolutions dated April 15, 2003 and February 4, 2004 of the Court of
Appeals in CA-G.R. SP No. 76170; (3) DENY the entry of appearance of
the Lazaro Law Firm in Civil Case No. U-7388 and EXPUNGE all
pleadings it filed as counsel of Urdaneta City; (4) ORDER the City
Prosecutor to represent Urdaneta City in Civil Case No. U-7388;
(5) AFFIRM the RTC in admitting the complaint of Capalad; and
(6) PROHIBIT Atty. Oscar C. Sahagun from
representing Capalad and EXPUNGE all pleadings that he filed in behalf
of Capalad.
Let the records of Civil Case No. U-7388 be remanded to the trial court
for further proceedings.
Finally, we IMPOSE a fine of P2,000 each on Attys. Oscar C. Sahagun
and Antonio B. Escalante for their use of offensive language, payable to
this Court within ten (10) days from receipt of this Decision.
UDGE UBALDINO A. LACUROM, A.C. No. 5921
Presiding Judge, Regional Trial Court,
Cabanatuan City, Branch 29 and Present:
Pairing Judge, Branch 30,
Complainant, QUISUMBING, J.,
Chairperson,
CARPIO,
- versus - CARPIO MORALES, and TINGA, JJ.
ATTY. ELLIS F. JACOBA and Promulgated:
ATTY. OLIVIA VELASCO-JACOBA,
Respondents. March 10, 2006
x--------------------------------------------------x
DECISION
CARPIO, J.:
PINEDAPCGRNMAN
The Case
This administrative case arose from a complaint filed on 22 October
2001 by Judge Ubaldino A. Lacurom (Judge Lacurom), Pairing
Judge, Regional Trial Court of CabanatuanCity, Branch 30, against
respondent-spouses Atty. Ellis F. Jacoba and Atty. Olivia Velasco-
Jacoba (respondents). Complainant charged respondents with violation
of Rules 11.03,[1] 11.04,[2] and 19.01[3] of the Code of Professional
Responsibility.
The Facts
The Jacoba-Velasco-Jacoba Law Firm is counsel for plaintiff Alejandro
R. Veneracion (Veneracion) in a civil case for unlawful detainer against
defendant
FedericoBarrientos (Barrientos).[4] The Municipal Trial Court of Cabanat
uan City rendered judgment in favor
of Veneracion but Barrientos appealed to the Regional Trial Court. The
case was raffled to Branch 30 where Judge Lacurom was sitting as
pairing judge.
On 29 June 2001, Judge Lacurom issued a Resolution (Resolution)
reversing the earlier judgments rendered in favor
of Veneracion.[5] The dispositive portion reads:
WHEREFORE, this Court hereby REVERSES its Decision
dated December 22, 2000, as well as REVERSES the Decision of the
court a quo dated July 22, 1997.
Furthermore, the plaintiff-appellee Alejandro Veneracion is ordered to
CEASE and DESIST from ejecting the defendant-appellant
Federico Barrientos from the 1,000 square meterhomelot covered by
TCT No. T-75274, and the smaller area of one hundred forty-seven
square meters, within the 1,000 sq.m. covered by TCT No. T-78613, and
the house thereon standing covered by Tax Declaration No. 02006-
01137, issued by the City Assessor of Cabanatuan City;
and Barrientos is ordered to pay Veneracion P10,000.00 for the house
covered by Tax Declaration No. 02006-01137.
SO ORDERED.[6]
Veneracions counsel filed a Motion for Reconsideration (with Request
for Inhibition)[7] dated 30 July 2001 (30 July 2001 motion), pertinent
portions of which read:
II. PREFATORY STATEMENT
This RESOLUTION of REVERSAL is an ABHORRENT NULLITY as it is
entirely DEVOID of factual and legal basis. It is a Legal
MONSTROSITY in the sense that the Honorable REGIONAL TRIAL
COURT acted as if it were the DARAB (Dept. of Agrarian Reform
ADJUDICATION BOARD)! x x x HOW HORRIBLE and TERRIBLE! The
mistakes are very patent and glaring! x x x
xxxx
III. GROUNDS FOR RECONSIDERATION
1. The Honorable Pairing Court Presiding Judge ERRED in Peremptorily
and Suddenly Reversing the Findings of the Lower Court Judge and the
Regular RTC Presiding Judge:
Page 172
x x x The defendant filed a Motion for Reconsideration, and after a very
questionable SHORT period of time, came this STUNNING and
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
SUDDEN REVERSAL. Without any legal or factual basis, the Hon.
Pairing Judge simply and peremptorily REVERSED two (2) decisions in
favor of the plaintiff. This is highly questionable, if not suspicious, hence,
this Motion for Reconsideration.
xxxx
[The Resolution] assumes FACTS that have not been established and
presumes FACTS not part of the records of the case, all loaded in favor
of the alleged TENANT. Clearly, the RESOLUTION is an INSULT to the
Judiciary and an ANACHRONISM in the Judicial Process. Need we say
more?
xxxx
4. The Honorable Pairing Court Presiding Judge ERRED in Holding That
the Defendant is Entitled to a Homelot, and That the Residential LOT in
Question is That Homelot:
THIS ERROR IS STUPENDOUS and a real BONER. Where did the
Honorable PAIRING JUDGE base this conclusion?
x x x This HORRENDOUS MISTAKE must be corrected here and now!
xxxx
6. The Honorable Pairing Court Presiding Judge ERRED Grievously in
Holding and Declaring that The [court] A QUO Erroneously Took
Cognizance of the Case and That It Had No Jurisdiction over the Subject-
Matter:
Another HORRIBLE ERROR! Even an average Law Student knows that
JURISDICTION is determined by the averments of the COMPLAINT and
not by the averments in the answer! This is backed up by a Litany of
Cases!
xxxx
7. FINALLY, the Honorable Pairing Court Presiding Judge Ridiculously
ERRED in Ordering the Defendant To Pay P10,000.00 to the Plaintiff As
Payment for Plaintiffs HOUSE:
THIS IS the Last STRAW, but it is also the Best ILLUSTRATION of the
Manifold GLARING ERRORS committed by the Hon. Pairing Court
Judge.
xxxx
This Order of the Court for the plaintiff to sell his RESIDENTIAL HOUSE
to the defendant for the ridiculously LOW price of P10,000.00 best
illustrates the Long Line of Faultyreasonings and ERRONEOUS
conclusions of the Hon. Pairing Court Presiding Judge. Like the
proverbial MONSTER, the Monstrous Resolution should be slain on
sight![8]
The 30 July 2001 motion prayed that (1) Judge Lacurom inhibit himself
in order to give plaintiff a fighting chance and (2) the Resolution be
reconsidered and set aside.[9]Atty. Olivia Velasco-Jacoba (Velasco-
Jacoba) signed the motion on behalf of the Jacoba-Velasco-Jacoba Law
Firm.
On 6 August 2001, Judge Lacurom ordered Velasco-Jacoba to appear
before his sala and explain why she should not be held in contempt of
PINEDAPCGRNMAN
court for the very disrespectful, insulting and humiliating contents of
the 30 July 2001 motion.[10] In her Explanation, Comments and
Answer,[11] Velasco-Jacoba claimed that His Honor knows beforehand
who actually prepared the subject Motion; records will show that the
undersigned counsel did not actually or actively participate in this
case.[12] Velasco-Jacoba disavowed any conscious or deliberate intent
to degrade the honor and integrity of the Honorable Court or to detract
in any form from the respect that is rightfully due all courts of
justice.[13]She rationalized as follows:
x x x at first blush, [the motion] really appears to contain some sardonic,
strident and hard-striking adjectives. And, if we are to pick such stringent
words at random and bunch them together, side-by-side x x x then
collectively and certainly they present a cacophonic picture of total and
utter disrespect. x x x
xxxx
We most respectfully submit that plaintiff & counsel did not just fire a
staccato of incisive and hard-hitting remarks, machine-gun style as to be
called contumacious and contemptuous. They were just articulating their
feelings of shock, bewilderment and disbelief at the sudden reversal of
their good fortune, not driven by any desire to just cast aspersions at the
Honorable Pairing judge. They must believe that big monumental errors
deserve equally big adjectives, no more no less. x x x The matters
involved were [neither] peripheral nor marginalized, and they had to call
a spade a spade. x x x [14]
Nevertheless, Velasco-Jacoba expressed willingness to apologize for
whatever mistake [they] may have committed in a moment of unguarded
discretion when [they] may have stepped on the line and gone out of
bounds. She also agreed to have the allegedly contemptuous phrases
stricken off the record.[15]
On 13 September 2001, Judge Lacurom found Velasco-Jacoba guilty of
contempt and penalized her with imprisonment for five days and a fine
of P1,000.[16]
Velasco-Jacoba moved for reconsideration of the 13 September 2001
order. She recounted that on her way out of the house for an afternoon
hearing, Atty. Ellis Jacoba (Jacoba) stopped her and
said O, pirmahan mo na ito kasi last day na, baka mahuli. (Sign this as it
is due today, or it might not be filed on time.) She signed the pleading
handed to her without reading it, in trusting blind faith on her husband of
35 years with whom she entrusted her whole life and future.[17] This
pleading turned out to be the 30 July 2001 motion which Jacoba drafted
but could not sign because of his then suspension from the practice of
law.[18]
Velasco-Jacoba lamented that Judge Lacurom had found her guilty of
contempt without conducting any hearing. She accused
Judge Lacurom of harboring a personal vendetta, ordering her
imprisonment despite her status as senior lady lawyer of the
IBP Nueva Ecija Chapter, already a senior citizen, and a grandmother
many times over.[19] At any rate, she argued, Judge Lacurom should
have inhibited himself from the case out of delicadeza because
[Veneracion] had already filed against him criminal cases before the
Office of the City Prosecutor of Cabanatuan City and before the
Ombudsman.[20]
The records show that with the assistance of counsel Jacoba and
the Jacoba-Velasco-Jacoba Law Firm, Veneracion had executed an
Page 173
affidavit on 23 August 2001 accusing Judge Lacurom of knowingly
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
rendering unjust judgment through inexcusable negligence and
ignorance[21] and violating
Section 3(e) of Republic Act No. 3019 (RA 3019).[22] The first charge
became the subject of a preliminary investigation[23] by the City
Prosecutor of Cabanatuan City. On the second charge, Veneracion set
forth his allegations in a Complaint-Affidavit[24] filed on 28 August 2001
with the Office of the Deputy Ombudsman for Luzon.
Judge Lacurom issued another order on 21 September 2001, this time
directing Jacoba to explain why he should not be held in
contempt.[25] Jacoba complied by filing an Answer with Second Motion
for Inhibition, wherein he denied that he typed or prepared the 30 July
2001 motion. Against Velasco-Jacobas statements implicating
him, Jacobainvoked the marital privilege rule in
evidence.[26] Judge Lacurom later rendered a Judge Lacurom acted with grave abuse of discretion [amounting] to lack
decision[27] finding Jacoba guilty of contempt of court and sentencing him
to pay a fine ofP500.
On 22 October 2001, Judge Lacurom filed the present complaint against
respondents before the Integrated Bar of the Philippines (IBP).
Report and Recommendation of the IBP
Respondents did not file an answer and neither did they appear at the
hearing set by IBP Commissioner Atty. Lydia A. Navarro (IBP
Commissioner Navarro) despite sufficient notice.[28]
IBP Commissioner Navarro, in her Report and Recommendation of 10
October 2002, recommended the suspension of respondents from the
practice of law for six months.[29]IBP Commissioner Navarro found that
respondents were prone to us[ing] offensive and derogatory remarks and
phrases which amounted to discourtesy and disrespect for
authority.[30] Although the remarks were not directed at
Judge Lacurom personally, they were aimed at his position as a judge,
which is a smack on the judiciary system as a whole.[31]
The IBP Board of Governors (IBP Board) adopted IBP Commissioner
Navarros Report and Recommendation, except for the length of
suspension which the IBP Board reduced to three months.[32] On 10
December 2002, the IBP Board transmitted its recommendation to this
Court, together with the documents pertaining to the case.
Several days later, Velasco-Jacoba sought reconsideration of the IBP
Board decision, thus:[33]
xxxx
3. For the information of the Honorable Commission, the present
complaint of Judge Lacurom is sub judice; the same issues
involved in this case are raised before the Honorable Court of
Appeals presently pending in CA-G.R. SP No. 66973 for Certiorari
and Mandatory Inhibition with TRO and Preliminary Injunction x x x;
4. We filed an Administrative Case against Judge Lacurom before the
Supreme Court involving the same issues we raised in the
aforementioned Certiorari case, which was dismissed by the Supreme
Court for being premature, in view of the pending Certiorari case before
the Court of Appeals;
5. In like manner, out of respect and deference to the Court of Appeals,
the present complaint should likewise be dismissed and/or suspended
pending resolution of the certiorari case by the Court of
Appeals.[34] (Emphasis supplied)
PINEDAPCGRNMAN
The Courts Ruling
On a preliminary note, we reject Velasco-Jacobas contention that the
present complaint should be considered sub judice in view of the petition
for certiorari and mandatory inhibition with preliminary injunction (petition
for certiorari)[35] filed before the Court of Appeals.
The petition for certiorari, instituted by Veneracion and Velasco-
Jacoba on 4 October 2001, seeks to nullify the following orders issued
by Judge Lacurom in Civil Case No. 2836: (1) the Orders dated 26
September 2001 and 9 November 2001 denying respondents respective
motions for inhibition; and (2) the 13 September 2001 Order which found
Velasco-Jacoba guilty of contempt. The petitioners allege that
of jurisdiction, in violation of express provisions of the law and applicable
decisions of the Supreme Court.[36]
Plainly, the issue before us is respondents liability under the Code of
Professional Responsibility. The outcome of this case has no bearing on
the resolution of the petition for certiorari, as there is neither identity of
issues nor causes of action.
Neither should the Courts dismissal of the administrative complaint
against Judge Lacurom for being premature impel us to dismiss this
complaint. Judge Lacuroms orders in Civil Case No. 2836 could not be
the subject of an administrative complaint against him while a petition for
certiorari assailing the same orders is pending with an
appellate court.Administrative remedies are neither alternative nor
cumulative to judicial review where such review is available to the
aggrieved parties and the same has not been resolved with finality. Until
there is a final declaration that the challenged order or judgment is
manifestly erroneous, there will be no basis to conclude whether the
judge is administratively liable.[37]
The respondents are situated differently within the factual setting of this
case. The corresponding implications of their actions also give rise to
different liabilities. We first examine the charge against Velasco-Jacoba.
There is no dispute that the genuine signature of Velasco-
Jacoba appears on the 30 July 2001 motion. Velasco-
Jacobas responsibility as counsel is governed by Section 3, Rule 7 of
the Rules of Court:
SEC. 3. Signature and address.Every pleading must be signed by the
party or counsel representing him x x x.
The signature of counsel constitutes a certificate by him that he has
read the pleading, that to the best of his knowledge, information,
and belief there is good ground to support it, and that it is not
interposed for delay.
x x x Counsel who x x x signs a pleading in violation of this Rule, or
alleges scandalous or indecent matter therein x x x shall be subject
to appropriate disciplinary action. (Emphasis supplied)
By signing the 30 July 2001 motion, Velasco-Jacoba in effect certified
that she had read it, she knew it to be meritorious, and it was not for the
purpose of delaying the case. Her signature supplied the motion with
legal effect and elevated its status from a mere scrap of paper to that of
a court document.
Velasco-Jacoba insists, however, that she signed the 30 July 2001
motion only because of her husbands request but she did not know its
contents beforehand. Apparently, this practice of signing each others
pleadings is a long-standing arrangement between the spouses.
Page 174
According to Velasco-Jacoba, [s]o implicit is [their] trust for each other
that this happens all the time. Through the years, [she] already lost count
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
of the number of pleadings prepared by one that is signed by the
other.[38] By Velasco-Jacobas own admission, therefore, she violated
Section 3 of Rule 7. This violation is an act of falsehood before the
courts, which in itself is a ground
for subjecting her to disciplinary action, independent of any other ground
arising from the contents of the 30 July 2001 motion.[39]
We now consider the evidence as regards Jacoba. His name does not
appear in the 30 July 2001 motion. He asserts the inadmissibility
of Velasco-Jacobas statement pointing to him as the author of the
motion.
The Court cannot easily let Jacoba off the hook. Firstly, his Answer with
Second Motion for Inhibition did not contain a denial of his wifes account.
Instead, Jacoba impliedly admitted authorship of the motion by stating
that he trained his guns and fired at the errors which he perceived and
believed to be gigantic and monumental.[40]
Secondly, we find Velasco-Jacobas version of the facts more plausible,
for two reasons: (1) her reaction to the events was immediate and
spontaneous, unlike Jacobasdefense which was raised only after a
considerable time had elapsed from the eruption of the
controversy; and (2) Jacoba had been
counsel of record for Veneracion in Civil Case No. 2836, supporting
Velasco-Jacobas assertion that she had not actually participate[d] in the
prosecution of the case.
Moreover, Jacoba filed a Manifestation in Civil Case No. 2836, praying
that Judge Lacurom await the outcome of the petition for certiorari before
deciding the contempt charge against him.[41] This petition for certiorari
anchors some of its arguments on the premise that the motion was, in
fact, Jacobas handiwork.[42]
The marital privilege rule, being a rule of evidence, may be waived by
failure of the claimant to object timely to its presentation or by any
conduct that may be construed as implied consent.[43] This waiver
applies to Jacoba who impliedly admitted authorship of the 30 July 2001
motion.
The Code of Professional Responsibility provides:
Rule 11.03.A lawyer shall abstain from scandalous, offensive or
menacing language or behavior before the Courts.
Rule 11.04.A lawyer shall not attribute to a Judge motives not supported
by the record or have no materiality to the case.
No doubt, the language contained in the 30 July 2001 motion greatly
exceeded the vigor required of Jacoba to defend ably his clients cause.
We recall his use of the following words and phrases: abhorrent
nullity, legal monstrosity, horrendous mistake, horrible error, boner,
and an insult to the judiciary and an anachronism in the judicial process.
Even Velasco-Jacoba acknowledged that the words created a
cacophonic picture of total and utter disrespect.[44]
Respondents nonetheless try to exculpate themselves by saying that
every remark in the 30 July 2001 motion was warranted. We disagree.
Well-recognized is the right of a lawyer, both as an officer of the court
and as a citizen, to criticize in properly respectful terms and through
legitimate channels the acts of courts and judges.[45] However, even the
most hardened judge would be scarred by the scurrilous attack made by
the 30 July 2001 motion on Judge Lacuroms Resolution. On its face, the
PINEDAPCGRNMAN
Resolution presented the facts correctly and decided the case according
to supporting law and jurisprudence. Though a lawyers language may be
forceful and emphatic, it should always be dignified and respectful,
befitting the dignity of the legal profession.[46] The use of unnecessary
language is proscribed if we are to promote high esteem in the courts
and trust in judicial administration.[47]
In maintaining the respect due to the courts, a lawyer is not merely
enjoined to use dignified language but also to pursue the clients
cause through fair and honest means, thus:
Rule 19.01.A lawyer shall employ only fair and honest means to attain
the lawful objectives of his client and shall not present, participate in
presenting or threaten to present unfounded criminal charges to obtain
an improper advantage in any case or proceeding.
Shortly after the filing of the 30 July 2001 motion but before its
resolution, Jacoba assisted his client in instituting two administrative
cases against Judge Lacurom. As we have earlier noted, Civil Case No.
2836 was then pending before Judge Lacuroms sala. The Courts
attention is drawn to the fact that the timing of the filing of these
administrative cases could very well raise the suspicion that the cases
were intended as leverage against Judge Lacurom.
Respondent spouses have both been the subject of administrative cases
before this Court. In Administrative Case No. 2594, we
suspended Jacoba from the practice of law for a period of six months
because of his failure to file an action for the recovery of possession of
property despite the lapse of two and a half years from receipt by him
of P550 which his client gave him as filing and sheriffs fees.[48] In
Administrative Case No. 5505, Jacoba was once again found remiss in
his duties when he failed to file the appellants brief, resulting in the
dismissal of his clients appeal. We imposed the penalty of one year
suspension.[49]
As for Velasco-Jacoba, only recently this Court fined her P5,000 for
appearing in barangay conciliation proceedings on behalf of a party,
knowing fully well the prohibition contained in Section 415 of the Local
Government Code.[50]
In these cases, the Court sternly warned respondents that a repetition of
similar acts would merit a stiffer penalty. Yet, here again we are faced
with the question of whether respondents have conducted themselves
with the courtesy and candor required of them as members of the bar
and officers of the court. We find respondents to have fallen short of the
mark.
WHEREFORE, we SUSPEND Atty. Ellis F. Jacoba from the practice of
law for two (2) years effective upon finality of this
Decision. We also SUSPEND Atty. Olivia Velasco-Jacoba from the
practice of law for two (2) months effective upon finality of this Decision.
We STERNLY WARN respondents that a repetition of the same or
similar infraction shall merit a more severe sanction.
Let copies of this Decision be furnished the Office of the Bar Confidant,
to be appended to respondents personal records as attorneys; the
Integrated Bar of the Philippines; and all courts in the country for their
information and guidance.
SO ORDERED.
Rule 11.05 A lawyer shall submit grievances against a judge to
the proper authorities already.
A lawyer is an officer of the court. He occupies a quasi-judicial
Page 175
office with a tripartite obligation to the courts, to the public and
to his clients.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
The public duties of the attorney take precedence over his
private duties. His first duty is to the courts. Where duties to
the courts conflict with his duties to his clients, the latter must
yield to the former.
Lawyers must be respectful not only in actions but also in the
use of language whether in oral arguments or in pleadings.
Must exert efforts that others (including clients, witnesses)
shall deal with the courts and judicial officers with respect.
Obedience to court orders and processes.
Criticisms of courts must not spill the walls of decency. There
is a wide difference between fair criticism and abuse and
slander of courts and judges. Intemperate and unfair criticism
is a gross violation of the duty to respect the courts. It
amounts to misconduct which subjects the lawyer to
disciplinary action.
A mere disclaimer of any intentional disrespect by appellant
is not a ground for exoneration. His intent must be
determined by a fair interpretation of the languages employed
by him. He cannot escape responsibility by claiming that his
words did not mean what any reader must have understood
them to mean.
Lawyer can demand that the misbehavior of a judge be put
on record.
Lawyers must be courageous enough to expose arbitrariness
and injustice of courts and judges.
A lawyer may submit grievances against judges in the
Supreme Court, Ombudsman, or Congress (for impeachment
of SC judges only).
CONST ART VIII:
SECTION 6. The Supreme Court shall have administrative supervision
over all courts and the personnel thereof.
SECTION 11. The Members of the Supreme Court and judges of lower
courts shall hold office during good behavior until they reached the age
of seventy years or become incapacitated to discharge the duties of their
office. The Supreme Court en banc shall have the power to discipline
judges of lower courts, or order their dismissal by a vote of a majority of
the Members who actually took part in the deliberations on the issues in
the case and voted thereon.
G.R. No. L-27654 February 18, 1970
IN THE MATTER OF PROCEEDINGS FOR DISCIPLINARY ACTION
AGAINST ATTY. VICENTE RAUL ALMACEN In L-27654, ANTONIO
H. CALERO,
vs.
VIRGINIA Y. YAPTINCHAY.
RESOLUTION
CASTRO, J.:
Before us is Atty. Vicente Raul Almacen's "Petition to Surrender Lawyer's
Certificate of Title," filed on September 25, 1967, in protest against what
he therein asserts is "a great injustice committed against his client by this
Supreme Court." He indicts this Court, in his own phrase, as a tribunal
"peopled by men who are calloused to our pleas for justice, who ignore
without reasons their own applicable decisions and commit culpable
violations of the Constitution with impunity." His client's he continues,
who was deeply aggrieved by this Court's "unjust judgment," has
become "one of the sacrificial victims before the altar of hypocrisy." In
the same breath that he alludes to the classic symbol of justice, he
ridicules the members of this Court, saying "that justice as administered
by the present members of the Supreme Court is not only blind, but also
deaf and dumb." He then vows to argue the cause of his client "in the
people's forum," so that "the people may know of the silent injustice's
committed by this Court," and that "whatever mistakes, wrongs and
PINEDAPCGRNMAN
injustices that were committed must never be repeated." He ends his
petition with a prayer that
... a resolution issue ordering the Clerk of Court to receive the certificate
of the undersigned attorney and counsellor-at-law IN TRUST with
reservation that at any time in the future and in the event we regain our
faith and confidence, we may retrieve our title to assume the practice of
the noblest profession.
He reiterated and disclosed to the press the contents of the
aforementioned petition. Thus, on September 26, 1967, the Manila
Times published statements attributed to him, as follows:
Vicente Raul Almacen, in an unprecedented petition, said he did it to
expose the tribunal's"unconstitutional and obnoxious" practice of
arbitrarily denying petitions or appeals without any reason.
Because of the tribunal's "short-cut justice," Almacen deplored, his client
was condemned to pay P120,000, without knowing why he lost the case.
xxx xxx xxx
There is no use continuing his law practice, Almacen said in this
petition, "where our Supreme Court is composed of men who are
calloused to our pleas for justice, who ignore without reason their own
applicable decisions and commit culpable violations of the Constitution
with impunity.
xxx xxx xxx
He expressed the hope that by divesting himself of his title by which he
earns his living, the present members of the Supreme Court "will become
responsive to all cases brought to its attention without discrimination, and
will purge itself of those unconstitutional and obnoxious "lack of merit" or
"denied resolutions. (Emphasis supplied)
Atty. Almacen's statement that
... our own Supreme Court is composed of men who are calloused to our
pleas of [sic] justice, who ignore their own applicable decisions and
commit culpable violations of the Constitution with impunity
was quoted by columnist Vicente Albano Pacis in the issue of the Manila
Chronicle of September 28, 1967. In connection therewith, Pacis
commented that Atty. Almacen had "accused the high tribunal of
offenses so serious that the Court must clear itself," and that "his charge
is one of the constitutional bases for impeachment."
The genesis of this unfortunate incident was a civil case entitled Virginia
Y. Yaptinchay vs. Antonio H. Calero,1 in which Atty. Almacen was
counsel for the defendant. The trial court, after due hearing, rendered
judgment against his client. On June 15, 1966 Atty. Almacen received a
copy of the decision. Twenty days later, or on July 5, 1966, he moved for
its reconsideration. He served on the adverse counsel a copy of the
motion, but did not notify the latter of the time and place of hearing on
said motion. Meanwhile, on July 18, 1966, the plaintiff moved for
execution of the judgment. For "lack of proof of service," the trial court
denied both motions. To prove that he did serve on the adverse party a
copy of his first motion for reconsideration, Atty. Almacen filed on August
17, 1966 a second motion for reconsideration to which he attached the
required registry return card. This second motion for reconsideration,
however, was ordered withdrawn by the trial court on August 30, 1966,
upon verbal motion of Atty. Almacen himself, who, earlier, that is, on
August 22, 1966, had already perfected the appeal. Because the plaintiff
interposed no objection to the record on appeal and appeal bond, the
trial court elevated the case to the Court of Appeals.
But the Court of Appeals, on the authority of this Court's decision
in Manila Surety & Fidelity Co., Inc. vs. Batu Construction & Co., L-
16636, June 24, 1965, dismissed the appeal, in the following words:
Upon consideration of the motion dated March 27, 1967, filed by plaintiff-
appellee praying that the appeal be dismissed, and of the opposition
thereto filed by defendant-appellant; the Court RESOLVED TO
DISMISS, as it hereby dismisses, the appeal, for the reason that the
motion for reconsideration dated July 5, 1966 (pp. 90-113, printed record
on appeal) does not contain a notice of time and place of hearing thereof
and is, therefore, a useless piece of paper (Manila Surety & Fidelity Co.,
Page 176
Inc. vs. Batu Construction & Co., G.R. No. L-16636, June 24, 1965),
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
which did not interrupt the running of the period to appeal, and,
consequently, the appeal was perfected out of time.
Atty. Almacen moved to reconsider this resolution, urging that Manila
Surety & Fidelity Co. is not decisive. At the same time he filed a pleading
entitled "Latest decision of the Supreme Court in Support of Motion for
Reconsideration," citing Republic of the Philippines vs. Gregorio A.
Venturanza, L-20417, decided by this Court on May 30, 1966, as the
applicable case. Again, the Court of Appeals denied the motion for
reconsideration, thus:
Before this Court for resolution are the motion dated May 9, 1967 and
the supplement thereto of the same date filed by defendant- appellant,
praying for reconsideration of the resolution of May 8, 1967, dismissing
the appeal.
Appellant contends that there are some important distinctions between
this case and that of Manila Surety and Fidelity Co., Inc. vs. Batu
Construction & Co., G.R. No. L- 16636, June 24, 1965, relied upon by
this Court in its resolution of May 8, 1967. Appellant further states that in
the latest case,Republic vs. Venturanza, L-20417, May 30, 1966,
decided by the Supreme Court concerning the question raised by
appellant's motion, the ruling is contrary to the doctrine laid down in the
Manila Surety & Fidelity Co., Inc. case.
There is no substantial distinction between this case and that of Manila
Surety & Fidelity Co.
In the case of Republic vs. Venturanza, the resolution denying the
motion to dismiss the appeal, based on grounds similar to those raised
herein was issued on November 26, 1962, which was much earlier than
the date of promulgation of the decision in the Manila Surety Case, which
was June 24, 1965. Further, the resolution in the Venturanza case was
interlocutory and the Supreme Court issued it "without prejudice to
appellee's restoring the point in the brief." In the main decision in said
case (Rep. vs. Venturanza the Supreme Court passed upon the issue
sub silencio presumably because of its prior decisions contrary to the
resolution of November 26, 1962, one of which is that in the Manila
Surety and Fidelity case. Therefore Republic vs. Venturanza is no
authority on the matter in issue.
Atty. Almacen then appealed to this Court by certiorari. We refused to
take the case, and by minute resolution denied the appeal. Denied
shortly thereafter was his motion for reconsideration as well as his
petition for leave to file a second motion for reconsideration and for
extension of time. Entry of judgment was made on September 8, 1967.
Hence, the second motion for reconsideration filed by him after the Said
date was ordered expunged from the records.
It was at this juncture that Atty. Almacen gave vent to his disappointment
by filing his "Petition to Surrender Lawyer's Certificate of Title," already
adverted to a pleading that is interspersed from beginning to end with
the insolent contemptuous, grossly disrespectful and derogatory remarks
hereinbefore reproduced, against this Court as well as its individual
members, a behavior that is as unprecedented as it is unprofessional.
Nonetheless we decided by resolution dated September 28, 1967 to
withhold action on his petition until he shall have actually surrendered his
certificate. Patiently, we waited for him to make good his proffer. No word
came from him. So he was reminded to turn over his certificate, which
he had earlier vociferously offered to surrender, so that this Court could
act on his petition. To said reminder he manifested "that he has no
pending petition in connection with Case G.R. No. L-27654, Calero vs.
Yaptinchay, said case is now final and executory;" that this Court's
September 28, 1967 resolution did not require him to do either a positive
or negative act; and that since his offer was not accepted, he "chose to
pursue the negative act."
In the exercise of its inherent power to discipline a member of the bar for
contumely and gross misconduct, this Court on November 17, 1967
resolved to require Atty. Almacen to show cause "why no disciplinary
action should be taken against him." Denying the charges contained in
the November 17 resolution, he asked for permission "to give reasons
and cause why no disciplinary action should be taken against him ... in
an open and public hearing." This Court resolved (on December 7) "to
PINEDAPCGRNMAN
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, 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
Page 177
before the war. There are those who have told me frankly and brutally
that justice is a commodity, a marketable commodity in the Philippines."
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
xxx xxx xxx
We condemn the SIN, not the SINNER. We detest the ACTS, not the
ACTOR. We attack the decision of this Court, not the members. ... We
were provoked. We were compelled by force of necessity. We were
angry but we waited for the finality of the decision. We waited until this
Court has performed its duties. We never interfered nor obstruct in the
performance of their duties. But in the end, after seeing that the
Constitution has placed finality on your judgment against our client and
sensing that you have not performed your duties with "circumspection,
carefulness, confidence and wisdom", your Respondent rise to claim his
God given right to speak the truth and his Constitutional right of free
speech.
xxx xxx xxx
The INJUSTICES which we have attributed to this Court and the further
violations we sought to be prevented is impliedly shared by our
President. ... .
xxx xxx xxx
What has been abhored and condemned, are the very things that were
applied to us. Recalling Madam Roland's famous apostrophe during the
French revolution, "O Liberty, what crimes are committed in thy name",
we may dare say, "O JUSTICE, what technicalities are committed in thy
name' or more appropriately, 'O JUSTICE, what injustices are committed
in thy name."
xxx xxx xxx
We must admit that this Court is not free from commission of any abuses,
but who would correct such abuses considering that yours is a court of
last resort. A strong public opinion must be generated so as to curtail
these abuses.
xxx xxx xxx
The phrase, Justice is blind is symbolize in paintings that can be found
in all courts and government offices. We have added only two more
symbols, that it is also deaf and dumb. Deaf in the sense that no
members of this Court has ever heard our cries for charity, generosity,
fairness, understanding sympathy and for justice; dumb in the sense,
that inspite of our beggings, supplications, and pleadings to give us
reasons why our appeal has been DENIED, not one word was spoken
or given ... We refer to no human defect or ailment in the above
statement. We only describe the. impersonal state of things and nothing
more.
xxx xxx xxx
As we have stated, we have lost our faith and confidence in the members
of this Court and for which reason we offered to surrender our lawyer's
certificate, IN TRUST ONLY. Because what has been lost today may be
regained tomorrow. As the offer was intended as our self-imposed
sacrifice, then we alone may decide as to when we must end our self-
sacrifice. If we have to choose between forcing ourselves to have faith
and confidence in the members of the Court but disregard our
Constitution and to uphold the Constitution and be condemned by the
members of this Court, there is no choice, we must uphold the latter.
But overlooking, for the nonce, the vituperative chaff which he claims is
not intended as a studied disrespect to this Court, let us examine the
grain of his grievances.
He chafes at the minute resolution denial of his petition for review. We
are quite aware of the criticisms2 expressed against this Court's practice
of rejecting petitions by minute resolutions. We have been asked to do
away with it, to state the facts and the law, and to spell out the reasons
for denial. We have given this suggestion very careful thought. For we
know the abject frustration of a lawyer who tediously collates the facts
and for many weary hours meticulously marshalls his arguments, only to
have his efforts rebuffed with a terse unadorned denial. Truth to tell,
however, most petitions rejected by this Court are utterly frivolous and
ought never to have been lodged at all.3 The rest do exhibit a first-
impression cogency, but fail to, withstand critical scrutiny. By and large,
this Court has been generous in giving due course to petitions
forcertiorari.
PINEDAPCGRNMAN
Be this as it may, were we to accept every case or write a full opinion for
every petition we reject, we would be unable to carry out effectively the
burden placed upon us by the Constitution. The proper role of the
Supreme Court, as Mr. Chief Justice Vinson of the U.S. Supreme Court
has defined it, is to decide "only those cases which present questions
whose resolutions will have immediate importance beyond the particular
facts and parties involved." Pertinent here is the observation of Mr.
Justice Frankfurter in Maryland vs. Baltimore Radio Show, 94 L. ed 562,
566:
A variety of considerations underlie denials of the writ, and as to the
same petition different reasons may read different justices to the same
result ... .
Since there are these conflicting, and, to the uninformed, even confusing
reasons for denying petitions for certiorari, it has been suggested from
time to time that the Court indicate its reasons for denial. Practical
considerations preclude. In order that the Court may be enabled to
discharge its indispensable duties, Congress has placed the control of
the Court's business, in effect, within the Court's discretion. During the
last three terms the Court disposed of 260, 217, 224 cases, respectively,
on their merits. For the same three terms the Court denied, respectively,
1,260, 1,105,1,189 petitions calling for discretionary review. If the Court
is to do its work it would not be feasible to give reasons, however brief,
for refusing to take these cases. The tune that would be required is
prohibitive. Apart from the fact that as already indicated different reasons
not infrequently move different members of the Court in concluding that
a particular case at a particular time makes review undesirable.
Six years ago, in Novino, et al., vs. Court of Appeals, et al., 1,21098,
May 31, 1963 (60 O.G. 8099), this Court, through the then Chief Justice
Cesar Bengzon, articulated its considered view on this matter. There, the
petitioners counsel urged that a "lack of merit" resolution violates Section
12 of Article VIII of the Constitution. Said Chief Justice Bengzon:
In connection with identical short resolutions, the same question has
been raised before; and we held that these "resolutions" are not
"decisions" within the above constitutional requirement. They merely
hold that the petition for review should not be entertained in view of the
provisions of Rule 46 of the Rules of Court; and even ordinary lawyers
have all this time so understood it. It should be remembered that a
petition to review the decision of the Court of Appeals is not a matter of
right, but of sound judicial discretion; and so there is no need to fully
explain the court's denial. For one thing, the facts and the law are already
mentioned in the Court of Appeals' opinion.
By the way, this mode of disposal has as intended helped the Court
in alleviating its heavy docket; it was patterned after the practice of the
U.S. 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
Page 178
departure by the lower court, as to call for the exercise of the power of
supervision.
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LEGAL ETHICS
Recalling Atty. Almacen's petition for review, we found, upon a
thoroughgoing examination of the pleadings. and records, that the Court
of Appeals had fully and correctly considered the dismissal of his appeal
in the light of the law and applicable decisions of this Court. Far from
straying away from the "accepted and usual course of judicial
proceedings," it traced the procedural lines etched by this Court in a
number of decisions. There was, therefore, no need for this Court to
exercise its supervisory power.
As a law practitioner who was admitted to the Bar as far back as 1941,
Atty. Almacen knew or ought to have known that for a motion for
reconsideration to stay the running of the period of appeal, the movant
must not only serve a copy of the motion upon the adverse party (which
he did), but also notify the adverse party of the time and place of hearing
(which admittedly he did not). This rule was unequivocally articulated
in Manila Surety & Fidelity vs. Batu Construction & Co., supra:
The written notice referred to evidently is prescribed for motions in
general by Rule 15, Sections 4 and 5 (formerly Rule 26), which provides
that such notice shall state the time, and place of hearing and shall be
served upon all the Parties concerned at least three days in advance.
And according to Section 6 of the same Rule no motion shall be acted
upon by the court without proof of such notice. Indeed it has been held
that in such a case the motion is nothing but a useless piece of paper
(Philippine National Bank v. Damasco, I,18638, Feb. 28, 1963; citing
Manakil v. Revilla, 42 Phil. 81; Roman Catholic Bishop of Lipa v.
Municipality of Unisan, 41 Phil. 866; and Director of Lands vs. Sanz, 45
Phil. 117). The reason is obvious: Unless the movant sets the time and
place of hearing the Court would have no way to determine whether that
party agrees to or objects to the motion, and if he objects, to hear him on
his objection, since the Rules themselves do not fix any period within
which he may file his reply or opposition.
If Atty. Almacen failed to move the appellate court to review the lower
court's judgment, he has only himself to blame. His own negligence
caused the forfeiture of the remedy of appeal, which, incidentally, is not
a matter of right. To shift away from himself the consequences of his
carelessness, he looked for a "whipping boy." But he made sure that he
assumed the posture of a martyr, and, in offering to surrender his
professional certificate, he took the liberty of vilifying this Court and
inflicting his exacerbating rancor on the members thereof. It would thus
appear that there is no justification for his scurrilous and scandalous
outbursts.
Nonetheless we gave this unprecedented act of Atty. Almacen the most
circumspect consideration. We know that it is natural for a lawyer to
express his dissatisfaction each time he loses what he sanguinely
believes to be a meritorious case. That is why lawyers are given 'wide
latitude to differ with, and voice their disapproval of, not only the courts'
rulings but, also the manner in which they are handed down.
Moreover, every citizen has the right to comment upon and criticize the
actuations of public officers. This right is not diminished by the fact that
the criticism is aimed at a judicial authority,4 or that it is articulated by a
lawyer.5 Such right is especially recognized where the criticism concerns
a concluded litigation,6 because then the court's actuations are thrown
open to public consumption.7 "Our decisions and all our official actions,"
said the Supreme Court of Nebraska,8 "are public property, and the
press and the people have the undoubted right to comment on them,
criticize and censure them as they see fit. Judicial officers, like other
public servants, must answer for their official actions before the chancery
of public opinion."
The likely danger of confusing the fury of human reaction to an attack on
one's integrity, competence and honesty, with "imminent danger to the
administration of justice," is the reason why courts have been loath to
inflict punishment on those who assail their actuations.9 This danger
lurks especially in such a case as this where those who Sit as members
of an entire Court are themselves collectively the aggrieved parties.
Courts thus treat with forbearance and restraint a lawyer who vigorously
assails their actuations. 10 For courageous and fearless advocates are
the strands that weave durability into the tapestry of justice. Hence, as
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citizen and officer of the court, every lawyer is expected not only to
exercise the right, but also to consider it his duty to expose the
shortcomings and indiscretions of courts and judges. 11
Courts and judges are not sacrosanct. 12 They should and expect critical
evaluation of their performance. 13 For like the executive and the
legislative branches, the judiciary is rooted in the soil of democratic
society, nourished by the periodic appraisal of the citizens whom it is
expected to serve.
Well-recognized therefore is the right of a lawyer, both as an officer of
the court and as a citizen, to criticize in properly respectful terms and
through legitimate channels the acts of courts and judges. The reason is
that
An attorney does not surrender, in assuming the important place
accorded to him in the administration of justice, his right as a citizen to
criticize the decisions of the courts in a fair and respectful manner, and
the independence of the bar, as well as of the judiciary, has always been
encouraged by the courts. (In re Ades, 6 F Supp. 487) .
Criticism of the courts has, indeed, been an important part of the
traditional work of the bar. In the prosecution of appeals, he points out
the errors of lower courts. In written for law journals he dissects with
detachment the doctrinal pronouncements of courts and fearlessly lays
bare for -all to see that flaws and inconsistence" of the doctrines (Hill v.
Lyman, 126 NYS 2d 286). As aptly stated by Chief Justice Sharswood
in Ex Parte Steinman, 40 Am. Rep. 641:
No class of the community ought to be allowed freer scope in the
expansion or publication of opinions as to the capacity, impartiality or
integrity of judges than members of the bar. They have the best
opportunities for observing and forming a correct judgment. They are in
constant attendance on the courts. ... To say that an attorney can only
act or speak on this subject under liability to be called to account and to
be deprived of his profession and livelihood, by the judge or judges whom
he may consider it his duty to attack and expose, is a position too
monstrous to be
entertained. ... .
Hence, as a citizen and as Officer of the court a lawyer is expected not
only to exercise the right, but also to consider it his duty to avail of such
right. No law may abridge this right. Nor is he "professionally answerable
for a scrutiny into the official conduct of the judges, which would not
expose him to legal animadversion as a citizen." (Case of Austin, 28 Am.
Dee. 657, 665).
Above all others, the members of the bar have the beat Opportunity to
become conversant with the character and efficiency of our judges. No
class is less likely to abuse the privilege, as no other class has as great
an interest in the preservation of an able and upright bench. (State Board
of Examiners in Law v. Hart, 116 N.W. 212, 216)
To curtail the right of a lawyer to be critical of the foibles of courts and
judges is to seal the lips of those in the best position to give advice and
who might consider it their duty to speak disparagingly. "Under such a
rule," so far as the bar is concerned, "the merits of a sitting judge may be
rehearsed, but as to his demerits there must be profound silence." (State
v. Circuit Court, 72 N.W. 196)
But it is the cardinal condition of all such criticism that it shall be bona
fide, and shall not spill over the walls of decency and propriety. A wide
chasm exists between fair criticism, on the One hand, and abuse and
slander of courts and the judges thereof, on the other. Intemperate and
unfair criticism is a gross violation of the duty of respect to courts. It is
Such a misconduct that subjects a lawyer to disciplinary action.
For, membership in the Bar imposes upon a person obligations and
duties which are not mere flux and ferment. His investiture into the legal
profession places upon his shoulders no burden more basic, more
exacting and more imperative than that of respectful behavior toward the
courts. He vows 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
Page 179
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
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LEGAL ETHICS
incumbent of the judicial office, but for the maintenance of its supreme
importance."
As Mr. Justice Field puts it:
... the obligation which attorneys impliedly assume, if they do not by
express declaration take upon themselves, when they are admitted to
the Bar, is not merely to be obedient to the Constitution and laws, but to
maintain at all times the respect due to courts of justice and judicial
officers. This obligation is not discharged by merely observing the rules
of courteous demeanor in open court, but includes abstaining out of court
from all insulting language and offensive conduct toward judges
personally for their judicial acts. (Bradley, v. Fisher, 20 Law. 4d. 647,
652)
The lawyer's duty to render respectful subordination to the courts is
essential to the orderly administration of justice. Hence, in the
assertion of their clients' rights, lawyers even those gifted with
superior intellect are enjoined to rein up their tempers.
The counsel in any case may or may not be an abler or more learned
lawyer than the judge, and it may tax his patience and temper to submit
to rulings which he regards as incorrect, but discipline and self-respect
are as necessary to the orderly administration of justice as they are to
the effectiveness of an army. The decisions of the judge must be obeyed,
because he is the tribunal appointed to decide, and the bar should at all
times be the foremost in rendering respectful submission. (In Re
Scouten, 40 Atl. 481)
We concede that a lawyer may think highly of his intellectual endowment
That is his privilege. And he may suffer frustration at what he feels is
others' lack of it. That is his misfortune. Some such frame of mind,
however, should not be allowed to harden into a belief that he may attack
a court's decision in words calculated to jettison the time-honored
aphorism that courts are the temples of right. (Per Justice Sanchez
in Rheem of the Philippines vs. Ferrer, L-22979. June 26, 1967)
In his relations with the courts, a lawyer may not divide his personality
so as to be an attorney at one time and a mere citizen at another. Thus,
statements made by an attorney in private conversations or
communications 16 or in the course of a political, campaign, 17 if couched
in insulting language as to bring into scorn and disrepute the
administration of justice, may subject the attorney to disciplinary action.
Of fundamental pertinence at this juncture is an examination of relevant
parallel precedents.
1. Admitting that a "judge as a public official is neither sacrosanct nor
immune to public criticism of his conduct in office," the Supreme Court
of Florida in State v. Calhoon, 102 So. 2d 604, 608, nevertheless
declared that "any conduct of a lawyer which brings into scorn and
disrepute the administration of justice demands condemnation and the
application of appropriate penalties," adding that:
It would be contrary to, every democratic theory to hold that a judge or a
court is beyond bona fide comments and criticisms which do not exceed
the bounds of decency and truth or which are not aimed at. the
destruction of public confidence in the judicial system as such. However,
when the likely impairment of the administration of justice the direct
product of false and scandalous accusations then the rule is otherwise.
2. In In Re Glenn, 130 N.W. 2d 672, an attorney was suspended for
putting out and circulating a leaflet entitled "JUSTICE??? IN OTUMWA,"
which accused a municipal judge of having committed judicial error, of
being so prejudiced as to deny his clients a fair trial on appeal and of
being subject to the control of a group of city officials. As a prefatory
statement he wrote: "They say that Justice is BLIND, but it took Municipal
Judge Willard to prove that it is also DEAF and DUMB!" The court did
not hesitate to find that the leaflet went much further than the accused,
as a lawyer, had a right to do.
The entire publication evidences a desire on the part Of the accused to
belittle and besmirch the court and to bring it into disrepute with the
general public.
3. In In Re Humphrey, 163 Pac. 60, the Supreme Court of California
affirmed the two-year suspension of an attorney who published a circular
assailing a judge who at that time was a candidate for re-election to a
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judicial office. The circular which referred to two decisions of the judge
concluded with a statement that the judge "used his judicial office to
enable -said bank to keep that money." Said the court:
We are aware that there is a line of authorities which place no limit to the
criticism members of the bar may make regarding the capacity,
impartiality, or integrity of the courts, even though it extends to the
deliberate publication by the attorney capable of correct reasoning of
baseless insinuations against the intelligence and integrity of the highest
courts. See State Board, etc. v. Hart. 116 N.W. 212, 17 LRA (N.S.) 585,
15 Ann Cas 197 and note: Ex parte Steinman 95 Pac. 220, 40 Am. Rep.
637. In the first case mentioned it was observed, for instance:
"It may be (although we do not so decide) that a libelous publication by
an attorney, directed against a judicial officer, could be so vile and of
such a nature as to justify the disbarment of its author."
Yet the false charges made by an attorney in that case were of graver
character than those made by the respondent here. But, in our view, the
better rule is that which requires of those who are permitted to enjoy the
privilege of practicing law the strictest observance at all times of the
principles of truth, honesty and fairness, especially in their criticism of the
courts, to the end that the public confidence in the due administration of
justice be upheld, and the dignity and usefulness of the courts be
maintained. In re Collins, 81 Pac. 220.
4. In People ex rel Chicago Bar Asso. v. Metzen, 123 N.E. 734, an
attorney, representing a woman who had been granted a divorce,
attacked the judge who set aside the decree on bill of review. He wrote
the judge a threatening letter and gave the press the story of a proposed
libel suit against the judge and others. The letter began:
Unless the record in In re Petersen v. Petersen is cleared up so that my
name is protected from the libel, lies, and perjury committed in the cases
involved, I shall be compelled to resort to such drastic action as the law
allows and the case warrants.
Further, he said: "However let me assure you I do not intend to allow
such dastardly work to go unchallenged," and said that he was engaged
in dealing with men and not irresponsible political manikins or
appearances of men. Ordering the attorney's disbarment, the Supreme
Court of Illinois declared:
... Judges are not exempt from just criticism, and whenever there is
proper ground for serious complaint against a judge, it is the right and
duty of a lawyer to submit his grievances to the proper authorities, but
the public interest and the administration of the law demand that the
courts should have the confidence and respect of the people. Unjust
criticism, insulting language, and offensive conduct toward the judges
personally by attorneys, who are officers of the court, which tend to bring
the courts and the law into disrepute and to destroy public confidence in
their integrity, cannot be permitted. The letter written to the judge was
plainly an attempt to intimidate and influence him in the discharge of
judicial functions, and the bringing of the unauthorized suit, together with
the write-up in the Sunday papers, was intended and calculated to bring
the court into disrepute with the public.
5. In a public speech, a Rhode Island lawyer accused the courts of the
state of being influenced by corruption and greed, saying that the seats
of the Supreme Court were bartered. It does not appear that the attorney
had criticized any of the opinions or decisions of the Court. The lawyer
was charged with unprofessional conduct, and was ordered suspended
for a period of two years. The Court said:
A calumny of that character, if believed, would tend to weaken the
authority of the court against whose members it was made, bring its
judgments into contempt, undermine its influence as an unbiased arbiter
of the people's right, and interfere with the administration of justice. ...
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
Page 180
an attorney transcends the limits of legitimate criticism that he will be
held responsible for an abuse of his liberty of speech. We well
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LEGAL ETHICS
understand that an independent bar, as well as independent court, is
always a vigilant defender of civil rights. In Re Troy, 111 Atl. 723. 725.
6. In In Re Rockmore, 111 NYS 879, an attorney was suspended for six
months for submitting to an appellate court an affidavit reflecting upon
the judicial integrity of the court from which the appeal was taken. Such
action, the Court said, constitutes unprofessional conduct justifying
suspension from practice, notwithstanding that he fully retracted and
withdrew the statements, and asserted that the affidavit was the result of
an impulse caused by what he considered grave injustice. The Court
said:
We cannot shut our eyes to the fact that there is a growing habit in the
profession of criticising the motives and integrity of judicial officers in the
discharge of their duties, and thereby reflecting on the administration of
justice and creating the impression that judicial action is influenced by
corrupt or improper motives. Every attorney of this court, as well as every
other citizen, has the right and it is his duty, to submit charges to the
authorities in whom is vested the power to remove judicial officers for
any conduct or act of a judicial officer that tends to show a violation of
his duties, or would justify an inference that he is false to his trust, or has
improperly administered the duties devolved upon him; and such
charges to the tribunal, if based upon reasonable inferences, will be
encouraged, and the person making them
protected. ... While we recognize the inherent right of an attorney in a
case decided against him, or the right of the Public generally, to criticise
the decisions of the courts, or the reasons announced for them, the habit
of criticising the motives of judicial officers in the performance of their
official duties, when the proceeding is not against the officers whose acts
or motives are criticised, tends to subvert the confidence of the
community in the courts of justice and in the administration of justice;
and when such charges are made by officers of the courts, who are
bound by their duty to protect the administration of justice, the attorney
making such charges is guilty of professional misconduct.
7. In In Re Mitchell, 71 So. 467, a lawyer published this statement:
I accepted the decision in this case, however, with patience, barring
possible temporary observations more or less vituperative and finally
concluded, that, as my clients were foreigners, it might have been
expecting too much to look for a decision in their favor against a widow
residing here.
The Supreme Court of Alabama declared that:
... the expressions above set out, not only transcend the bounds of
propriety and privileged criticism, but are an unwarranted attack, direct,
or by insinuation and innuendo, upon the motives and integrity of this
court, and make out a prima facie case of improper conduct upon the
part of a lawyer who holds a license from this court and who is under
oath to demean himself with all good fidelity to the court as well as to his
client.
The charges, however, were dismissed after the attorney apologized to
the Court.
8. In State ex rel. Dabney v. Breckenridge, 258 Pac. 747, an attorney
published in a newspaper an article in which he impugned the motives
of the court and its members to try a case, charging the court of having
arbitrarily and for a sinister purpose undertaken to suspend the writ
of habeas corpus. The Court suspended the respondent for 30 days,
saying that:
The privileges which the law gives to members of the bar is one most
subversive of the public good, if the conduct of such members does not
measure up to the requirements of the law itself, as well as to the ethics
of the profession. ...
The right of free speech and free discussion as to judicial determination
is of prime importance under our system and ideals of government. No
right thinking man would concede for a moment that the best interest to
private citizens, as well as to public officials, whether he labors in a
judicial capacity or otherwise, would be served by denying this right of
free speech to any individual. But such right does not have as its corollary
that members of the bar who are sworn to act honestly and honorably
both with their client and with the courts where justice is administered, if
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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 right-minded citizen of the state to read it.
The Supreme Court of Minnesota, in ordering the suspension of the
attorney for six months, delivered its opinion as follows:
The question remains whether the accused was guilty of professional
misconduct in sending to the Chief Justice the letter addressed to him.
This was done, as we have found, for the very purpose of insulting him
and the other justices of this court; and the insult was so directed to the
Chief Justice personally because of acts done by him and his associates
in their official capacity. Such a communication, so made, could never
subserve any good purpose. Its only effect in any case would be to gratify
the spite of an angry attorney and humiliate the officers so assailed. It
would not and could not ever enlighten the public in regard to their judicial
capacity or integrity. Nor was it an exercise by the accused of any
constitutional right, or of any privilege which any reputable attorney,
uninfluenced by passion, could ever have any occasion or desire to
assert. No judicial officer, with due regard to his position, can resent such
an insult otherwise than by methods sanctioned by law; and for any
words, oral or written, however abusive, vile, or indecent, addressed
secretly to the judge alone, he can have no redress in any action triable
by a jury. "The sending of a libelous communication or libelous matter to
the person defamed does not constitute an actionable publication." 18
Am. & Eng. Enc. Law (2d Ed.) p. 1017. In these respects the sending by
the accused of this letter to the Chief Justice was wholly different from
his other acts charged in the accusation, and, as we have said, wholly
different principles are applicable thereto.
Page 181
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
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LEGAL ETHICS
sanctioned by considerations of public policy, to which reference has
been made, he was immune, as we hold, from the penalty here sought
to be enforced. To that extent his rights as a citizen were paramount to
the obligation which he had assumed as an officer of this court. When,
however he proceeded and thus assailed the Chief Justice personally,
he exercised no right which the court can recognize, but, on the contrary,
willfully violated his obligation to maintain the respect due to courts and
judicial officers. "This obligation is not discharged by merely observing
the rules of courteous demeanor in open court, but it includes abstaining
out of court from all insulting language and offensive conduct toward the
judges personally for their official acts."Bradley v. Fisher, 13 Wall. (U.S.)
355, 20 L. Ed. 646. And there appears to be no distinction, as regards
the principle involved, between the indignity of an assault by an attorney
upon a judge, induced by his official act, and a personal insult for like
cause by written or spoken words addressed to the judge in his
chambers or at his home or elsewhere. Either act constitutes misconduct
wholly different from criticism of judicial acts addressed or spoken to
others. The distinction made is, we think entirely logical and well
sustained by authority. It was recognized in Ex parte McLeod supra.
While the court in that case, as has been shown, fully sustained the right
of a citizen to criticise rulings of the court in actions which are ended, it
held that one might be summarily punished for assaulting a judicial
officer, in that case a commissioner of the court, for his rulings in a cause
wholly concluded. "Is it in the power of any person," said the court, "by
insulting or assaulting the judge because of official acts, if only the
assailant restrains his passion until the judge leaves the building, to
compel the judge to forfeit either his own self-respect to the regard of the
people by tame submission to the indignity, or else set in his own person
the evil example of punishing the insult by taking the law in his own
hands? ... No high-minded, manly man would hold judicial office under
such conditions."
That a communication such as this, addressed to the Judge personally,
constitutes professional delinquency for which a professional
punishment may be imposed, has been directly decided. "An attorney
who, after being defeated in a case, wrote a personal letter to the trial
justice, complaining of his conduct and reflecting upon his integrity as a
justice, is guilty of misconduct and will be disciplined by the court." Matter
of Manheim 133 App. Div. 136, 99 N.Y. Supp. 87 The same is held in Re
Griffin (City Ct.) 1 N.Y. 7 and in Re Wilkes (City Ct.) 3 N.Y. In the latter
case it appeared that the accused attorney had addressed a sealed letter
to a justice of the City Court of New York, in which it was stated, in
reference to his decision: "It is not law; neither is it common sense. The
result is I have been robbed of 80." And it was decided that, while such
conduct was not a contempt under the state, the matter should be "called
to the attention of the Supreme Court, which has power to discipline the
attorney." "If," says the court, "counsel learned in the law are permitted
by writings leveled at the heads of judges, to charge them with ignorance,
with unjust rulings, and with robbery, either as principals or accessories,
it will not be long before the general public may feel that they may redress
their fancied grievances in like manner, and thus the lot of a judge will be
anything but a happy one, and the administration of justice will fall into
bad repute."
The recent case of Johnson v. State (Ala.) 44 South. 671, was in this
respect much the same as the case at bar. The accused, an attorney at
law, wrote and mailed a letter to the circuit judge, which the latter
received by due course of mail, at his home, while not holding court, and
which referred in insulting terms to the conduct of the judge in a cause
wherein the accused had been one of the attorneys. For this it was held
that the attorney was rightly disbarred in having "willfully failed to
maintain respect due to him [the judge] as a judicial officer, and thereby
breached his oath as an attorney." As recognizing the same principle,
and in support of its application to the facts of this case, we cite the
following: Ex parte Bradley, 7 Wall (U.S.) 364, 19 L. Ed. 214; Beene v.
State, 22 Ark. 149;Commonwealth v. Dandridge, 2 Va. Cas. 408; People
v. Green, 7 Colo 237, 244, 3 Pac. 65, 374, 49 Am. Rep. 351; Smith's
Appeal, 179 Pa. 14, 36 Atl. 134; Scouten's Appeal, 186 Pa. 270, Atl. 481.
PINEDAPCGRNMAN
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 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
Page 182
J. Francisco's client ... .
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LEGAL ETHICS
2. In In re Sotto, 82 Phil. 595, counsel, a senator and the author of the
Press Freedom Law, reaching to, the imprisonment for contempt of one
Angel Parazo, who, invoking said law, refused to divulge the source of a
news item carried in his paper, caused to be published in i local
newspaper a statement expressing his regret "that our High Tribunal has
not only erroneously interpreted said law, but it is once more putting in
evidence the incompetency or narrow mindedness of the majority of its
members," and his belief that "In the wake of so many blunders and
injustices deliberately committed during these last years, ... the only
remedy to put an end to go much evil, is to change the members of the
Supreme Court," which tribunal he denounced as "a constant peril to
liberty and democracy" and "a far cry from the impregnable bulwark of
justice of those memorable times of Cayetano Arellano, Victorino Mapa,
Manuel Araullo and other learned jurists who were the honor and glory
of the Philippine Judiciary." He there also announced that one of the first
measures he would introduce in then forthcoming session of Congress
would have for its object the complete reorganization of the Supreme
Court. Finding him in contempt, despite his avowals of good faith and his
invocation of the guarantee of free speech, this Court declared:
But in the above-quoted written statement which he caused to be
published in the press, the respondent does not merely criticize or
comment on the decision of the Parazo case, which was then and still is
pending consideration by this Court upon petition of Angel Parazo. He
not only intends to intimidate the members of this Court with the
presentation of a bill in the next Congress, of which he is one of the
members, reorganizing the Supreme Court and reducing the number of
Justices from eleven, so as to change the members of this Court which
decided the Parazo case, who according to his statement, are
incompetent and narrow minded, in order to influence the final decision
of said case by this Court, and thus embarrass or obstruct the
administration of justice. But the respondent also attacks the honesty
and integrity of this Court for the apparent purpose of bringing the
Justices of this Court into disrepute and degrading the administration. of
justice ... .
To hurl the false charge that this Court has been for the last years
committing deliberately so many blunders and injustices, that is to say,
that it has been deciding in favor of Que party knowing that the law and
justice is on the part of the adverse party and not on the one in whose
favor the decision was rendered, in many cases decided during the last
years, would tend necessarily to undermine the confidence of the people
in the honesty and integrity of the members of this Court, and
consequently to lower ,or degrade the administration of justice by this
Court. The Supreme Court of the Philippines is, under the Constitution,
the last bulwark to which the Filipino people may repair to obtain relief
for their grievances or protection of their rights when these are trampled
upon, and if the people lose their confidence in the honesty and integrity
of the members of this Court and believe that they cannot expect justice
therefrom, they might be driven to take the law into their own hands, and
disorder and perhaps chaos might be the result. As a member of the bar
and an officer of the courts, Atty. Vicente Sotto, like any other, is in duty
bound to uphold the dignity and authority of this Court, to which he owes
fidelity according to the oath he has taken as such attorney, and not to
promote distrust in the administration of justice. Respect to the courts
guarantees the stability of other institutions, which without such guaranty
would be resting on a very shaky foundation.
Significantly, too, the Court therein hastened to emphasize that
... an attorney as an officer of the court is under special obligation to be
respectful in his conduct and communication to the courts; he may be
removed from office or stricken from the roll of attorneys as being guilty
of flagrant misconduct (17 L.R.A. [N.S.], 586, 594.)
3. In Rheem of the Philippines vs. Ferrer: In re Proceedings against
Alfonso Ponce Enrile, et al., supra, where counsel charged this Court
with having "repeatedly fallen" into ,the pitfall of blindly adhering to its
previous "erroneous" pronouncements, "in disregard of the law on
jurisdiction" of the Court of Industrial Relations, our condemnation of
PINEDAPCGRNMAN
counsel's misconduct was unequivocal. Articulating the sentiments of the
Court, Mr. Justice Sanchez stressed:
As we look back at the language (heretofore quoted) employed in the
motion for reconsideration, implications there are which inescapably
arrest attention. It speaks of one pitfall into which this Court
has repeatedly fallen whenever the jurisdiction of the Court of Industrial
Relations comes into question. That pitfall is the tendency of this Court
to rely on its own pronouncements in disregard of the law on jurisdiction.
It makes a sweeping charge that the decisions of this Court, blindly
adhere to earlier rulings without as much as making any reference to and
analysis of the pertinent statute governing the jurisdiction of the industrial
court. The plain import of all these is that this Court is so patently inept
that in determining the jurisdiction of the industrial court, it has committed
error and continuously repeated that error to the point of perpetuation. It
pictures this Court as one which refuses to hew to the line drawn by the
law on jurisdictional boundaries. Implicit in the quoted statements is that
the pronouncements of this Court on the jurisdiction of the industrial court
are not entitled to respect. Those statements detract much from the
dignity of and respect due this Court. They bring into question the
capability of the members and some former members of this Court to
render justice. The second paragraph quoted yields a tone of sarcasm
which counsel labelled as "so called" the "rule against splitting of
jurisdiction."
Similar thoughts and sentiments have been expressed in other
cases 18 which, in the interest of brevity, need not now be reviewed in
detail.
Of course, a common denominator underlies the aforecited cases all
of them involved contumacious statements made in pleadings filed
pending litigation. So that, in line with the doctrinal rule that the protective
mantle of contempt may ordinarily be invoked only against scurrilous
remarks or malicious innuendoes while a court mulls over a pending case
and not after the conclusion thereof, 19 Atty. Almacen would now seek to
sidestep the thrust of a contempt charge by his studied emphasis that
the remarks for which he is now called upon to account were made only
after this Court had written finis to his appeal. This is of no moment.
The rule that bars contempt after a judicial proceeding has terminated,
has lost much of its vitality. For sometime, this was the prevailing view in
this jurisdiction. The first stir for a modification thereof, however, came
when, inPeople vs. Alarcon, 20 the then Chief Justice Manuel V. Moran
dissented with the holding of the majority, speaking thru Justice Jose P.
Laurel, which upheld the rule above-adverted to. A complete
disengagement from the settled rule was later to be made in In re
Brillantes, 21 a contempt proceeding, where the editor of the
Manila Guardian was adjudged in contempt for publishing an editorial
which asserted that the 1944 Bar Examinations were conducted in a
farcical manner after the question of the validity of the said examinations
had been resolved and the case closed. Virtually, this was an adoption
of the view expressed by Chief Justice Moran in his dissent in Alarcon to
the effect that them may still be contempt by publication even after a
case has been terminated. Said Chief Justice Moran in Alarcon:
A publication which tends to impede, obstruct, embarrass or influence
the courts in administering justice in a pending suit or proceeding,
constitutes criminal contempt which is 'summarily punishable by courts.
A publication which tends to degrade the courts and to destroy public
confidence in them or that which tends to bring them in any way into
disrepute, constitutes likewise criminal contempt, and is equally
punishable by courts. What is sought, in the first kind of contempt, to be
shielded against the influence of newspaper comments, is the all-
important duty of the courts to administer justice in the decision of a
pending case. In the second kind of contempt, the punitive hand of justice
is extended to vindicate the courts from any act or conduct calculated to
bring them into disfavor or to destroy public confidence in them. In the
first there is no contempt where there is no action pending, as there is
no decision which might in any way be influenced by the newspaper
Page 183
publication. In the second, the contempt exists, with or without a pending
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
case, as what is sought to be protected is the court itself and its dignity.
Courts would lose their utility if public confidence in them is destroyed.
Accordingly, no comfort is afforded Atty. Almacen by the circumstance
that his statements and actuations now under consideration were made
only after the judgment in his client's appeal had attained finality. He
could as much be liable for contempt therefor as if it had been
perpetrated during the pendency of the said appeal.
More than this, however, consideration of whether or not he could be
held liable for contempt for such post litigation utterances and actuations,
is here immaterial. By the tenor of our Resolution of November 17, 1967,
we have confronted the situation here presented solely in so far as it
concerns Atty. Almacen's professional identity, his sworn duty as a
lawyer and his fitness as an officer of this Court, in the exercise of the
disciplinary power the morals inherent in our authority and duty to
safeguard and ethics of the legal profession and to preserve its ranks
from the intrusions of unprincipled and unworthy disciples of the noblest
of callings. In this inquiry, the pendency or non-pendency of a case in
court is altogether of no consequence. The sole objective of this
proceeding is to preserve the purity of the legal profession, by removing
or suspending a member whose misconduct has proved himself unfit to
continue to be entrusted with the duties and responsibilities belonging to
the office of an attorney.
Undoubtedly, this is well within our authority to do. By constitutional
mandate, 22 our is the solemn duty, amongst others, to determine the
rules for admission to the practice of law. Inherent in this prerogative is
the corresponding authority to discipline and exclude from the practice
of law those who have proved themselves unworthy of continued
membership in the Bar. Thus
The power to discipline attorneys, who are officers of the court, is an
inherent and incidental power in courts of record, and one which is
essential to an orderly discharge of judicial functions. To deny its
existence is equivalent to a declaration that the conduct of attorneys
towards courts and clients is not subject to restraint. Such a view is
without support in any respectable authority, and cannot be tolerated.
Any court having the right to admit attorneys to practice and in this state
that power is vested in this court-has the inherent right, in the exercise
of a sound judicial discretion to exclude them from practice. 23
This, because the admission of a lawyer to the practice of law is a
representation to all that he is worthy of their confidence and respect. So
much so that
... whenever it is made to appear to the court that an attorney is no longer
worthy of the trust and confidence of the public and of the courts, it
becomes, not only the right, but the duty, of the court which made him
one of its officers, and gave him the privilege of ministering within its bar,
to withdraw the privilege. Therefore it is almost universally held that both
the admission and disbarment of attorneys are judicial acts, and that one
is admitted to the bar and exercises his functions as an attorney, not as
a matter of right, but as a privilege conditioned on his own behavior and
the exercise of a just and sound judicial discretion. 24
Indeed, in this jurisdiction, that power to remove or suspend has risen
above being a mere inherent or incidental power. It has been elevated to
an express mandate by the Rules of Court. 25
Our authority and duty in the premises being unmistakable, we now
proceed to make an assessment of whether or not the utterances and
actuations of Atty. Almacen here in question are properly the object of
disciplinary sanctions.
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
PINEDAPCGRNMAN
acerbity, he virtually makes this Court and its members with verbal
talons, imputing to the Court the perpetration of "silent injustices" and
"short-cut justice" while at the same time branding its members as
"calloused to pleas of justice." And, true to his announced threat to argue
the cause of his client "in the people's forum," he caused the publication
in the papers of an account of his actuations, in a calculated effort ;to
startle the public, stir up public indignation and disrespect toward the
Court. Called upon to make an explanation, he expressed no regret,
offered no apology. Instead, with characteristic arrogance, he rehashed
and reiterated his vituperative attacks and, alluding to the Scriptures,
virtually tarred and feathered the Court and its members as inveterate
hypocrites incapable of administering justice and unworthy to impose
disciplinary sanctions upon him.
The virulence so blatantly evident in Atty. Almacen's petition, answer and
oral argumentation speaks for itself. The vicious language used and the
scurrilous innuendoes they carried far transcend the permissible bounds
of legitimate criticism. They could never serve any purpose but to gratify
the spite of an irate attorney, attract public attention to himself and, more
important of all, bring ;this Court and its members into disrepute and
destroy public confidence in them to the detriment of the orderly
administration of justice. Odium of this character and texture presents no
redeeming feature, and completely negates any pretense of passionate
commitment to the truth. It is not a whit less than a classic example of
gross misconduct, gross violation of the lawyer's oath and gross
transgression of the Canons of Legal Ethics. As such, it cannot be
allowed to go unrebuked. The way for the exertion of our disciplinary
powers is thus laid clear, and the need therefor is unavoidable.
We must once more stress our explicit disclaimer of immunity from
criticism. Like any other Government entity in a viable democracy, the
Court is not, and should not be, above criticism. But a critique of the
Court must be intelligent and discriminating, fitting to its high function as
the court of last resort. And more than this, valid and healthy criticism is
by no means synonymous to obloquy, and requires detachment and
disinterestedness, real qualities approached only through constant
striving to attain them. Any criticism of the Court must, possess the
quality of judiciousness and must be informed -by perspective and
infused by philosophy. 26
It is not accurate to say, nor is it an obstacle to the exercise of our
authority in ;the premises, that, as Atty. Almacen would have appear, the
members of the Court are the "complainants, prosecutors and judges"
all rolled up into one in this instance. This is an utter misapprehension, if
not a total distortion, not only of the nature of the proceeding at hand but
also of our role therein.
Accent should be laid on the fact that disciplinary proceedings like the
present are sui generis. Neither purely civil nor purely criminal, this
proceeding is not and does not involve a trial of an action or a suit,
but is rather an investigation by the Court into the conduct of its
officers. 27 Not being intended to. inflict punishment, it is in no sense a
criminal prosecution. Accordingly, there is neither a plaintiff nor a
prosecutor therein It may be initiated by the Court motu proprio. 28 Public
interest is its primary objective, and the real question for determination
is whether or not the attorney is still a fit person to be allowed the
privileges as such. Hence, in the exercise of its disciplinary powers, the
Court merely calls upon a member of the Bar to account for his
actuations as an officer of the Court with the end in view of preserving
the purity of the legal profession and the proper and honest
administration of justice by purging the profession of members who by
their misconduct have proved themselves no longer worthy to be
entrusted with the duties and responsibilities pertaining to the office of
an attorney. 29 In such posture, there can thus be no occasion to speak
of a complainant or a prosecutor.
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
Page 184
the exercise of its disciplinary powers, the Court acts as an entity
separate and distinct from the individual personalities of its members.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS PINEDAPCGRNMAN
Consistently with the intrinsic nature of a collegiate court, the individual ROC RULE 138
members act not as such individuals but. only as a duly constituted court. Section 20. Duties of attorneys. It is the duty of an attorney:
Their distinct individualities are lost in the majesty of their office.30 So (g) Not to encourage either the commencement or the continuance of an
that, in a very real sense, if there be any complainant in the case at bar, action or proceeding, or delay any man's cause, from any corrupt motive
it can only be the Court itself, not the individual members thereof as or interest;
well as the people themselves whose rights, fortunes and properties,
nay, even lives, would be placed at grave hazard should the Rule 12.01 A lawyer shall not appear for trial unless he has
administration of justice be threatened by the retention in the Bar of men adequately prepared himself with the law and the facts of his case,
unfit to discharge the solemn responsibilities of membership in the legal the evidence he will adduce and the order of its preference. He
fraternity. should also be ready with the original documents for comparison
Finally, the power to exclude persons from the practice of law is but a with the copies.
necessary incident of the power to admit persons to said practice. By Newly hired counsel: must acquaint himself with all the
constitutional precept, this power is vested exclusively in this Court. This antecedent proceedings and processes that have transpired
duty it cannot abdicate just as much as it cannot unilaterally renounce in the record prior to his takeover.
jurisdiction legally invested upon it. 31 So that even if it be conceded that
If presenting documentary exhibits, he must be ready with the
the members collectively are in a sense the aggrieved parties, that fact
originals for the purpose of comparison with copies thereof.
alone does not and cannot disqualify them from the exercise of that
power because public policy demands that they., acting as a Court,
Rule 18.02 - A lawyer shall not handle any legal matter without
exercise the power in all cases which call for disciplinary action. The
adequate preparation.
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
[A.C. No. 4762. June 28, 2004]
absolutely inexistent.
LINDA VDA. DE ESPINO, complainant, vs. ATTY. PEPITO C.
Last to engage our attention is the nature and extent of the sanctions
PRESQUITO, respondent.
that may be visited upon Atty. Almacen for his transgressions. As marked
RESOLUTION
out by the Rules of Court, these may range from mere suspension to
PUNO, J.:
total removal or disbarment. 32 The discretion to assess under the
circumstances the imposable sanction is, of course, primarily addressed
On June 9, 1997, Linda Vda. de Espino wrote a letter-complaint[1] with
to the sound discretion of the Court which, being neither arbitrary and
the then Court Administrator Alfredo Benipayo, charging respondent
despotic nor motivated by personal animosity or prejudice, should ever
Atty. Pepito C. Presquito, a member of the Integrated Bar of the
be controlled by the imperative need that the purity and independence of
Philippines (IBP), Misamis Oriental Chapter, for having employed fraud,
the Bar be scrupulously guarded and the dignity of and respect due to
trickery and dishonest means in refusing to honor and pay [her] late
the Court be zealously maintained.
husband Virgilio Espino, when he was still alive, the sum
That the misconduct committed by Atty. Almacen is of considerable
of P763,060.00. According to complainant, respondents unlawful refusal
gravity cannot be overemphasized. However, heeding the stern
and dilatory tactics partly triggered the death of her husband, who died
injunction that disbarment should never be decreed where a lesser
disillusioned and embittered.[2] The letter-complaint and affidavit also
sanction would accomplish the end desired, and believing that it may not
alleged that notwithstanding the numerous oral demands by Mr. Espino
perhaps be futile to hope that in the sober light of some future day, Atty.
and complainant (after the death of Mr. Espino), respondent still refused
Almacen will realize that abrasive language never fails to do disservice
to pay the amounts represented by the eight checks which had all been
to an advocate and that in every effervescence of candor there is ample
dishonored. Complainant surmised that Atty. Presquitos refusal to pay
room for the added glow of respect, it is our view that suspension will
may be due to his reliance on the influence of his father-in-law, a former
suffice under the circumstances. His demonstrated persistence in his
Executive Judge of the RTC (Cagayan de Oro), and of his uncle, an RTC
misconduct by neither manifesting repentance nor offering apology
judge (Cagayan de Oro).
therefor leave us no way of determining how long that suspension should
The records show that sometime in September 1995, respondent was
last and, accordingly, we are impelled to decree that the same should be
introduced to complainants late husband, Mr. Virgilio M. Espino. Mr.
indefinite. This, we are empowered to do not alone because
Espino, a resident of Davao City, had sought the assistance of
jurisprudence grants us discretion on the matter 33 but also because,
respondent, a resident of Cagayan de Oro, regarding the sale of his
even without the comforting support of precedent, it is obvious that if we
piece of land with an area of 11,057.59 sq.m. situated in Misamis
have authority to completely exclude a person from the practice of law,
Oriental. The discussion between Mr. Espino and the respondent
there is no reason why indefinite suspension, which is lesser in degree
resulted in the sale of the property to respondent.[3] Under the terms of
and effect, can be regarded as falling outside of the compass of that
the agreement between Mr. Espino and respondent,[4] the purchase
authority. The merit of this choice is best shown by the fact that it will
price of the land was P1,437,410.00, payable on a staggered basis and
then be left to Atty. Almacen to determine for himself how long or how
by installments.[5] Pursuant to the terms of payment in the agreement,
short that suspension shall last. For, at any time after the suspension
respondent issued eight post-dated checks,
becomes effective he may prove to this Court that he is once again fit to
totalingP736,060.00.[6] Respondent then entered into a joint venture or
resume the practice of law.
partnership agreement with Mrs. Guadalupe Ares for the subdivision of
ACCORDINGLY, IT IS THE SENSE of the Court that Atty. Vicente Raul
the land into home-size lots and its development, with a portion of the
Almacen be, as he is hereby, suspended from the practice of law until
land retained by respondent for his own use.[7] The land was eventually
further orders, the suspension to take effect immediately.
titled in the name of respondent and Mrs. Ares, and subdivided into 35
Let copies of this resolution. be furnished the Secretary of Justice, the
to 36 lots.
Solicitor General and the Court of Appeals for their information and
Meanwhile, the eight post-dated checks issued by respondent were all
guidance.
dishonored. Mr. Espino made repeated demands for payment from
respondent but the latter refused. Mr. Espino died in December
CANON 12 A LAWYER SHALL EXERT EVERY EFFORT AND
1996. His widow, complainant, then tried to collect from respondent the
CONSIDER IT HIS DUTY TO ASSIST IN THE SPEEDY AND
Page 185

value of the eight checks. When complainants numerous pleas remained

EFFICIENT ADMINISTRATION OF JUSTICE.
unheeded, she filed the complaint in June 1997.

Intelligentia et Scientia Semper Mea

LEGAL ETHICS
In his comment dated September 22, 1997, respondent denied any
wrongdoing, and said that the allegations that he had employed fraud,
trickery and dishonest means with the late Mr. Espino were totally false
and baseless. The complaint, according to respondent, stemmed from
complainants lack of knowledge as to the real story of the transaction
between complainants husband and respondent. He also vehemently
took exception to the imputation that he was banking on the influence of
his father-in-law and uncle-in-law.
Respondent does not deny the issuance of the eight checks. What
respondent claims, however, is that the nonpayment was justified by the
unresolved problems he and Mrs. Ares have with respect to the right-of-
way of the land. He alleged that Mr. Espino had made assurances that
the land had a right-of-way required for its development, but respondent
later found out that such road-right-of-way required the consent of four
other land owners, and the expense would be considerably more than
he was made to believe. According to respondent, he and Mr. Espino
had agreed that the latter would not encash the checks or demand the
equivalent of the same until the right-of-way problem of the land had
been resolved.[8] Respondents position is that until the problem of
obtaining a right-of-way to the land has been resolved, nothing has yet
accrued against him or Mrs. Ares (his partner), as it would be very unfair
and unjust for them to pay Mr. Espino when the land could not be
developed and sold.[9]
Respondent also alleged that he was entitled to set-off against the
amount he owes Mr. Espino or his heirs from the purchase of the land,
the advances he made to Mr. Espino, and the cost he incurred when he
defended Mr. Espinos son in a criminal case. He later on manifested that
he has fully paid the portion of the land which had been titled in his name
through the same advances and incurred expenses.[10]
In a resolution dated November 26, 1997,[11] the case was referred to the
Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation/decision, and assigned to the IBP-Commission on Bar
Discipline (CBD).
In the IBP-CBD report dated November 12, 2002,[12] Investigating
Commissioner Caesar R. Dulay found that the facts and credible
evidence made available in this case indubitably establish respondents
failure to live up to the demands of the Lawyers Code of Professional
Responsibility and the Canons of Professional Ethics. For having failed
to act with candor and fairness toward complainant, Commissioner Dulay
recommended that respondent be suspended from the practice of law
for six (6) months, and ordered to immediately account with complainant
regarding the sale of the piece of land which had been subdivided in the
name of respondent and his business partner. On June 21, 2003, the
Board of Governors of the IBP passed a Resolution adopting/approving
the Report and Recommendation of Commissioner Dulay, finding that
respondents lack of fairness and candor and honesty [was] in violation
of Rule 1.01 of the Code of Professional Responsibility.
After a careful consideration of the record of the instant case, we agree
that respondent was wanting in fairness, candor and honesty demanded
of him by the Code of Professional Responsibility and the Canons of
Professional Ethics. We find, however, the recommended penalty of six
(6) months suspension too light considering respondents gross
misconduct.
Complainants testimony and exhibits have clearly established that: (1)
there was an agreement between respondent and complainants late
husband for the sale of the latters land; (2) respondent had issued the
eight checks in connection with said agreement; (3) these checks were
dishonored and remain unpaid; and (4) the land sold had an existing
road-right-of-way.Complainants exhibits were formally offered as early
as January 6, 1999,[13] and were admitted without objection from
respondent.[14]
In the face of these uncontroverted facts, it was incumbent upon
respondent to prove a legal excuse or defense for nonpayment of the
eight checks.
Respondent utterly failed in this regard.
PINEDAPCGRNMAN
From the termination of complainants presentation of evidence on
December 1998 until Commissioner Dulays report on November 12,
2002, the records show that respondent was unable to present evidence
- either testimonial or documentary - to prove that he had legal cause to
refuse payment, or that he was entitled to legal compensation. Even
respondents own statements - which, without corroborating evidence,
remain mere self-serving allegations - fall short of testimony, as he failed
to submit to cross-examination by opposing counsel or for clarificatory
questions by the IBP-CBD. Worse, respondent attached eighteen
documents to his comment, but only went so far as to mark (without a
formal offer) the agreement between him and Mr. Espino (for the sale of
the land), and the partnership agreement between him and Mrs.
Ares. Thus, respondent had no evidence other than his own allegations.
Respondents failure to present evidence is a breach of Rule 12.01 of the
Code of Professional Responsibility,[15] especially in the light of the
numerous postponements and resettings he requested for and was
granted with, on the ground that he needed more time to prepare his
evidence. We note that respondent was first scheduled to present his
evidence on December 14, 1998. Two years - five resettings, and three
orders submitting the case for resolution - later, respondent still had not
proffered testimonial or documentary evidence.
Respondent claims that his failure to present evidence was due to his
financial difficulties, i.e., he could not afford to spend for travel expenses
of his witnesses.[16] We are not persuaded. First, it boggles the mind how
financial constraints could have prevented respondent from presenting
the originals of the documents attached to his comment, proving, among
others, the alleged advances and costs on Mr. Espinos behalf. The
originals of these documents are presumably in his possession. Second,
with respect to the absence of testimony, respondent could have
submitted the affidavits of his witnesses - the taking of which he could
have done himself in Cagayan de Oro to keep down the cost. The
records are clear that he was allowed this option.[17] But he did neither.
All these circumstances lead us to the ineluctable conclusion
that respondent could not present evidence because there really was
none to justify his nonpayment.[18]
Even if we were to excuse respondents procedural lapse and consider
his written pleadings as testimony, we agree with Commissioner Dulay
that respondents problems with respect to the right-of-way or his
partnership with Mrs. Ares do not excuse his nonpayment. As stated in
the IBP-CBD report:
[T]he solution to the right-of-way problem however clearly lies in the
hands of respondent.We note that respondent has already taken title
over the property together with Guadalupe Ares by making complainants
late husband, sign over the property by way of the Deed of Sale. We
therefore find respondents position vis--vis the widowed complainant
sneaky and unfair. We reiterate that respondent has assumed
responsibility for the negotiations on the road-right-of-way and was
aware of the problem. To [sic] our mind he has used the alleged road-
right-of-way problem only as an afterthought and a reason to delay and
in fact deny the complainant payment of what is due her. Respondent
also alleges and blames the deceased husband of complainant for the
failed project but the facts show otherwise. They are just bare allegations
and remain unsubstantiated. Besides, respondent and Ares took risks in
the business venture and are now the titled owners of the property. The
seller cannot be blamed for any failure in the project. Respondents
actuations in the whole transaction is [sic] not at par with the standards
demanded of him as a member of the bar. Respondent is lacking in
fairness and candour [sic] and honesty. The fact that he has
unreasonably delayed and failed to account with complainant for a long
time and the fact of his having allowed the checks he issued to bounce
is [sic] unacceptable and censurable behavior for a member of the
bar.[19] [citations omitted]
Having no legal defense to refuse payment of the eight dishonored
checks, respondents indifference to complainants entreaties for payment
Page 186
was conduct unbecoming of a member of the bar and an officer of the
court. Respondent violated the Code of Professional Responsibility by
Intelligentia et Scientia Semper Mea
LEGAL ETHICS PINEDAPCGRNMAN
his unlawful, dishonest and deceitful conduct towards complainant and to rule on the same related causes, asking the same
her late husband,[20] first by allowing the eight (8) checks he issued to relief.
bounce, then by ignoring the repeated demands for payment until Forum shopping constitutes DIRECT CONTEMPT of
complainant was forced to file this complaint, and finally by deliberately court and may subject the offending lawyer to
delaying the disposition of this case with dilatory tactics. Considering that disciplinary action.
the property of complainant and her late husband is already in Rule 12.03 A lawyer shall not, after obtaining extensions of time
respondent and Mrs. Ares name, the injustice of respondents different to file pleadings, memoranda or briefs, let the period lapse without
maneuvers to evade payment of the eight checks - due and unpaid since submitting the same or offering an explanation for his failure to do
1996 - becomes more manifest. so.
It should be stressed that respondent issued eight (8) worthless checks, Asking for extension of time must be in good faith.
seemingly without regard to its deleterious effects to public interest and
public order. We have already declared, most recently in Lao v. ATTY. ILUMINADA M. VAFLOR- A.C. No. 6273
Medel,[21] that the issuance of worthless checks constitutes gross FABROA,
misconduct, and puts the erring lawyers moral character in serious Complainant, Present:
doubt, though it is not related to his professional duties as a member of
the bar.[22] He not only sets himself liable for a serious criminal offense PUNO, C.J.,
under B.P. Blg. 22, but also transgresses the Code of Professional CARPIO,
Responsibility, specifically the mandate of Canon 1 to obey the laws of CORONA,
the land and promote the respect for law. - versus - CARPIO MORALES,
It behooves respondent to remember that a lawyer may be suspended VELASCO, JR.,
or disbarred for any misconduct, even if it pertains to his private activities, NACHURA,
as long as it shows him to be wanting in moral character, honesty, probity ATTY. OSCAR PAGUINTO, LEONARDO-DE
or good demeanor. Possession of good moral character is not only a Respondent. CASTRO,
good condition precedent to the practice of law, but a continuing BRION,
qualification for all members of the bar.[23] A lawyer may be disciplined PERALTA,
for any conduct, in his professional or private capacity, that renders him BERSAMIN,
unfit to continue to be an officer of the court.[24] Thus, the Code of DEL CASTILLO,
Professional Responsibility provides: ABAD,
Rule 1.01 A lawyer shall not engage in unlawful, dishonest, immoral or VILLARAMA, JR.,
deceitful conduct. PEREZ, and
xxx xxx xxx MENDOZA, JJ.
Rule 7.03 A lawyer shall not engage in conduct that adversely reflects
on his fitness to practice law, nor shall he, whether in public or private Promulgated:
life, behave in a scandalous manner to the discredit of the legal March 15, 2010
profession. x--------------------------------------------------x
Given the foregoing, and in line with jurisprudence involving lawyers who
issued worthless checks - Lao v. Medel,[25] Co v. DECISION
Bernardino,[26] and Ducat v. Villalon, Jr.,[27] - we find respondents
reprehensible conduct warrants suspension from the practice of law for CARPIO MORALES, J.:
one (1) year. An Information for Estafa[1] was filed on June 21, 2001 against
WHEREFORE, respondent ATTY. PEPITO C. PRESQUITO is found Atty. Iluminada M. Vaflor-Fabroa (complainant) along with others based
guilty of gross misconduct and is hereby SUSPENDED from the practice on a joint affidavit-complaint which Atty. Oscar Paguinto (respondent)
of law for one (1) year, and ORDERED to immediately account with prepared and notarized. As the joint affidavit-complaint did not indicate
complainant regarding the sale of the piece of land, which has been the involvement of complainant, complainant filed a Motion to Quash the
subdivided in the name of respondent and his business partner. Information which the trial court granted.[2] Respondents Motion for
Let a copy of this decision be spread in his file at the Office of the Bar Reconsideration of the quashal of the Information was denied[3]
Confidant and of the Integrated Bar of the Philippines.
SO ORDERED. Respondent also filed six other criminal complaints against complainant
for violation of Article 31 of Republic Act No. 6938 (Cooperative Code of
Rule 12.02 A lawyer shall not file multiple actions arising from the the Philippines) before the Office of the Provincial Prosecutor, but he
same cause. eventually filed a Motion to Withdraw them.[4]
Forum shopping omission to disclose pendency of
appeal or prior dismissal of his case by a court of On October 10, 2001, complainant, who was Chairperson of the General
concurrent jurisdiction. Mariano Alvarez Service Cooperative, Inc. (GEMASCO), received a
Forum shopping exists when as a result of an adverse Notice of Special General Assembly of GEMASCO on October 14, 2001
opinion in one forum: to consider the removal of four members of the Board of Directors (the
1. a party seeks favorable opinion (other than by appeal or Board), including her and the General Manager.[5] The notice was signed
certiorari) in another; or by respondent.
2. when he institutes two or more actions or proceedings
grounded on the same cause, on the gamble that one or At the October 14, 2001 Special General Assembly presided by
the other would make a favorable disposition (Benguet respondent and PNP Sr. Supt. Angelito L. Gerangco (Gerangco), who
Electric Corp. vs. Flores, 287 SCRA 449, March 12, 1998). were not members of the then current Board,[6] Gerango, complainants
The most important factor in determining the existence predecessor, as Chair of the GEMASCO board, declared himself Chair,
Page 187

of forum-shopping is the VEXATION caused the courts appointed others to replace the removed directors, and appointed
and party-litigants by a party who asks different courts respondent as Board Secretary.

Intelligentia et Scientia Semper Mea

LEGAL ETHICS
On October 15, 2001, respondent and his group took over the
GEMASCO office and its premises, the pumphouses, water facilities,
and operations. On even date, respondent sent letter-notices to
complainant and the four removed directors informing them of their
removal from the Board and as members of GEMASCO, and advising
them to cease and desist from further discharging the duties of their
positions.[7]
Complainant thus filed on October 16, 2001 with the Cooperative
Development Authority (CDA)-Calamba a complaint for annulment of the
proceedings taken during the October 14, 2001 Special General
Assembly.
The CDA Acting Regional Director (RD), by Resolution of February 21,
2002, declared the questioned general assembly null and void for having
been conducted in violation of GEMASCOs By-Laws and the
Cooperative Code of the Philippines.[8] The RDs Resolution of February
21, 2002 was later vacated for lack of jurisdiction[9] of CDA.
In her present complainant[10] against respondent for disbarment,
complainant alleged that respondent:
X X X PROMOTED OR SUED A GROUNDLESS, FALSE OR
UNLAWFUL SUIT, AND GAVE AID AND CONSENT TO THE SAME[11]
X X X DISOBEYED LAWS OF THE LAND, PROMOTE[D]
DISRESPECT FOR LAW AND THE LEGAL PROFESSION[12]
X X X DID NOT CONDUCT HIMSELF WITH COURTESY, FAIRNESS
AND CANDOR TOWARD HIS PROFESSIONAL COLLEAGUE AND
ENGAGED IN HARASSING TACTICS AGAINST OPPOSING
COUNSEL[13]
X X X VIOLATED CANON 19 A LAWYER SHALL REPRESENT HIS
CLIENT WITH ZEAL WITHIN THE BOUNDS OF THE LAW[14]
X X X RUINED AND DAMAGED NOT ONLY THE GEN. MARIANO
ALVAREZ SERVICES COOPERATIVE, INC. (GEMASCO, INC.) BUT
THE ENTIRE WATER-CONSUMING COMMUNITY AS WELL[15]
Despite the Courts grant,[16] on respondents motion,[17] of extension of
time to file Comment, respondent never filed any comment. The Court
thus required him to showcause why he should not be disciplinarily dealt
with,[18] but just the same he failed to comply.[19]
The Court thus referred the complaint to the Integrated Bar of the
Philippines (IBP) for investigation, report, and recommendation.[20]
It appears that during the mandatory conference before the IBP,
complainant proposed the following issues:
1. Whether or not the acts of respondent constitute violations of the
Code of Professional Responsibility, particularly the following:
1.1 Canon 1 A lawyer shall uphold the Constitution, obey the laws of the
land and promote respect for law and legal [processes].
1.2 Canon 8 A lawyer shall conduct himself with courtesy, fairness, and
candor toward his professional colleagues, and shall avoid harassing
tactics against opposing counsel.
1.3 Canon 10 A lawyer owes candor, fairness and good faith to the court.
1.4 Canon 19 A lawyer shall represent his client with zeal within the
bounds of the law.
PINEDAPCGRNMAN
1.5 Rule 12.03 A lawyer shall not, after obtaining extensions of time to
file pleadings, memoranda or briefs, let the period lapse without
submitting the same or offering an explanation for his failure to do so.
2. Whether or not the above acts of respondent constitute violations
of his lawyers oath, particularly the following:
2.1 support the Constitution and obey the laws as well as the legal orders
of the duly constituted authorities therein
2.2 will do no falsehood, nor consent to the doing of any in court
2.3 will not wittingly or willingly promote or sue any groundless, false or
unlawful suit, nor give aid nor consent to the same
2.4 will delay no man for money or malice
3. Whether or not the above acts of [respondent] complained of are
grounds for disbarment or suspension of attorneys by the Supreme Court
as provided for in Section 27, Rule 138 of the Revised Rules of Court.[21]
Respondents counsel who represented him during the conference
proposed the issue of whether, on the basis of the allegations of the
complaint, misconduct was committed by respondent.[22]
After the conclusion of the conference, both parties were ordered to
submit position papers.[23] Complainant filed hers,[24] but respondent,
despite grant, on his motion, of extension of time, did not file any position
paper.
In her Report and Recommendation,[25] Investigating Commissioner
Lolita A. Quisumbing found respondent guilty of violating the Lawyers
Oath as well as Canons 1, 8, 10, and Rule 12.03 of the Code of
Professional Responsibility. Noting that respondent had already been
previously suspended for six months, the Commissioner recommended
that respondent be suspended for two years.
The IBP Commission on Bar Discipline (CBD) Board of Governors opted
for the dismissal of the complaint, however, for lack of merit.[26]
On Motion for Reconsideration,[27] the IBP-CBD Board of Governors
recommended that respondent be suspended from the practice of law
for six months.
The Court finds that by conniving with Gerangco in taking over the Board
of Directors and the GEMASCO facilities, respondent violated the
provisions of the Cooperative Code of the Philippines and the
GEMASCO By-Laws. He also violated the Lawyers Oath, which provides
that a lawyer shall support the Constitution and obey the laws.
When respondent caused the filing of baseless criminal complaints
against complainant, he violated the Lawyers Oath that a lawyer shall
not wittingly or willingly promote or sue any groundless, false or unlawful
suit, nor give aid or consent to the same.
When, after obtaining an extension of time to file comment on the
complaint, respondent failed to file any and ignored this Courts
subsequent show cause order, he violated Rule 12.03 of the Code of
Professional Responsibility, which states that A lawyer shall not, after
obtaining extensions of time to file pleadings, memoranda or briefs, let
the period lapse without submitting the same or offering an explanation
for his failure to do so. Sebastian v. Bajar[28] teaches:
x x x Respondents cavalier attitude in repeatedly ignoring the orders of
Page 188
the Supreme Court constitutes utter disrespect to the judicial
institution. Respondents conduct indicates a high degree of
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
irresponsibility. A Courts Resolution is not to be construed as a mere
request, nor should it be complied with partially, inadequately, or
selectively. Respondents obstinate refusal to comply with the Courts
orders not only betrays a recalcitrant flaw in her character; it also
underscores her disrespect of the Courts lawful orders which is only too
deserving of reproof.
Lawyers are called upon to obey court orders and processes and
respondents deference is underscored by the fact that willful disregard
thereof will subject the lawyer not only to punishment for contempt but to
disciplinary sanctions as well. In fact, graver responsibility is imposed
upon a lawyer than any other to uphold the integrity of the courts and to
show respect to their processes.[29] (Citations omitted).
The Court notes that respondent had previously been suspended from
the practice of law for six months for violation of the Code of Professional
Responsibility,[30] he having been found to have received an acceptance
fee and misled the client into believing that he had filed a case for her
when he had not.[31] It appears, however, that respondent has not
reformed his ways. A more severe penalty this time is thus called for.
WHEREFORE, respondent, Atty. Oscar P. Paguinto,
is SUSPENDED for two years from the practice of law for violation of
Canons 1, 8, 10, and Rule 12.03 of the Code of Professional
Responsibility and the Lawyers Oath, effective immediately.
Let copies of this Decision be furnished the Office of the Bar Confidant,
to be appended to respondents personal record as an attorney; the
Integrated Bar of the Philippines; and all courts in the country for their
information and guidance.
SO ORDERED.
A.C. No. 7922 October 1, 2013
MARY ANN T.MATTUS, Complainant,
vs.
ATTY. ALBERT T. VILLASECA, Respondent.
DECISION
PER CURIAM:
Before us is a complaint for disbarment filed by complainant Mary Ann
T. Mattus against Atty. Albert T. Villaseca for gross and inexcusable
negligence in handling Criminal Case No. 10309-02.
Background Facts
The complainant, German Bernardo D. Mattus and Dexter Aligan were
the accused in Criminal Case No. 10309-02 a case for estafa thru
falsification of public document filed in the Regional Trial Court (RTC),
Branch 20, Imus, Cavite. The complainant and her husband, German,
engaged the services of Atty. Villaseca to represent them in the
proceedings. The complainant maintained that she and German were
convicted due to Atty. Villasecas gross and inexcusable negligence in
performing his duties as their counsel.
In her complaint-affidavit,1 the complainant alleged, among others, that
Atty. Villaseca: (1) was often absent during court hearings but still
collected appearance fees; (2) frequently sought the postponement of
trial when he was present; (3) failed to ask the RTC to direct a National
Bureau of Investigation expert to examine the signatures of the spouses
Leslie and Zuraida Porter2 in the special power of attorney (SPA); (4)
failed to file a demurrer to evidence despite having been granted
sufficient time by the RTC to submit one; (5) failed to present evidence
on behalf of the defense, and only filed a memorandum; (6) did not inform
her and German of the dates of the presentation of defense evidence
and the promulgation of judgment; and (7) erroneously indicated the
wrong case number in the notice of appeal. According to the
complainant, Atty. Villasecas negligence in handling the case resulted
in her own and her husbands conviction.
PINEDAPCGRNMAN
In the Courts Resolution3 of July 16, 2008, we required Atty. Villaseca
to comment on the complaint.
On September 10, 2008, Atty. Villaseca filed his comment,4 refuting the
allegations against him. Atty. Villaseca explained that he made known to
the complainant that the testimony of a handwriting expert was
necessary only if the prosecution would be able to produce the original
copy of the SPA. Atty. Villaseca also claimed that his absences during
the hearings, as well as his numerous motions for postponement, were
justified and were never intended for delay. He denied having collected
appearance fees when he did not attend the scheduled hearings, and
maintained that the fees he received were intended to compensate him
for his services in the other cases filed by the complainant. Atty. Villaseca
further claimed that he immediately corrected the case number in the
notice of appeal when he discovered this error.
In a Resolution5dated October 15, 2008, we referred the case to the
Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.
The IBPs Report and Recommendation
In his Report and Recommendation6 dated September 16,
2009,Investigating Commissioner Salvador B. Hababag recommended
that Atty. Villaseca be suspended for six (6) months from the practice of
law.
Commissioner Hababag ruled that Atty. Villasecas reckless and gross
negligence deprived his clients of due process; his actuations in the
criminal case showed utter disregard for his clients life and liberty.
Commissioner Hababag explained that Atty. Villaseca failed to file a
demurrer to evidence despite the sufficient length of time that had been
given to him by the RTC to submit this pleading, and waived his right to
present evidence for the defense, opting instead to file a memorandum
only. Commissioner Hababag concluded that Atty. Villasecas failure to
properly attend to the interests of his clients led to their conviction.
In Resolution No. XIX-2011-2517 dated May 14, 2011, the IBP Board of
Governors adopted and approved the findings of the Investigating
Commissioner, but increased Atty. Villasecas period of suspension from
the practice of law from six (6) months to one (1) year.
Our Ruling
After a careful review of the records, the Court finds the evidence on
record sufficient to support the IBPs findings. We, however, increase
Atty. Villasecas period of suspension from the practice of law from one
(1) year to five (5) years.
We stress at the outset that a lawyer "is expected to exert his best efforts
and ability to preserve his client's cause, for the unwavering loyalty
displayed to his client likewise serves the ends of justice." 8 Once a
lawyer agrees to take up the cause of a client, the lawyer owes fidelity to
such cause and must always be mindful of the trust and confidence
reposed in him. He owes entire devotion to the interest of the client, warm
zeal in maintenance and defense of his clients rights, and the exertion
of his utmost learning and ability to the end that nothing be taken or
withheld from his client, save by the rules of law, legally applied. A lawyer
who performs his duty with diligence and candor not only protects the
interest of his client; he also serves the ends of justice, does honor to the
bar, and helps maintain the respect of the community to the legal
profession.9
The records of the present case show that Atty. Villaseca had been
grossly remiss in handling Criminal Case No. 10309-02. To recall, Atty.
Villaseca requested for time to file demurrer to evidence after the
prosecution had rested its case. In its order 10 of July 1, 2004, the RTC
gave him 20 days from receipt of the transcript of stenographic notes
within which to file a demurrer to evidence. Atty. Villaseca, however, did
not file a demurrer to evidence, without offering any explanation why he
failed to do so. As a result, the RTC issued an order 11 stating that Atty.
Villaseca "is deemed to have waived his right to file the said pleading."
To our mind, Atty. Villasecas failure to submit a demurrer to evidence to
explain such omission constitutes inexcusable negligence; it showed his
Page 189
lack of devotion and zeal in preserving his clients cause. We point out
that nine months had lapsed from the time the RTC granted Atty.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Villaseca 20 days to file the demurrer to the time it ruled that he was
deemed to have waived his right to file this pleading. Clearly, Atty.
Villasecas actuations violated Rule 12.03 of the Code of Professional
Responsibility which states that "a lawyer shall not, after obtaining
extensions of time to file pleadings, memoranda or briefs, let the period
lapse without submitting the same or offering an explanation for his
failure to do so."
The records further disclosed that after Atty. Villasecas failure to file a
demurrer to evidence, the RTC set the initial presentation of defense
evidence on May 9, 2005. However, this hearing was postponed thrice:
the May 9, 2005 hearing was reset to August 8, 2005 due to Atty.
Villasecas failure to appear;12 the August 8, 2005 hearing was reset to
November 17, 2005 upon Atty. Villasecas motion;13 and the November
17, 2005 hearing was reset to March 1, 2006 because of Atty. Villasecas
manifestation that his intended first witness was unavailable.14During the
March 1, 2006hearing, the respondent manifested that the defense
would no longer present any evidence, and moved that he be given time
to file a memorandum.15
We point out that the prosecution rested its case on July 1, 2004; yet
Atty. Villaseca waited until March 1, 2006 only to manifest that he would
no longer present any evidence. We are at a loss why Atty. Villaseca
chose not to present any evidence for the defense, considering that the
accused wanted and were ready to take the witness stand. As a result,
the testimony of the lone prosecution witness remained uncontroverted.
To make matters worse, Atty. Villaseca directed German to attend the
hearing on June 6, 2007without informing him that it was already the date
of the promulgation of judgment.1wphi1
The Code of Professional Responsibility states that "a lawyer owes
fidelity to the cause of his client and he shall be mindful of the trust and
confidence reposed in him."16 It further mandates that "a lawyer shall
serve his client with competence and diligence."17 It also states that "a
lawyer shall not neglect a legal matter entrusted to him, and his
negligence in connection therewith shall render him liable."18
Atty. Villasecas failure to present any testimonial, object or documentary
evidence for the defense reveals his lack of diligence in performing his
duties as an officer of the Court; it showed his indifference towards the
cause of his clients. Considering that the liberty and livelihood of his
clients were at stake, Atty. Villaseca should have exerted efforts tore but
the presented prosecution evidence. He could have presented the
complainant and/or her husband to the witness stand, instead of just
opting to file a memorandum. Or, at the very least, the reason for this
move should have been fully explained to the clients, and later to the IBP
and to this Court. But no such explanation ever came. We are thus left
with the stark reality that Atty. Villaseca failed to file, despite the promise
made to the lower court, a demurrer to evidence. After failing in this first
line of defense for his clients, it should have been incumbent upon Atty.
Villaseca to present evidence for the defense, but again, he
unexplainably failed to do this, leaving the lower court with no evidence
to appreciate except that of the prosecution, to the detriment of his
clients cause.
We emphasize that while a lawyer has complete discretion on what legal
strategy to employ in a case entrusted to him, he must present every
remedy or defense within the authority of the law to support his clients
cause. A memorandum, no matter how lengthy, should not be made a
substitute for testimonial, object or documentary evidence, more so in a
criminal case where a conviction could lead to dire consequences. In
saying so, we are not insinuating that the RTC decision would have tilted
in favor of the defense had Atty. Villaseca presented evidence; we simply
stress that utmost fidelity and attention are demanded once counsel
agrees to take the cudgels for his client's cause.
We again remind members of the bar to live up to the standards and
norms expected of the legal profession by upholding the ideals and
principles embodied in the Code of Professional Responsibility. A lawyer
engaged to represent a client bears the responsibility of protecting the
latter's interest with utmost diligence. It is his duty to serve his client with
competence and diligence, and he should exert his best efforts to protect,
PINEDAPCGRNMAN
within the bounds of the law, the interests of his client.19 A lawyers
diligence and vigilance is more imperative in criminal cases, where the
life and liberty of an accused is at stake. Verily, the entrusted privilege to
practice law carries with it the corresponding duties, not only to the client,
but also to the court, to the bar and to the public. As we explained in
Spouses Bautista v. Atty. Arturo Cefra:20
The practice of law is a privilege bestowed by the State on those who
show that they possess the legal qualifications for it. Lawyers are
expected to maintain at all times a high standard of legal proficiency and
morality, including honesty, integrity and fair dealing. They must perform
their fourfold duty to society, the legal profession, the courts and their
clients, in accordance with the values and norms of the legal profession
as embodied in the Code of Professional Responsibility.
"The appropriate penalty on an errant lawyer depends on the exercise of
sound judicial discretion based on the surrounding facts."21 Under the
circumstances, we find that the IBPs recommended penalty of one
years suspension from the practice of law is not commensurate to Atty.
Villasecas transgressions. His incompetence and appalling indifference
to his duty to his client, the courts and society indicate a high degree of
irresponsibility that casts dishonor on the legal profession.
The present case finds a close forerunner in Santeco v. Atty.
Avance,22 where we suspended Atty. Luna B. Avance from the practice
of law for five(5) years for being grossly remiss in the performance of her
duties as counsel. In this cited case, the civil case entrusted to Atty.
Avance was dismissed for failure to prosecute. During the pendency of
her motion for reconsideration (which she had filed way beyond the
reglementary period), she told her client that she would file a petition for
certiorari before the CA to assail the dismissal of the civil case. She did
not file this petition, but failed to inform her client of this omission.
Moreover, Atty. Avance stopped appearing as counsel for her client
without notifying the latter.
Atty. Villasecas negligence in the present case had much graver
implications, as the legal matter entrusted to him involved not merely
money or property, but the very liberty and livelihood of his clients. We
stress that the moment Atty. Villaseca agreed to handle the
complainants criminal case, he became duty-bound to serve his clients
with competence and diligence, and to champion their cause with whole-
hearted fidelity. By failing to afford his clients every remedy and defense
that is authorized by the law, Atty. Villaseca fell short of what is expected
of him as an officer of the Court. We cannot overstress the duty of a
lawyer to uphold the integrity and dignity of the legal profession by
faithfully performing his duties to society, to the bar, to the courts and to
his clients.
All told, Atty. Villaseca showed a wanton and utter disregard to his
clients cause; his failure to exercise due diligence in attending to their
interest in the criminal case caused them grave prejudice. Under the
circumstances, we find a five-year suspension from the practice of law
to be a sufficient and appropriate sanction against him. The increased
penalty serves the purpose of protecting the interest of the Court, the
legal profession and the public.
WHEREFORE premises considered, we find Atty. Albert T. Villaseca
guilty of negligence, in violation of Rules 12.03 and 18.03 and Canon 17
of the Code of Professional Responsibility. He is hereby SUSPENDED
from the practice of law for five (5) years, effective upon his receipt of
this Decision, and STERNLY WARNED that a repetition of the same or
similar offense will be dealt with more severely.
Let a copy of this Decision be furnished to the Office of the Bar Confidant,
the Integrated Bar of the Philippines, and the Office of the Court
Administrator for circulation to all the courts.
SO ORDERED.
Rule 12.04 A lawyer shall not unduly delay a case, impede the
execution of a judgment or misuse court processes.
Page 190
G.R. No. 133090 January 19, 2001
Intelligentia et Scientia Semper Mea
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.
DE LEON, JR., J.:
Before us is a petition for review on certiorari of the Decision dated March
6, 1998 of the Court of Appeals1affirming the decision of the Regional
Trial Court of Cavite, Branch 90, Imus, Cavite, declaring petitioner Rexie
Efren A. Bugaring guilty in direct contempt of court.1wphi1.nt
The incident subject of the petition occurred during a hearing held on
December 5, 1996 of Civil Case NO. 1266-96 entitled "Royal
Becthel2 Builders, Inc. vs. Spouses Luis Alvaran and Beatriz Alvaran, et
al.", for Annulment of Sale and Certificates of Title, Specific Performance
and Damages with Prayer for Preliminary Injunction and/or Temporary
Restraining Order in the sala of respondent judge Dolores S. 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 Motion for Contempt of
Court.3
During the hearing of the motion for contempt of court held on December
5, 1996, the following incident transpired:
ATTY. For the plaintiff, your Honor, we are ready.
BUGARING:
ATTY. Same appearance for the defendant, your Honor.
CORDERO:
ATTY. Your Honor please, we are ready with respect to the
BUGARING: prosecution of our motion for contempt, your Honor.
May we know from the record if the Register of
Deeds is properly notified for today's hearing.
COURT: Will you call on the Register of Deeds.
INTERPRETER: Atty. Diosdado Concepcion, He is here, your Honor.
ATTY. We are ready, your Honor.
BUGARING:
COURT: There is a motion for contempt in connection with the
order of this Court which directed your office to
register lis pendens of the complaint in connection
with this case of Royal Becthel Builder, Inc. versus
spouses Luis Alvaran and Beatriz Alvaran, et al.
ATTY. Your Honor, I just received this morning at ten
CONCEPCION: o'clock [in the morning] the subpoena.
ATTY. May we put in on record that as early as November
BUGARING: 6, 1996, the Office of the Register of Deeds was
furnished with a copy of our motion, your Honor
please, and the record will bear it out. Until now they
did not file any answer, opposition or pleadings or
pleadings with respect to this motion.
ATTY. Well I was not informed because I am not the
CONCEPCION: 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
PINEDAPCGRNMAN
I was surprised when I received this morning the
subpoena, your Honor.
ATTY. Your Honor please, may we put that on record that
BUGARING: 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. Yes your Honor please, we know that but we want to
BUGARING: 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. Your Honor, my Assistant. I did not advise him to
BUGARING: 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. Actually, I did not instruct him to take some video
BUGARING: tape.
COURT: Why would he be bringing camera if you did not give
him the go signal that shots should be done.
ATTY. This Court should not presume that, your Honor
BUGARING: 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. In fact I instructed him to go out, your Honor.
BUGARING:
COURT: After the court have noticed that he is taking a video
tape.
ATTY. Yes, your Honor, in fact that is not my personal
BUGARING: problem your Honor please, that is personal to that
guy your Honor please if this representation is being
.
COURT: That is very shallow, don't give that alibi.
ATTY. At any rate, your Honor please, we are going to mark
BUGARING: our documentary evidence as part of our motion for
contempt, your Honor please.
COURT: What has the Register of Deeds got to say with this
matter?
ATTY. Well as I have said before, I have not received any
CONCEPCION: motion regarding this contempt you are talking. I am
willing now to testify.
ATTY. Your Honor I am still of the prosecution stage, it is
Page 191
BUGARING: not yet the defense. This is a criminal proceedings,
contempt proceedings is a criminal.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
ATTY. Your Honor please, may I ask for the assistance
CONCEPCION: 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. Can I appoint an outside lawyer not a Fiscal but a
CONCEPCION: private counsel, your Honor.
COURT: That is at your pleasure. The Court will consider that
you should be amply represented.
ATTY. As a matter of fact I have a lawyer here, Atty.
CONCEPCION: Barzaga if he is willing.
ATTY. Yes, your Honor, I will just review the records.
BARZAGA4:
ATTY. Anyway your Honor please, I will not yet present my
BUGARING: witness but I will just mark our documentary exhibits
which are part of the record of the case and
thereafter your Honor please.
COURT: You wait for a minute counsel because there is a
preparation being done by newly appointed counsel
of the respondent, Atty. Barzaga is considered as
the privately hired counsel of the register of deeds
and the respondent of this contempt proceedings.
How much time do you need to go over the record of
this case so that we can call the other case in the
meanwhile.
ATTY. Second call, your Honor.
BARZAGA:
---------------------------------------------------
----------------------------------------
COURT: Are you ready Atty. Barzaga?
ATTY. Yes, your Honor. Well actually your Honor, after
BARZAGA: reviewing the record of the case your Honor, I
noticed that the motion for contempt of Court was
filed on November 6, 1966 and in paragraph 6
thereof, your Honor it is stated that, 'the record of the
case shows up to the filing of this motion, the
Register as well as the Deputy Register Diosdado
Concepcion of the Office of the Register of Deeds of
the Province of Cavite, did not comply with the Court
Orders dated February 27, 1996, March 29, 1996,
respectively.' However, your Honor, Atty. Diosdado
Concepcion has shown to me a letter coming from
Atty. Efren A. Bugaring dated September 18, 1996
addressed to the Register regarding this notice of Lis
Pendens pertaining to TCT Nos. T-519248, 519249
and 519250 and this letter request, your Honor for
the annotation of the lis pendens clearly shows that
it has been already entered in the book of primary
entry. We would like also to invite the attention of the
Hon. Court that the Motion for Contempt of Court
was filed on November 6, 1996. The letter for the
annotation of the lis pendens was made by the
counsel for the plaintiff only on September 18, 1996,
your Honor. However, your Honor, as early as
August 16, 1996 an Order has already been issued
by the Hon. Court reading as follows, 'Wherefore in
view of the above, the motion of the defendant is
GRANTED and the Register of Deeds of the
Province of Cavite, is hereby directed to CANCEL
the notice of lis pendens annotated at the back of
Certificate of Title Nos. 519248, 51949 (sic) and
51950 (sic).'
PINEDAPCGRNMAN
ATTY. Your Honor please, may we proceed your Honor, will
BUGARING: 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. Considering your Honor, that the issues appear to
BUGARING: 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 1 have the
record please.
ATTY. Yes, your Honor.
BARZAGA:
COURT: This Court would like to be enlightened with respect
to that matter.
ATTY. Well, according to Atty. Diosdado Concepcion he
BUGARING: 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. Comment your Honor, on the motion to cite Atty.
BUGARING: Diosdado Concepcion in contempt of Court.
COURT: After the submission of the Comment and furnishing
a copy of the comment to the counsel for the plaintiff,
this Court is going to give the counsel for the plaintiff
an equal time within which to submit his reply.
ATTY. Your Honor please, it is the position of this
BUGARING: representation your Honor please, that we will be
marking first our documentary evidence because
this is set for hearing for today, your Honor please.
COURT: If you are going to mark your evidence and they do
not have their comment yet what are we going to
receive as evidence.
ATTY. If your Honor please
BUGARING:
COURT: Will you listen to the Court and just do whatever you
have to do after the submission of the comment.
ATTY. I am listening, your Honor please, but the record will
BUGARING: show that the motion for contempt was copy
Page 192
furnished with the Register of Deeds and Diosdado
Concepcion.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS PINEDAPCGRNMAN
COURT: Precisely, if you are listening then you will get what COURT: Yes, you know your rules that's why you are putting
the Court would want to do. This should be an the cart ahead of the horse.
orderly proceedings and considering that this is a
ATTY. No your Honor, I've been challenged by this Court
Court of record the comment has to be in first then
BUGARING: that I know better than this Court. Modestly (sic)
in your reply you can submit your evidence to rebut
aside your Honor please, I've been winning in many
the argument that is going to be put up by the
certiorari cases, your Honor.
respondent and so we will be able to hear the case
smoothly. 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.
ATTY. My point here your Honor please, is that the (Turning to the Sheriff)
BUGARING: respondent had been long time furnished of this ATTY. I am just manifesting and arguing in favor of my
contempt proceedings. With a copy of the motion BUGARING: client your Honor please.
they should have filed it in due time in accordance
with the rules and because it is scheduled for trial, COURT: You have been given enough time and you have
we are ready to mark our evidence and present to been abusing the discretion of this Court.
this Court, your Honor ATTY. I am very sorry your Honor, if that is the appreciation
COURT: (Banging the gavel) Will you listen. BUGARING: of the Court but this is one way I am protecting my
client, your Honor.
ATTY. I am listening, your Honor.
BUGARING: COURT: That is not the way to protect your client that is an
abuse of the discretion of this Court. (Turning to the
COURT: And this Court declares that you are out of order. Sheriff) "Will you see to it that this guy is put in jail."
ATTY. Well, if that is the contention of the Court your Honor (pp. 29-42. Rollo)
BUGARING: please, we are all officers of the Court, your Honor,
please, we have also ---- and we know also our Hence, in an Order dated December 5, 1996, Judge Espaol cited
procedure, your Honor. petitioner in direct contempt of court, thus:
COURT: If you know your procedure then you follow the During the hearing of this case, plaintiffs and counsel were present
procedure of the Court first and then do whatever together with one (1) operating a video camera who was taking pictures
you want. 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
ATTY. Yes, your Honor please, because we could feel the documentary evidence pursuant to his Motion to cite (in contempt of
BUGARING: antagonistic approach of the Court of this court) the Deputy Register of Deeds of Cavite, Diosdado Concepcion.
representation ever since I appeared your Honor The Court called the attention of said counsel who explained that he did
please and I put on record that I will be filing an not cause the appearance of the cameraman to take pictures, however,
inhibition to this Hon. Court. he admitted that they came from a function, and that was the reason why
COURT: Do that right away. (Banging the gavel) the said cameraman was in tow with him and the plaintiffs.
Notwithstanding the flimsy explanation given, the counsel sent out the
ATTY. Because we could not find any sort of justice in town.
cameraman after the Court took exception to the fact that although the
BUGARING:
proceedings are open to the public and that it being a court of record,
COURT: Do that right away. and since its permission was not sought, such situation was an abuse of
ATTY. We are ready to present our witness and we are discretion of the Court.
BUGARING: deprive to present our witness. When the respondent, Deputy Register of Deeds Concepcion
manifested that he needed the services of counsel and right then and
COURT: You have presented a witness and it was an adverse there appointed Atty. Elpidio Barzaga to present him, the case was
witness that was presented. allowed to be called again. On the second call, Atty. Burgaring started to
ATTY. I did not. insist that he be allowed to mark and present his documentary evidence
BUGARING: 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
COURT: With respect to this, the procedure of the Court is for Motion has so many ramifications and the issues are complicated.
the respondent to file his comment. At this point, Atty. Bugaring was insisting that he be allowed to mark his
ATTY. Well your Honor please, at this point in time I don't documentary evidence and was raring to argue as in fact he was already
BUGARING: want to comment on anything but I reserve my right perorating despite the fact that Atty. Barzaga has not yet finished with
to inhibit this Honorable Court before trying this his manifestation. As Atty. Bugaring appears to disregard orderly
case. procedure, the Court directed him to listen and wait for the ruling of the
Court for an orderly proceeding.
COURT: You can do whatever you want. While claiming that he was listening, he would speak up anytime he felt
ATTY. Yes, your Honor, that is our prerogative your Honor. like doing so. Thus, the Court declared him out of order, at which point,
BUGARING: Atty. Bugaring flared up the uttered words insulting the Court; such as:
'that he knows better than the latter as he has won all his cases of
COURT: As far as this Court is concerned it is going to follow
certiorari in the appellate Courts, that he knows better the Rules of Court;
the rules.
that he was going to move for the inhibition of the Presiding Judge for
ATTY. Yes, your Honor, we know all the rules. allegedly being antagonistic to his client,' and other invectives were
BUGARING:
Page 193

hurled to the discredit of the Court.

Thus, in open court, Atty. Bugaring was declared in direct contempt and
order the Court's sheriff to arrest and place him under detention.

Intelligentia et Scientia Semper Mea

LEGAL ETHICS
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 PETITIONER'S SUBMISSIONS SMACKS OF OPPRESSION AND
ABUSE OF AUTHORITY, HENCE IT COMMITTED A GRAVE ERROR
OF LAW IN ITS QUESTIONED DECISION.11
Petitioner insists that a careful examination of the transcript of
stenographic notes of the subject proceedings would reveal that the
contempt order issued by respondent judge had no factual and legal
basis. It would also show that he was polite and respectful towards the
court as he always addressed the court with the phrase "your honor
please."
We disagree.
Section 1, Rule 71 of the Rules of Court as amended by Administrative
Circular No. 22-95 provides:
Direct contempt punished summarily. A person guilty of misbehavior in
the presence of or so near a court or judge as to obstruct or interrupt the
proceedings before the same, including disrespect toward the court or
judge, offensive personalities toward others, or refusal to be sworn or to
answer as a witness, or to subscribe an affidavit or deposition when
lawfully required to do so, may be summarily adjudged in contempt by
such court or judge and punished by a fine not exceeding two thousand
pesos or imprisonment not exceeding ten (10) days, or both, if it be a
superior court, or a judge thereof, or by a fine not exceeding two hundred
pesos or imprisonment not exceeding one (1) day, or both, if it be an
inferior court.
We agree with the statement of the Court of Appeals that petitioner's
alleged deference to the trial court in consistently addressing the
respondent judge as "your Honor please" throughout the proceedings is
belied by his behavior therein:
PINEDAPCGRNMAN
1. the veiled threat to file a petition for certiorari against the trial court
(pp. 14-15, tsn, December 5, 1996; pp. 41-42, Rollo) is contrary to Rule
11.03, Canon 11 of the Code of Professional Responsibility which
mandates that "a lawyer shall abstain from scandalous, offensive or
menacing language or behavior before the Courts".
2. the hurled uncalled for accusation that the respondent judge was
partial in favor of the other party (pp. 13-14, tsn, December 5, 1996; pp.
40-41, Rollo) is against Rule 11.04, Canon 11 of the Code of
Professional Responsibility which enjoins lawyers from attributing to a
judge "motives not supported by the record or have no materiality to the
case".
3. behaving without due regard to the trial court's order to maintain order
in the proceedings (pp. 9-13, tsn, December 5, 1996; pp. 36-40, Rollo) I
in utter disregard to Canon 1 of the Canons of Professional Ethics which
makes it a lawyer's duty to "maintain towards the courts (1) respectful
attitude" in order to maintain its importance in the administration of
justice, and Canon 11 of the Code of Professional Responsibility which
mandates lawyers to "observe and maintain the respect due to the
Courts and to judicial officers and should insist on similar conduct by
others".
4. behaving without due regard or deference to his fellow counsel who at
the time he was making representations in behalf of the other party, was
rudely interrupted by the petitioner and was not allowed to further put a
word in edgewise (pp. 7-13, tsn, December 5, 1996; pp. 34-39, Rollo) is
violative of Canon 8 of the Code of Professional Ethics which obliges a
lawyer to conduct himself with courtesy, fairness and candor toward his
professional colleagues, and
5. The refusal of the petitioner to allow the Registrar of Deeds of the
Province of Cavite, through counsel, to exercise his right to be heard
(Ibid) is against Section 1 of Article III, 1997 Constitution on the right to
due process of law, Canon 18 of the Canons of Professional Ethics which
mandates a lawyer to always treat an adverse witness "with fairness and
due consideration," and Canon 12 of Code of Professional Responsibility
which insists on a lawyer to "exert every effort and consider it his duty to
assist in the speedy and efficient administration of justice."
The Court cannot therefore help but notice the sarcasm in the petitioner's
use of the phrase "your honor please." For, after using said phrase he
manifested utter disrespect to the court in his subsequent utterances.
Surely this behavior from an officer of the Court cannot and should not
be countenanced, if proper decorum is to be observed and maintained
during court proceedings.12
Indeed, the conduct of petitioner in persisting to have his documentary
evidence marked to the extent of interrupting the opposing counsel and
the court showed disrespect to said counsel and the court, was defiant
of the court's system for an orderly proceeding, and obstructed the
administration of justice. The power to punish for contempt is inherent in
all courts and is essential to the preservation of order in judicial
proceedings and to the enforcement of judgments, orders, and mandates
of the court, and consequently, to the due administrative of
justice.13 Direct contempt is committed in the presence of or so near a
court or judge, as in the case at bar, and can be punished summarily
without hearing.14 Hence, petitioner cannot claim that there was
irregularity in the actuation of respondent judge in issuing the contempt
order inside her chamber without giving the petitioner the opportunity to
defend himself or make an immediate reconsideration. The records show
that petitioner was cited in contempt of court during he hearing in the
sala of respondent judge, and he even filed a motion for reconsideration
of the contempt order on the same day.15
Petitioner argued that while it might appear that he was carried by his
emotions in espousing the case of his client by persisting to have his
documentary evidence marked despite the respondent judge's contrary
order he did so in the honest belief that he was bound to protect the
interest of his client to the best of his ability and with utmost diligence.
The Court of Appeals aptly stated:
Page 194
But "a lawyer should not be carried away in espousing his client's cause"
(Buenaseda v. Flavier, 226 SCRA 645, 656). He should not forget that
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
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
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).
"Lawyers should be reminded that their primary duty is to assist the
courts in the administration of justice. Any conduct which tends to delay,
impede or obstruct the administration of justice contravenes such
lawyer's duty."16
Although respondent judge was justified in citing petitioner in direct
contempt of court, she erred in imposing a fine in the amount of
P3,000.00 which exceeded the ceiling of P2,000.00 under Supreme
Court Administrative Circular No. 22-95 which took effect on November
16, 1995. It was not established that the fine was imposed in bad faith.
The Court of Appeals thus properly ordered the return of the excess of
P1,000.00. Aside from the fine, the three days imprisonment meted out
to petitioner was justified and within the 10-day limit prescribed in Section
1, Rule 71 of the Rules of Court, as amended.
It is our view and we hold, therefore, that the Court of Appeals did not
commit any reversible error in its assailed decision.
WHEREFORE, the assailed Decision dated March 6, 1998 of the Court
of Appeals is hereby AFFIRMED. The Regional Trial Court of Cavite,
Branch 90, Imus, Cavite is ordered to return to the petitioner, Rexie Efren
A. Bugaring, the sum of P1,000.00 out of the original fine of
P3,000.00.1wphi1.nt
SO ORDERED.
G.R. No. L-27662 October 29, 1968
MANILA PEST CONTROL, INC., petitioner,
vs.
WORKMEN'S COMPENSATION COMMISSION, ATANACIO A.
MARDO, as Chief Hearing Officer of Regional Officer of the
Department of Labor, CITY SHERIFF OF MANILA and MARIO
ABITRIA, respondents.
Manuel A. Corpuz for petitioner.
Pagano C. Villavieja and Cecilia E. Curso for public respondent Atanacio
A. Mardo.
Hector C. Regino for private respondent.
FERNANDO, J.:
This Court, in a resolution of June 21, 1967, was persuaded, regrettably
as it turned out, to give due course to acertiorari and prohibition
proceeding with a plea for preliminary injunction, a restraining order
being issued, in view of the rather vehement and earnest protestations
of petitioner Manila Pest ControI, Inc. that it was denied procedural due
process. As will be more fully explained, such is not the case at all.
More specifically, it was alleged that on February 24, 1967, respondent
Workmen's Compensation Commission, through its referee, considered
a complaint filed against it by the other respondent, Mario Abitria, for
compensation submitted for decision after he and a physician had
testified, petitioner's counsel having failed to appear at the hearing of
February 24, 1967.1 Then came, according to the petition, a motion for
reconsideration dated March 7, 1967, petitioner praying that he be
allowed to present evidence on his behalf.2 It was denied in an order of
April 4, 1967, as a decision had already been rendered against petitioner,
as employer, awarding respondent Abitria P6,000.00 as his disability
compensation benefit. It was also pointed out in such order that there
was no plea in such motion for reconsideration for such decision being
set aside, as it was limited to seeking an opportunity to cross-examine
the witnesses. It could not be granted as the matter was looked upon as
"moot and academic."3 It was then alleged in the petition that on April 11,
1967, a motion for reconsideration of the aforesaid order was filed with
the averment that petitioner was not aware of any decision rendered in
PINEDAPCGRNMAN
the case as no copy of the same had theretofore been furnished to its
counsel.4 After a denial of such motion for reconsideration on April 24,
1967, and a plea for execution on behalf of respondent Abitria, which
was granted on June 14, 1967, the City Sheriff of Manila, likewise made
a respondent, levied on petitioner's properties on June 14, 1967, by
virtue of the above writ of execution.5
It is petitioner's contention that in the light of the above alleged
infringement of procedural due process, the actuation of respondent
Commission was either in excess of its jurisdiction or with grave abuse
of discretion. That was the basis for the relief sought, seeking a writ of
preliminary injunction restraining City Sheriff of Manila, from proceeding
with the sale at public auction of petitioner's properties and after hearing,
annulling the aforesaid writ of execution and likewise all the proceedings
in RO4-WC Case No. 5503, thereafter making the injunction permanent,
and ordering respondent Abitria to pay petitioner the sum of P500.00 as
attorney'sfees. Thus was imparted more than just a semblance of
plausibility to the petition, deceptive in character, as subsequent
pleadings proved, but nonetheless insufficient to call for its summary
dismissal.
On June 21, 1967, this Court issued a resolution to this effect: "The
respondents in L-27662 (Manila Pest Control, Inc. vs. Workmen's
Compensation Commission, et al.) are required to file, within 10 days
from notice hereof, an answer (not a motion to dismiss) to the petition for
prohibition; let temporary restraining order issue, effective immediately
and until further orders from this Court."
The answer of respondent Workmen's Compensation Commission of
July 21, 1967 and the later pleadings, revealed quite a different story. It
is now quite clear that instead of being the offended party suffering from
a legitimate grievance, its right to due process having been summarily
disregarded, petitioner was not above resorting to every technicality the
law affords to evade the performance of an obligation, which under the
law it must fulfill, namely, to compensate for the serious and debilitating
ailment of tuberculosis acquired in the course of employment by
respondent Abitria. Accordingly, the petition for certiorari and prohibition
should be, as it is hereby, denied.
The facts as found by respondent Workmen's Compensation
Commission, which must be deemed conclusive, can yield no other
conclusion but the undeniable liability for compensation to respondent
Abitria on the part of petitioner. Thus: "From the recorded evidence, it
appears that claimant was employed with the respondent since February
4, 1956, working six (6) days a week and receiving an average monthly
wage of P180.00 as laborer for the respondent. He was assigned in the
Research Division which conducted research on rat traps and other
matters regarding extermination of pests, animals and insects. It was
testified to by the claimant and his witnesses that in the place of his
employment he was made to inhale dangerous fumes as the atmosphere
was polluted with poisonous chemical dusts. The working condition of
his place of work was also warm and humid in view of the products being
manufactured by the respondent. He was not extended any protective
device and he was also made to lift heavy objects in the painting and
soldering. In his soldering work muriatic acid and soldering paste [were]
used. Sometime in July, 1966 while the claimant was soldering [he]
began to experience symptoms of pulmonary tuberculosis. Because of
his spitting of blood or hemoptysis, he went to consult Dr. Felix Tuazon
of the Quezon Institute whose diagnosis was pulmonary tuberculosis,
chronic, active moderately advanced, right: minimal, left. He was
confined at the Quezon Institute under the care of Dr. Felix Tuazon.
According to the attending physician, he was admitted in the hospital
ward as a hemoptic patient or one who is bleeding from the lungs. When
he was admitted he was prescribed Vita K. ampules, bronocal, ablocid,
duestrep injections and other anti-TB drugs. His clinical history showed
that the claimant was diagnosed with severe coughing followed by
expectoration of fresh blood amounting to two glassful [when] he was
brought to the Philippine General Hospital and given injection and was
Page 195
X-rayed. From that hospital he was transferred to the Quezon Institute
where he was subsequently admitted. The attending physician testified
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
further that the right lung had bronchogenous lesions in the upper lobe
with honeycomb at 2nd and 3rd intercostal space, while the left lung had
fibrotic lesion behind the anterior rib II. ... He was discharged from the
Quezon Institute on September 3, 1966, but the illness was not yet
arrested although there was stopping of the hemoptysis. The doctor
testified on cross examination that the nature of work of the claimant
involving strenuous physical exertion and other factors of work such as
the lowering of his resistance in view of the enormous inhalation of
chemical fumes also brought about the aggravation of the claimant's
present condition. According to the claimant the respondent was duly
notified of his illness through the general manager and in view of the
respondent's refusal to pay him disability compensation despite repeated
demands, claimant filed this instant claim."6
The sole issue then, as accurately set forth in the above decision, was
"to determine in this case ... whether ... there is sufficient or substantial
evidence in support of the claim for disability compensation benefits
under the Workmen's Compensation Law. The evidence on record is
crystal clear that the claimant had already substantially proven his case
and all indications point that the illness of moderately advanced,
pulmonary tuberculosis was service connected in view of his work as
laborer involving strenuous physical exertion which brought about the
lowering of his resistance due to the massive inhalation of injurious
chemical fumes to the extent that he was made an easy prey to the
contraction of TB bacilli. The fact that there was no evidence on record
that claimant was sick upon entrance to his employment, it is presumed
that he was normal in every respect during the first period of his
employment and the disease of pulmonary tuberculosis showed only
during the later part of his employment when he was assigned in the
research division of the respondent. The attending physician himself
stated that claimant's exposure to his work aggravated the illness and
we believe that the respondent had failed to dispute the work connection
as there is no showing that claimant's ailment was due to the lowering of
his resistance by causes other than the nature of his work as laborer of
the respondent."7
It must be a realization that no valid defenses could be interposed that
prompted petitioner to rely on the alleged deprivation of due process, a
contention, which as will now be shown, is without basis.
The petition was so worded that the employer's right to be heard
appeared to have been disregarded. No further attention should be
accorded such an alleged grievance. If it did not introduce any evidence,
it had itself solely to blame. No fault could be attributed to respondent
Workmen's Compensation Commission. There must be such a
realization on the part of petitioner for its four-page memorandum
submitted in lieu of oral argument did not bother to discuss such a matter
at all. Accordingly, such a contention need not detain us further as it
ought never to have been raised in the first place.
Petitioner would make much however of the allegation that, as shown in
the answer of respondent Workmen's Compensation Commission,8 the
decision was sent to a certain Attorney Manuel Camacho but care of
petitioner's counsel, Attorney Manuel Corpuz. Petitioner would
emphasize that the one "officially furnished" with a copy of such decision
was not its counsel, who was without any connection with the aforesaid
Attorney Camacho. It would conclude, therefore, that it had not received
a copy of a decision which could not thereafter reach the stage of finality
calling for a writ of execution.
This contention was squarely met in the reply-memorandum of
November 6, 1967 of the Workmen's Compensation Commission. Why
it happened thus was explained in an affidavit of one of its employees, a
certain Gerardo Guzman, included therein.9 As set forth in such reply
memorandum: "As stated in the affidavit of Mr. Guzman, he went to the
office of Atty. Corpuz, on March 10, 1967 to deliver a copy of the decision
..., but Atty. Corpuz refused to receive the said decision alleging that he
was no longer handling the case. Atty. Corpuz, instead instructed Mr.
Guzman to deliver the said decision to Atty. Camacho since it was
already Atty, Camacho who was handling the case, and Atty. Camacho,
according to Atty. Corpuz, even had the records of the case."10In view of
PINEDAPCGRNMAN
such instruction, it was further noted, Guzman "went the office of Atty.
Camacho, but since Atty. Camacho was not around he handed the copy
of the decision to the receiving clerk therein, who received it as
evidenced by the stamp pad bearing the name of the Law Office of
Camacho, Zapa, Andaya & Associates on the attached true copy of the
Notice of Decision, ..."11
From which it could make the apt observation. "It is indeed sad to note
that after the Counsel for Petitioner refused to receive the copy of said
decision, he is now impugning the delivery of said decision to Atty.
Camacho and is denying knowledge of it when in fact and truth the
delivery of said decision to Atty. Camacho was made per his instruction
to Mr. Guzman, as evidenced by the attached affidavit of Mr. Guzman."12
In view of the rather persuasive character of such an affidavit and the
understandable reflection on the actuation of counsel for petitioner, there
was, as could be expected submitted by petitioner's counsel a rejoinder,
dated November 26, 1967. He would have this Court believe that the
reply-memorandum is contradicted by what appeared in respondents'
answer, where it was stated that a copy of the decision was received,
not by him but by the law office of a certain Attorney Camacho. He would
then ask why Guzman did not serve a copy of the decision to him. He
would even assume, for argument sake, that there was a refusal on his
part to accept a copy of this decision, but he would argue why did not
Guzman, who could be expected to know the duties of a service officer,
fail "to state said refusal in his official return."
Which of the above conflicting versions is entitled to credence? That of
respondent Workmen's Compensation Commission would appear to be
more in accordance with the realities of the situation. It is entitled to
belief.
This would not be the first time, in the first place, where out of excess of
zeal and out of a desire to rely on every conceivable defense that could
delay if not defeat the satisfaction of an obligation incumbent on one's
client, counsel would attempt to put the most favorable light on a course
of conduct which certainly cannot be given the stamp of approval. Not
that it would clear counsel of any further responsibility. His conduct
leaves much to be desired. His responsibility aside, it made evident why,
to repeat the effort to evade liability by petitioner by invoking the due
process guaranty must not be rewarded with success.
Under the above circumstances, no due process question arose. What
was done satisfied such a constitutional requirement. An effort was made
to serve petitioner with a copy of the decision; that such effort failed was
attributable to the conduct of its own counsel. True, there was a denial;
it is far from persuasive, as already noted. It does not have the ring of
truth. There is no reason why the decision would have been served on
some other counsel if there where no such misinformation, if there where
no such attempt to mislead.
No benefit would have accrued to respondent Workmen's Compensation
Commission. It was merely performing its official function. Certainly, it
could be expected to see to it that the law's beneficiaries were not
inconvenienced, much less frustrated, by its failure to follow the regular
procedure prescribed. It was unlikely that the employee entrusted with
serving a copy of the decision, in this particular case, and in this
particular case alone, would depart so radically from what the law
requires, if there were no such intervening cause that resulted in his
going astray. How could petitioner escape responsibility?
Petitioner, and petitioner alone, could be expected to furnish such a
cause. Who would benefit thereby? The answer cannot be in doubt.
Through such circumstance, wether intended or otherwise, a basis was
laid for at least a delay of the fulfillment of a just claim. For it is to be
noted that there is no, as there could not be any, valid ground for denying
compensation to respondent Abitria on the facts as found. Considering
how great and pressing the laborer's need for the compensation due him
was and the consequent temptation to settle for less if in the meanwhile,
the money he had the right to expect, was not forthcoming, petitioner, as
the employer liable, had everything to gain and nothing to lose by such
Page 196
a turn of events. Even if it were an honest mistake, the consequences
were still deplorable.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
It is quite revealing that in not one of the pleadings filed by petitioner did
it ever indicate how it could validly avoid its liability under the Workmen's
Compensation Commission which disclosed that the ailment suffered by
respondent Abitria while in its employment was indeed compensable.
Neither in its memorandum submitted on October 19, 1967 nor rejoinder
of November 21, 1967, did it ever occur to petitioner to allege that if given
the opportunity for hearing it could interpose a plausible, not to say a
valid defense. It did not do so because it could not do so. Our decisions
as to the undeniable liability of an employer similarly situated are
impressive for their number and unanimity.13
It would thus be grimly ironic if the due process concept, in itself an
assurance and a guaranty of justice and fairness, would be the very
vehicle to visit on a hapless and impoverished litigant injustice and
unfairness. The law itself would stand in disrepute, if such a gross
perversion of its dictates were allowed. Any other view is unthinkable.
Otherwise, there would be a stultification of all our efforts to promote
social justice14 and a mockery of the constitutional ideal of protection to
labor.15
Considering the above, it is not enough that petitioner be required to pay
forthwith the sum due respondent Abitria. The unseemly conduct, under
the above circumstances disclosed, of petitioner's counsel, Attorney
Manuel A. Corpuz calls for words of reproof.
It is one thing to exert to the utmost one's ability to protect the interest of
one's client. It is quite another thing, and this is to put it at its mildest, to
take advantage of any unforeseen turn of events, if not to create one, to
delay if not to defeat the recovery of what is justly due and demandable,
especially so, when as in this case, the obligee is a necessitous and
poverty-stricken man suffering from a dreaded disease, that
unfortunately afflicts so many of our countrymen and even more
unfortunately requires an outlay far beyond the means of our poverty
stricken masses.
The ancient and learned profession of the law stresses fairness and
honor; that must ever be kept in mind by everyone who is enrolled in its
ranks and who expects to remain a member in good standing. This
Tribunal is rightfully entrusted with the serious responsibility of seeing to
it that no deviation from such a norm should be countenanced. If what
occurred here would not be characterized for the shocking thing it was,
then it could be said that the law is less than fair and far from honorable.
What happens then to the ideal that only he is fit to belong to such a
profession who remains a faithful votary at the altar of justice? Such an
ideal may be difficult to approximate. That is true, but let it not be said
that when such a notorious breach of its lofty standard took place, as
unfortunately it did in this case, this Court exhibited magnificent
unconcern.
WHEREFORE, this petition for certiorari and prohibition with preliminary
injunction is denied. With treble costs against petitioner to be paid by his
counsel, Attorney Manuel A. Corpuz.
[A.C. No. 6289. December 16, 2004]
JULIAN MALONSO, complainant, vs. ATTY. PETE
PRINCIPE, respondent.
DECISION
TINGA, J.:
The duty of courts is not alone to see that lawyers act in a proper and
lawful manner; it is also their duty to see that lawyers are paid their just
and lawful fees. Certainly, no one, not even the Court can deny them that
right; there is no law that authorizes them to do so.[1]
In a Complaint[2] for disbarment dated 6 June 2001 filed before the
Integrated Bar of the Philippines (IBP), Julian Malonso claimed that Atty.
Pete Principe, without any authority entered his appearance as
Malonsos counsel in the expropriation proceedings initiated by the
National Power Corporation (NAPOCOR). In addition, he complained
that Atty. Principe, after illegally representing him in the said case,
claimed forty (40%) of the selling price of his land to the NAPOCOR by
way of attorneys fees and, further, in a Motion to Intervene, claimed to
be a co-owner of Malonsos property.[3]
PINEDAPCGRNMAN
In his Answer,[4] respondent replied that the services of his law office,
Principe Villano Villacorta and Clemente Law Offices, was engaged by
Samahan ng mga Dadaanan at Maapektuhan ng NAPOCOR, Inc.
(SANDAMA), through its President, Danilo Elfa, as embodied in
the Contract of Legal Services executed on 01 April 1997.[5] The
Contract states in part:
The parties mutually agree one with the other as follows:
I. SECOND PARTY engages the services of the FIRST PARTY as their
lawyer of the collection, claim, and/ or payment of just compensation of
its members with the NAPOCOR;
II. FIRST PARTY accepts the engagement; both parties further agree on
the following conditions:
A. Scope of Work - negotiation, legal documentation, attendance to court
proceedings and other related activities;
B. Payment of Fees is on contingent basis. No acceptance fees,
appearance and liaison fees;
C. The legal fees or payment to FIRST PARTY:
1. Forty (40%) Percent of the selling price between NAPOCOR and the
SANDAMA members; this forty (40%) [percent] is the maximum rate and
may be negotiated depending on the volume of work involved;
2. Legal Fees as stated above shall cover:
i.) Attorneys Fees of FIRST PARTY;
ii.) His representation expenses and commitment expenses;
iii.) Miscellaneous Expenses, etc.
D. Both parties agree to exert their best efforts to increase or secure the
best price from NAPOCOR.
Respondent claimed that complainant Malonso is a member of
SANDAMA and that said member executed a special power of
attorney[6] in favor of Elfa, which served as the latters authority to act in
behalf of Malonso. In the document, Malonso authorized Elfa in the
following manner:
Ako, si JULIAN M. MALONSO, nasa hustong gulang, may asawa,
Pilipino at naninirahan sa 92 New York St. Cubao, Q.C., sa pamamagitan
nito ay ITINATALAGA at BINIBIGYANG KAPANGYARIHAN si G.
DANILO V. ELFA, nasa hustong gulang, may asawa, Pilipino at
naninirahan sa 038 Dulong Bayan, San Jose del Monte, Bulacan, upang
gumanap at umakda para sa akin/amin upang gumawa tulad ng mga
sumusunod:
1. PANGASIWAAN, ISAAYOS at MAKIPAGKASUNDO (negotiate) para
sa pagbebenta ng akin/aming lupa, sa National Power Corp.
(NAPOCOR), na may Titulo Bilang T-229122, na nasasakupan ng
Dulong Bayan, San Jose del Monte, Bulacan;
2. TUMAYONG KINATAWAN O REPRESENTANTE ko/naming saan
man at ano man maging sa hukuman o alin man sa mga opisinang may
kinalaman hinggil sa aming nabanggit na pagbebenta ng akin/aming
lupa;
3. TUMANGGAP AT MAGSUMITE ng mga papeles na nauukol sa
lupang nabanggit sa Bilang 1;
4. GUMANAP ng ano man sa inaakala ni G. DANILO V. ELFA na
nararapat, matuwid at makabubuti para sa nabanggit sa Bilang 1;
5. NA sa pamamagitan ng kasunduan at kapasyahang ito ay binibigyan
ng karapatan at kapangyarihang lumagda sa lahat ng
papeles/dokumento si G. Danilo V. Elfa, ngunit sa isang pasubali na
HINDI KAILAN MAN SIYA DAPAT AT WALA SIYANG KARAPATANG
LUMAGDA S GANAP NA BENTAHAN (ABSOLUTE DEED OF SALE).
DITOY AKING IGINAGAWAD sa naturan naming kinatawan ang lahat
ng karapatang kumilos at magsagawa upang isakatuparan ang
kapangyarihang magbili sa bisa ng karapatang dito ay iginagawad sa
kanya nang kahalintulad nang kung kami, sa ganang aming sarili ang
mismong nagsasagawa, at ditoy AMING PINAGTITIBAY ang lahat ng
kanyang gawin na nasa aming naman ang lubos na karapatang siya ay
palitan o bawiin ang Gawad na Karapatang ito.
In his Reply,[7] Malonso reiterated that he did not authorize Elfa to act in
his behalf, considering that while the Contract of Legal Services entered
Page 197
into by Atty. Principe and Elfa was dated 01 April 1997, the special power
of attorney he executed bore a much later date, 27 November 1997.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Moreover, he could not have authorized Elfa to hire a lawyer in his behalf
since he already had his own lawyer in the person of Atty. Benjamin
Mendoza.
To counter this argument, Atty. Principe commented that the agreement
entered into by SANDAMA and his law firm is a continuing one and
hence, Malonso was within the coverage of the contract even if he
executed the special power of attorney on a later date. Likewise, as a
member of SANDAMA, Malonso is bound to honor the organizations
commitments.[8]
The Court adopts the chronological order of events as found by the IBP
Investigating Commissioner, Julio C. Elamparo:
In the early part of 1997, National Power Corp. (NPC for brevity)
instituted expropriation proceedings against several lot owners in
Bulacan including the complainant in this case.
On April 1, 1997, a Contract of Legal Services was entered into between
the law firm Principe Villano and Clemente Law Offices and SANDAMA,
Inc. (Samahan ng mga Dadaanan at Maapektuhan ng National Power
Corporation) represented by its President Danilo V. Elfa. SANDAMA is
the organization of lot owners affected by the expropriation proceedings.
Complainant is a member of this organization.
On November 27, 1997, complainant executed a Kasulatan ng
Pagbibigay Kapangyarihan in favor of Danilo Elfa appointing the latter as
the attorney-in-fact of the complainant on the matter of negotiation with
the NPC.
On December 21, 1999, NPCs Board of Directors approved the amicable
settlement of the expropriation cases by paying all the lot owners the
total of One Hundred Three Million Four Hundred Thirteen Thousand
Two Hundred Pesos (P103,413,200.00).
More that two (2) years after the expropriation cases were instituted and
while complainant was represented therein by Atty. Benjamin Mendoza,
or on January 18, 2000, respondent filed an Ex-Parte Motion to Separate
Legal Fees From Selling Price Between Plaintiffs and Defendants.
About ten days after respondent filed his motion to separate legal fees,
respondent filed his Notice of Entry of Appearance (dated January 28,
2000) claiming that respondent is the legal counsel of the complainant,
a defendant in said case.
On February 12, 2000, Sixty Nine (69) lot owners including the
complainant wrote a letter to NPC informing the latter that they have
never authorized Mr. Danilo Elfa to hire the services of the respondents
law firm to represent them in the expropriation cases.
On February 17, 2000, complainant filed an Opposition to respondents
entry of appearance and motion to separate legal fees.
On March 7, 2000, respondent filed a Notice of Attorneys Lien claiming
40% of the selling price of the properties being expropriated by NPC.
On April 10, 2000, respondent filed a Notice of Adverse Claim before the
Register of Deeds of Bulacan claiming 40% of the rights, title and interest
of the lot owners over their lots being expropriated including that of
complainant.
On November 20, 2000, respondent herein filed a Motion for Leave to
Intervene in the expropriation case claiming to be a co-owner of the
property being expropriated.
On February 26, 2001, respondent filed an Opposition to the
Compromise Agreement submitted by the lot owners and NPC for court
approval.
Because of the actions taken by the respondent, the execution of the
decision approving the compromise agreement between the lot owners
and the NPC was delayed.[9]
The Report found that the Contract of Legal Services is between
SANDAMA, a corporate being, and respondents law firm. SANDAMA is
not a party in all of the expropriation proceedings instituted by
NAPOCOR, neither does it claim co-ownership of the properties being
expropriated. Furthermore, the power of attorney was executed by
Malonso in favor of Elfa and not SANDAMA, and that said power of
attorney was executed after SANDAMA entered into the Contract of
Legal Services. Thus, the Report concluded that the right of co-
ownership could not be derived from the said documents.[10]
PINEDAPCGRNMAN
Likewise, the Report noted that the right of legal representation could not
be derived from the above-mentioned documents. A contract for legal
services between a lawyer and his client is personal in nature and cannot
be performed through intermediaries. Even Elfa, the attorney-in-fact of
Malonso, was never authorized to engage legal counsels to represent
the former in the expropriation proceedings. Moreover, SANDAMA is not
a party litigant in the expropriation proceedings and thus Atty. Principe
has no basis to interfere in the court proceeding involving its members.
The Investigating Commissioner concluded that from the evidence
presented by both parties, Atty. Principe was guilty of misrepresentation.
Atty. Principe was found to have violated Canon 3, Rule 3.01, Canon 10,
Rule 10.01 and Rule 12.04.[11] In representing himself as Malonsos and
the other lot owners legal counsel in the face of the latters opposition,
Atty. Principe was found to be guilty of gross or serious misconduct.
Likewise, his act of falsely claiming to be the co-owner of properties
being expropriated and his filing of several actions to frustrate the
implementation of the decision approving the compromise agreement
make his conduct constitutive of malpractice. The Report recommended
the penalty of two (2) years suspension from the practice of law. [12]
In its Resolution[13] dated 25 October 2003, the IBP Board of Governors
ordained:
RESOLUTION NO. XVI-2003-241
CBD Case No. 01-848
Julian Malonso v.
Atty. Pete Principe
RESOLVED to ADOPT AND APPROVE, as it is hereby ADOPTED and
APPROVED, the Report and Recommendation of the Investigating
Commissioner of the above-entitled case, herein made part of this
Resolution/Decision as Annex A; and, finding the recommendation fully
supported by the evidence on record and the applicable laws and
rules, with modification, and considering respondents violation of Rule
3.01 of Canon 3, Rule 10.01 of Canon 10 and Rule 12.04 of Canon 12
of the Code of Professional Responsibility, Atty. Pedro Principe is
hereby SUSPENDED from the practice of law for one (1) year.
In his Appeal Memorandum,[14] respondent claims that the Resolution
No. XVI-2003-241 has no factual and legal basis, the complaint having
been motivated by pure selfishness and greed, and the Resolution itself
invalid for having failed to comply with Rule 139-B of the Rules of
Court.[15] According to the respondent, the Investigating Commissioner
continued to investigate the instant case despite the lapse of three
months provided under Section 8 of Rule 139-B, without any extension
granted by the Supreme Court.[16] Moreover, in the subsequent review
made by the IBP Board of Governors, no actual voting took place but a
mere consensus, and the required number of votes provided by the
Rules was not secured considering that there were only five (5)
governors present.[17] Respondent opines that the actions of the IBP
Board were aimed at preventing him from pursuing his known intention
to run for IBP National President.[18]
We find for the respondent.
It is the duty of the Supreme Court to see to it that a lawyer accounts for
his behavior towards the court, his client, his peers in the profession and
the public. However, the duty of the Court is not limited to disciplining
those guilty of misconduct, but also to protecting the reputation of those
wrongfully charged, much more, those wrongfully found guilty.
On the other hand, the IBP is aimed towards the elevation of the
standards of the law profession, the improvement of the administration
of justice, and the enabling of the Bar to discharge its public responsibility
more effectively.[19] Despite its duty to police the ranks, the IBP is not
exempt from the duty to promote respect for the law and legal processes
and to abstain from activities aimed at defiance of the law or at lessening
confidence in the legal system.[20] Respect for law is gravely eroded
when lawyers themselves, who are supposed to be minions of the law,
engage in unlawful practices and cavalierly brush aside the very rules
formulated for their observance.[21] For the very same reasons, the Court
Page 198
cannot accept the explanation[22] of Atty. Carlos L. Valdez, Jr. on the non-
holding of a formal voting for respondents case that:
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Eventually, the Board reached a consensus to reduce the recommended
penalty from two years to one year suspension. Since there was already
a consensus, the Board did not hold a formal voting. A formal voting
became unnecessary inasmuch as it was obvious that the decision of
the Board became unanimous.
I assure the Honorable Justices of the Supreme Court that due process
was observed and the Rules governing the Disbarment and Discipline of
Attorneys were faithfully observed and complied with by the IBP Board
of Governors.
The procedures outlined by the Rules are meant to ensure that the
innocents are spared from the wrongful condemnation and that only the
guilty are meted out their just due. These rules cannot be taken lightly.[23]
This Court underscores the procedural transgression incurred by the IBP
Board when it issued Resolution No. XVI-2003-241 which was reached
through a mere consensus, and not through a formal voting, with the
required number of votes not secured. As to the issue of the protracted
investigation without the requisite permission from the Supreme Court to
extend the investigation period, we agree with respondent that no such
request was made to this Court.
The pertinent provisions of Rule 139-B read:
Sec. 8. Investigation. Upon joinder of issues or upon failure of the
respondent to answer, the Investigator shall, with deliberate speed,
proceed with the investigation of the case. He shall have the power to
issue subpoenas and administer oaths. The respondent shall be given
full opportunity to defend himself, to present witnesses on his behalf, and
be heard by himself and counsel. However, if upon reasonable notice,
the respondent fails to appear, the investigation shall proceed ex parte.
The Investigator shall terminate the investigation within three (3) months
from the date of its commencement, unless extended for good cause by
the Board of Governors upon prior application.
...
Sec. 12. Review and decision by the Board of Governors. (a)
(b) If the Board, by the vote of a majority of its total membership,
determines that the respondent should be suspended from the practice
of law or disbarred, it shall issue a resolution setting forth its findings and
recommendations which, together with the whole record of the case,
shall forthwith be transmitted to the Supreme Court for final action.
Relevantly, Sec. 6, Rule 139-A of the Rules of Court provides in part:
Sec. 6. Board of Governors. the Integrated Bar shall be governed by a
Board of Governors. Nine Governors shall be elected by the House of
Delegates from the nine Regions on the representation basis of one
Governor from each Region.
The Board shall meet regularly once every three months, on such date
and at such time and place as it shall designate. A majority of all the
members of the Board shall constitute a quorum to do business.
From these provisions, it is clear that before a lawyer may be suspended
from the practice of law by the IBP, there should be (1) a review of the
investigators report; (2) a formal voting; and (3) a vote of at least five (5)
members of the Board. The rationale for this rule is simple: a decision
reached by the Board in compliance with the procedure is the official
decision of the Board as a body and not merely as the collective view of
the individual members thereof. This is in keeping with the very nature of
a collegial body which arrives at its decisions only after deliberation, the
exchange of views and ideas, and the concurrence of the required
majority vote.[24] Thus, the vote of the majority would be necessary for
the validity of the Boards resolution. Without a vote having been taken,
Resolution No. XVI-2003-241 (CBD Case No. 01-848) is void and has
no effect.
The Court views with disapproval the fashion by which the IBP Board of
Governors, with a fellow lawyer and fellow governors reputation and
good name at stake, cavalierly brushed aside the procedural rules
outlined no less by this Court for the discipline and protection of its
members. The IBP, more than anyone, knows that the success of a
lawyer in his profession depends almost entirely on his reputation.
Anything, which will harm his good name, is to be deplored.[25] And yet
the IBP Board of Governors, despite clear evidence to the contrary, and
PINEDAPCGRNMAN
without any remorse, even asserted that due process was observed and
the Rules governing the Disbarment and Discipline of Attorneys were
faithfully observed and complied.
Normally, non-compliance with the procedural rules would result in the
remand of the case.[26] However, on many occasions, the Court, in the
public interest and the expeditious administration of justice, has resolved
actions on the merits instead of remanding them for further proceedings,
such as where the ends of justice would not be subserved by the remand
of the case, or when public interest demands an early disposition of the
case, or where the trial court had already received all the evidence of the
parties.[27] In view of the delay in resolving the instant complaint against
the respondent, and in the interest of justice and speedy disposition of
cases, the Court opts to resolve the same based on the records before
it.[28]
Before delving at length on the merits of the other aspect of the present
proceedings, there is need to dwell first on a dimension of expropriation
proceedings which is uniquely its own.
There are two stages in every action for expropriation. The first is
concerned with the determination by the courts of the authority of the
plaintiff to exercise the power of eminent domain and the propriety of its
exercise in the context of the facts involved in the suit. The second phase
is concerned with the determination by the court, with the assistance of
commissioners, of the just compensation for the property sought to be
taken which relates to the valuation thereof. The order fixing the just
compensation on the basis of the evidence before, and findings of, the
commissioners would be final and would dispose of the second stage of
the suit, leaving nothing more to be done by the Court regarding the
issue.[29] During this stage, the main bone of contention is the valuation
of the property concerned.
The second stage which involves the issue of just compensation is as
important, if not more, than the first stage which refers to the issue of
public purpose. But as it frequently happens, as in this case, the public
purpose dimension is not as fiercely contested. Moreover, in their quest
to secure what they believe to be the fair compensation of their property,
the owners seek inroads to the leverages of executive power where
compensation compromises are commenced and given imprimatur. In
this dimension, the services of lawyers different from the ordinary litigator
may prove to be handy or even necessary. Negotiations are mostly out
of court and relies, for most part, on the sagacity, persuasion, patience,
persistence and resourcefulness of the negotiator.
In the instant case, the trial court had already ruled on the valuation of
the properties subject of the expropriation, the same order which is
subject of the appeal filed by the NAPOCOR. Aware that it might take a
long time before the said appeal is finally resolved, and in view of the
delay in the adjudication of the case, the landowners and NAPOCOR
negotiated for a compromise agreement. To assist them, the
landowners, through SANDAMA and its president, Danilo Elfa, engaged
the services of a lawyer in the person of respondent. It is clear that
respondent was hired precisely for the negotiation phase of the case.
Now, on to the merits.
As a legal entity, a corporation has a personality distinct and separate
from its individual stockholders or members and from that of its officers
who manage and run its affairs.[30] The rule is that obligations incurred
by the corporation, acting through its directors, officers and employees,
are its sole liabilities.[31] Thus, property belonging to a corporation cannot
be attached to satisfy the debt of a stockholder and vice versa, the latter
having only an indirect interest in the assets and business of the
former.[32] Thus, as summed by the IBP investigator, respondent is the
lawyer of SANDAMA, but SANDAMA is not a party litigant in all of the
expropriation cases; thus respondent had no basis to interfere in the
court proceedings involving the members. But things are not as simple
as that.
A review of the records reveals that respondent had grounds to believe
that he can intervene and claim from the individual landowners. For one,
Page 199
the incorporation of the landowners into SANDAMA was made and
initiated by respondents firm so as to make negotiations with NAPOCOR
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
easier and more organized. SANDAMA was a non-stock, non-profit
corporation aimed towards the promotion of the landowners common
interest. It presented a unified front which was far easier to manage and
represent than the individual owners. In effect, respondent still dealt with
the members, albeit in a collective manner.
Second, respondent relied on the representation of Danilo Elfa, former
SANDAMA president and attorney-in-fact of the members, with whom he
entered into a contract for legal services. Respondent could not have
doubted the authority of Elfa to contract his firms services. After all, Elfa
was armed with a Board Resolution from SANDAMA, and more
importantly, individual grants of authority from the SANDAMA members,
including Malonso.
Third, the contract for legal services clearly indicated a contingent fee of
forty percent (40%) of the selling price of the lands to be expropriated,
the same amount which was reflected in the deed of assignment made
by the individual members of SANDAMA. Respondent could have easily
and naturally assumed that the same figure assigned to SANDAMA was
the same amount earmarked for its legal services as indicated in their
service contract. Being a non-stock, non-profit corporation, where else
would SANDAMA get the funds to pay for the legal fees due to
respondent and his firm but from the contribution of its members.
Lastly, respondents legal services were disengaged by SANDAMAs new
President Yolanda Bautista around the same time when the SANDAMA
members abandoned and disauthorized former SANDAMA president
Elfa, just when the negotiations bore fruit. With all these circumstances,
respondent, rightly or wrongly, perceived that he was also about to be
deprived of his lawful compensation for the services he and his firm
rendered to SANDAMA and its members. With the prevailing attitude of
the SANDAMA officers and members, respondent saw the immediate
need to protect his interests in the individual properties of the
landowners. The hairline distinction between SANDAMA and its
individual members interests and properties, flowing as it does from a
legal fiction which has evolved as a mechanism to promote business
intercourse but not as an instrument of injustice, is simply too tenuous,
impractical and even unfair in view of the circumstances.
Thus, the Court cannot hold respondent guilty of censurable conduct or
practice justifying the penalty recommended. While filing the claim for
attorneys fees against the individual members may not be the proper
remedy for respondent, the Court believes that he instituted the same
out of his honest belief that it was the best way to protect his interests.
After all, SANDAMA procured his firms services and was led to believe
that he would be paid for the same. There is evidence which tend to show
that respondent and his firm rendered legal and even extra-legal services
in order to assist the landowners get a favorable valuation of their
properties. They facilitated the incorporation of the landowners to
expedite the negotiations between the owners, the appraisers, and
NAPOCOR. They sought the assistance of several political personalities
to get some leverage in their bargaining with NAPOCOR. Suddenly, just
after concluding the compromise price with NAPOCOR and before the
presentation of the compromise agreement for the courts approval,
SANDAMA disengaged the services of respondents law firm.
With the validity of its contract for services and its authority disputed, and
having rendered legal service for years without having received anything
in return, and with the prospect of not getting any compensation for all
the services it has rendered to SANDAMA and its members, respondent
and his law firm auspiciously moved to protect their interests. They may
have been mistaken in the remedy they sought, but the mistake was
made in good faith. Indeed, while the practice of law is not a business
venture, a lawyer nevertheless is entitled to be duly compensated for
professional services rendered.[33] It is but natural that he protect his
interest, most especially when his fee is on a contingent basis.[34]
Respondent was disengaged by SANDAMA after a compromise
agreement was entered into by the lot owners and NAPOCOR.[35] Its
motions for separate legal fees as well as for intervention were dismissed
by the trial court. Prescinding from the ultimate outcome of an
independent action to recover attorneys fees, the Court does not see any
PINEDAPCGRNMAN
obstacle to respondent filing such action against SANDAMA or any of its
members. Any counsel, worthy of his hire, is entitled to be fully
recompensed for his services.[36] Such independent action may be the
proper venue to show entitlement to the attorneys fees he is claiming,
and for his client to refute the same. [37] If respondent could resort to such
separate action which obviously is more cumbersome and portends to
be more protracted, there is similarly no rhyme or reason to preclude him
from filing mere motions such as the ones he resorted to for the purpose
of providing what he perceives to be his legitimate claim. The bottom line
is that respondent is not proscribed from seeking recovery of attorneys
fees for the services he and his firm rendered to SANDAMA and its
members. As to whether he would succeed in the quest, that is another
story which obviously does not have to be resolved in this case.
The fact that the contract stipulates a maximum of forty percent (40%)
contingent fees does not make the contract illegal or unacceptable.
Contingent fees are not per se prohibited by law. Its validity depends, in
large measure, upon the reasonableness of the amount fixed as
contingent fee under the circumstances of the case. [38] Nevertheless,
when it is shown that a contract for a contingent fee was obtained by
undue influence exercised by the attorney upon his client or by any fraud
or imposition, or that the compensation is clearly excessive, the Court
must, and will protect the aggrieved party.[39]
WHEREFORE, this case is DISMISSED and considered CLOSED. The
Integrated Bar of the Philippines is enjoined to comply with the procedure
outlined in Rule 139-B in all cases involving the disbarment and discipline
of attorneys.
SO ORDERED.
Rule 12.05 A lawyer shall refrain from talking to his witness during
a break or recess in the trial, while the witness is still under
examination.
Rule 12.06 A lawyer shall not knowingly assist a witness to
misrepresent himself or to impersonate another.
Rule 12.07 A lawyer shall not abuse, browbeat or harass a witness
nor needlessly inconvenience him.
Rights and obligations of a witness a witness must answer
questions, although his answer may tend to establish a claim
against him. However, it is the right of a witness:
1. to be protected from irrelevant, improper, or insulting
questions and from harsh or insulting demeanor;
2. not to be detained longer than the interest of justice requires;
3. not to be examined except only as to matters pertinent to the
issue;
4. not to give any answer which will tend to subject him to a
penalty for an offense unless otherwise provided by law, or
5. nor to give answer which will tend to degrade his reputation,
unless it be to the very fact at issue or to a fact from which the
fact in issue would be presumed. But a witness must answer
to the fact of his previous final conviction for an offense. (Rule
132, Sec. 3, RRC)
RENERIO SAMBAJON, RONALD A.C. No. 7062
SAMBAJON, CRISANTO CONOS, [Formerly CBD Case No. 04-
and FREDILYN BACULBAS, 1355]
Complainants,
Present:
QUISUMBING, J., Chairperson,
- versus - CARPIO,
CARPIO MORALES,
TINGA, and
Page 200
VELASCO, JR., JJ.
Promulgated:
Intelligentia et Scientia Semper Mea
 LEGAL ETHICS PINEDAPCGRNMAN
ATTY. JOSE A. SUING, September 26, 2006 (same as Conos) 263,225.81
Respondent. 8.FREDELYN BACULBAS
(same as Conos) 263,225.81
x--------------------------------------------------- 9. RENEIRO SAMBAJON (same as Conos) 263,225.81
x Total Backwages P2,370,674.38

DECISION
CARPIO MORALES, J.:
Complainants, via a complaint[1] filed before the Integrated Bar of the
Philippines (IBP), have sought the disbarment of Atty. Jose A. Suing
(respondent) on the grounds of deceit, malpractice, violation of Lawyers
Oath and the Code of Professional Responsibility.[2]
Respondents are jointly and severally liable to pay the above-mentioned
backwages including the various monetary claims stated in the
Manifestation dated August 24, 1998 except payment of overtime pay
and to pay 10% attorneys fees of all sums owing to
complainants.[4] (Emphasis and underscoring supplied)
The Decision having become final and executory, the Labor Arbiter
issued on September 2, 2003 a Writ of Execution.[5]

Herein complainants were among the complainants in NLRC Case No.
00-0403180-98, Microplast, Inc. Workers Union, Represented by its
Union President Zoilo Ardan, et al. v. Microplast, Incorporated and/or
Johnny Rodil and Manuel Rodil, for Unfair Labor Practice (ULP) and
Illegal Dismissal, while respondent was the counsel for the therein
respondents. Said case was consolidated with NLRC Case No. 00-04-
03161-98, Microplast Incorporated v. Vilma Ardan, et al., for Illegal
Strike.
By Decision of August 29, 2001,[3] Labor Arbiter Ariel Cadiente Santos
dismissed the Illegal Strike case, and declared the employer-clients of
respondent guilty of ULP.Thus, the Labor Arbiter disposed:
WHEREFORE, premises considered, the complaint for illegal strike is
dismissed for lack of merit.
Respondents Microplast, Inc., Johnny Rodil and Manuel Rodil are
hereby declared guilty of Unfair Labor Practice for union busting and that
the dismissal of the nine (9) complainants are declared illegal. All the
respondents in NLRC Case No. 00-04-03161-98 for illegal dismissal are
directed to reinstate all the complainants to their former position with
full backwagesfrom date of dismissal until actual reinstatement
computed as follows:
In the meantime, on the basis of individual Release Waiver and
Quitclaims dated February 27, 2004 purportedly signed and sworn to by
seven of the complainants in the ULP and Illegal Dismissal case before
Labor Arbiter Santos in the presence of respondent, the Labor Arbiter
dismissed said case insofar as the seven complainants were concerned,
by Order dated March 9, 2004. [6]
Herein complainants, four of the seven who purportedly executed the
Release Waiver and Quitclaims, denied having signed and sworn to
before the Labor Arbiter the said documents or having received the
considerations therefor. Hence, spawned the administrative complaint at
bar, alleging that respondent, acting in collusion with his clients Johnny
and Manuel Rodil, frustrated the implementation of the Writ of Execution
by presenting before the Labor Arbiter the spurious documents.
In a related move, complainants also filed a criminal complaint for
Falsification against respondent, together with his clients Johnny and
Manuel Rodil, before the Prosecutors Office of Quezon City where it was
docketed as I.S. No. 04-5203.[7]
In his Report and Recommendation[8] dated September 27, 2005, IBP
Commissioner Salvador B. Hababag, who conducted an investigation of
the administrative complaint at bar, recommended that respondent be
faulted for negligence and that he be reprimanded therefor with warning,
in light of his following discussion:

xxxx
The issue to be resolved is whether or not respondent can be
3. CRISANTO CONOS disbarred for his alleged manipulation of four alleged RELEASE
Backwages: WAIVER AND QUITCLAIM by herein complainants who subsequently
Basic Wage: disclaimed the same as bogus and falsified.
2/21/98 10/30/99 = 20.30 mos.
P198.00 x 26 days x 20.30 = P104, 504.40 A lawyer takes an oath when he is admitted to the Bar. By doing so he
10/31/99 - 10/31/00 = 12 mos. thereby becomes an Officer of the Court on whose shoulders rests the
P223.50 x 26 days x 12 = 69, 732.00 grave responsibility of assisting the courts in the proper, fair, speedy and
11/01/00 - 8/30/01 = 10 mos. efficient administration of justice.
P250.00 x 26 days x 10 = 65,000.00
P239,236.40 Mindful of the fact that the present proceedings involve, on the one hand,
13th Month Pay: the right of a litigant to seek redress against a member of the Bar who
1/12 of P239,236.40 = 19,936.36 has, allegedly caused him damaged, either through malice or
SILP negligence, while in the performance of his duties as his counsel, and,
2/16/98 - 12/31/98 = 10.33 mos. on the other, the right of that member of the Bar to protect and preserve
P198.00 x 5 days x 10.33/ 12 = 852.22 his good name and reputation, we have again gone over and considered
1/1/99 - 12/31/99 = 12mos. [the] aspects of the case.
P223.50 x 5 days x 12/12 = 1,117.50
1/1/00 - 10/30/01 = 20 mos. All the cases protesting and contesting the genuineness, veracity and
P250.00 x 5 days x 20/12 = 2,083.33 due execution of the questioned RELEASE WAIVER AND QUITCLAIM
4,053.05 namely: Urgent Ex-Parte Motion to Recall, Appeal and Falsification
P263,225.81 are PENDING resolution in their respective venues. Arbiter Ariel
xxxx Cadiente Santos, who was supposed to know the identities of the herein
Page 201

complainants is not impleaded by the complainants when it was his

7. RONALD SAMBAJON

Intelligentia et Scientia Semper Mea

LEGAL ETHICS
solemn duty and obligation to ascertain true and real identities of person
executing Release Waiver with Quitclaim.
The old adage that in the performance of an official duty there is that
presumption of regularity unless proven otherwise, such was proven in
the January 28, 2005 clarificatory questioning . . . :
xxxx
. . . In the case at bar, the question of whether or not respondent
actually committed the despicable act would seem to be fairly
debatable under the circumstances.[9](Emphasis and underscoring
supplied)
The Board of Governors of the IBP, by Resolution No. XVII-2005-226,
approved and adopted the Report and Recommendation of
Commissioner Hababag.
After the records of the case were forwarded to the Office of the Bar
Confidant (OBC), the Director for Bar Discipline of the IBP[10] transmitted
additional records including a Motion to Amend the Resolution No. XVII-
2005-226[11] filed by respondent.
One of the complainants, Renerio Sambajon (Sambajon), by
Petition[12] filed before the OBC, assailed the IBP Board Resolution. The
Petition was filed three days after the 15-day period to assail the IBP
Resolution. Sambajon explains that while his counsel received the
Resolution on February 27, 2006, he only learned of it when he visited
on March 16, 2006 his counsel who could not reach him, he (Sambajon)
having transferred from one residence to another.
Giving Sambajon the benefit of the doubt behind the reason for the 3-
day delay in filing the present petition, in the interest of justice, this Court
gives his petition due course.
In respondents Motion to Amend the IBP Board Resolution, he does not
deny that those whom he met face to face before Commissioner
Hababag were not the same persons whom he saw before Labor Arbiter
Santos on February 27, 2004. [13] He hastens to add though that he was
not familiar with the complainants as they were not attending the
hearings before Arbiter Santos.[14] Complainants[15] and their former
counsel Atty. Rodolfo Capocyan[16] claim otherwise, however. And the
Minutes[17] of the proceedings before the National Conciliation Mediation
Board in a related case, NCMB-NCR-NS-02-081-98, Re: Microplast,
Inc., Labor Dispute, which minutes bear respondents and complainants
signatures, belie respondents claim that he had not met complainants
before.
Respondent, who declared that he went to the Office of the Labor Arbiter
on February 27, 2004 on the request of his clients who told him that on
February 27, 2004 the seven claimants w[ould] be at the office of Arbiter
Santos [to] submit their respective quitclaims and waivers, heaps on the
Labor Arbiter the responsibility of ascertaining the identity of the parties
who executed the Release Waiver and Quitclaims. But respondent
himself had the same responsibility. He was under obligation to protect
his clients interest, especially given the amount allegedly given by them
in consideration of the execution of the documents. His answers to the
clarificatory questions of Commissioner Hababag do not, however, show
that he discharged such obligation.
COMM. HABABAG:
But is it not a fact [that it is] also your duty to ask.. that the money of your
client would go to the deserving employee?
ATTY. SUING:
PINEDAPCGRNMAN
I did not do that anymore, Your Honor, because there was already as
you call it before a precedent in February of 1998 when my client directly
made settlement to the nine or eight of the seventeen original
complainants, Your Honor, and I did not participate. Hindi po ako
nakialam don sa kanilang usapan because it is my belief that the best
way, Your Honor, to have a dispute settled between the parties is that
we let them do the discussion, well let them do the settlement because
sometimes you know, Your Honor, sad to say, when lawyers are involved
in a matters [sic] of settlement the dispute does not terminate as in this
case, Your Honor.
xxxx
COMM. HABABAG:
Yes. What made you appear on said date and time before Arbiter
Santos?
ATTY. SUING:
I was called by my client to go to the office of Arbiter Santos, number
one, to witness the signing of the documents of Quitclaim and Waiver;
number 2, so that according to them someone as a lawyer will represent
them in that proceedings.
COMM. HABABAG:
My query, did it not surprise you that no money was given to you and yet
there would be a signing of Quitclaim Receipt and Release?
ATTY. SUING:
I am not, your Honor, because it happened before and there were no
complaints, Your Honor.
COMM. HABABAG:
Just because it happened before you did not bother to see to it that there
is a voucher so you just rely on your precedent, is that what you mean?
ATTY. SUING:
Yes, Your Honor, because I always believe that the parties who are
talking and it is my client who knows them better than I do, Your Honor.
COMM. HABABAG:
So, you just followed the instruction of your client to be present at Arbiter
Cadiente Santos office because there would be signing of Quitclaim
Receipt and Release, it that clear?
ATTY. SUING:
Yes, Your Honor.
COMM. HABABAG:
[You] [d]id not bother to ask your client where is the
money intended for the payment of these workers?
ATTY. SUING:
I did not ask.
COMM. HABABAG:
Page 202
You did not asked [sic] your client who will prepare the documents?
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
ATTY. SUING:
As far as the documents are concerned, Your Honor.
COMM. HABABAG:
The Quitclaim Receipt and Release?
ATTY. SUING:
Yes, Your Honor, I remember this. They asked me before February of
1998.
COMM. HABABAG:
When you say they whom are you referring to?
ATTY. SUING:
Im referring to my client, Your Honor.
COMM. HABABAG:
They asked me attorney can you please prepare us a document of
Quitclaim and Waiver or give us a simple [sic] of Quitclaim and Waiver. I
do recall that I made one but this document, Your Honor, is only a single
document where all the signatories named are present because my
purpose there really, Your Honor, is that so that each of them will be
there together and they will identify themselves, see each other para ho
siguradong sila-sila yong magkakasama at magkakakilanlan. x x x x
And when the signing took place in February of 2004 it was made for any
[sic] individual, Your Honor, no longer the document that I prepared
when all of the seven will be signing in one document.
COMM. HABABAG:
Okay. You did not inquire from your client whom [sic] made the changes?
ATTY. SUING:
I did not anymore because, Your Honor, at the time when I was there,
there are already people there, the seven complainants plus another
woman.[18] (Emphasis and underscoring supplied)
The Code of Professional Responsibility provides:
CANON 17 A LAWYER OWES FIDELITY TO THE CAUSE OF HIS
CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND
CONFIDENCE REPOSED IN HIM.
CANON 18 - A LAWYER SHALL SERVE HIS CLIENT WITH
COMPETENCE AND DILIGENCE.
xxxx
Rule 18.03 - A lawyer shall not neglect a legal matter entrusted to him,
and his negligence in connection therewith shall render him liable.
To be sure, respondents client Manuel Rodil did not request him to go to
the Office of Labor Arbiter Cadiente to be a mere passive witness to the
signing of the Release Waiver and Quitclaims. That he was requested to
go there could only mean that he would exert vigilance to protect his
clients interest. This he conceded when he acknowledged the purpose
of his presence at the Office of Labor Arbiter Santos, thus:
ATTY. SUING:
To go there, Your Honor, and represent them and see that these
document[s] are properly signed and that these people are properly
identified and verified them in front of Arbiter Ariel Cadiente
Santos.[19] (Emphasis and underscoring supplied)
That there was an alleged precedent in 1998 when a group of
complainants entered into a compromise agreement with his clients in
which he did not participate and from which no problem arose did not
excuse him from carrying out the admitted purpose of going to the Labor
Arbiters office that [the complainants] are properly identified . . . in front
of [the] Arbiter.
PINEDAPCGRNMAN
Besides, by respondents own information, Labor Arbiter Santos was
entertaining doubts on the true identity of those who executed the
Release Waiver and Quitclaims.[20]That should have alerted him to
especially exercise the diligence of a lawyer to protect his clients
interest. But he was not and he did not.
Diligence is the attention and care required of a person in a given
situation and is the opposite of negligence. A lawyer serves his client
with diligence by adopting that norm of practice expected of men of good
intentions. He thus owes entire devotion to the interest of his client, warm
zeal in the defense and maintenance of his rights, and the exertion of his
utmost learning, skill, and ability to ensure that nothing shall be taken or
withheld from him, save by the rules of law legally applied. It is axiomatic
in the practice of law that the price of success is eternal diligence to the
cause of the client.
The practice of law does not require extraordinary diligence (exactissima
diligentia) or that extreme measure of care and caution which persons of
unusual prudence and circumspection use for securing and preserving
their rights. All that is required is ordinary diligence (diligentia) or that
degree of vigilance expected of a bonus pater familias. x x x[21] (Italics in
the original; underscoring supplied)
And this Court notes the attempt of respondent to influence the answers
of his client Manuel Rodil when the latter testified before Commissioner
Manuel Hababag:
COMM. HABABAG:
May pinirmahan dito na Quitclaim Receipt and Release. Ito ho ba sinong
may gawa nitong Receipt Waiver and Quitclaim?
MR. RODIL:
Sila po.
COMM. HABABAG:
Ibig mong sabihin ibinigay sa yo to ng complainant o sinong nag-abot sa
iyo nitong Receipt Waiver and Quitclaim?
MR. RODIL:
Si Atty. Suing po.
ATTY. SUING:
In fact, ang tanong sa iyo kung ibinigay daw sa iyo yong mga
dokumentong ito or what?
COMM. HABABAG:
Okay, uulitin ko ha, tagalog na ang tanong ko sa iyo ha hindi na English.
Ito bang Release Waiver and Quitclaim sino ang may gawa nito, sino
ang nagmakinilya nito?
MR. RODIL:
Kami yata ang gumawa niyan.
COMM. HABABAG:
Pag sinabi mong kami yata ang may gawa sino sa inyong mga officer,
tauhan o abogado ang gumawa nito?
MR. RODIL:
Matagal na ho yan eh.
xxxx
Page 203
COMM. HABABAG:
Intelligentia et Scientia Semper Mea
LEGAL ETHICS PINEDAPCGRNMAN
Okay. Pangalawang gusto kong itanong. Sino ang naghatid nito kay Ariel MR. RODIL:
Cadiente Santos para pirmahan ni Ariel Cadiente Santos? Yan ang hindi ko matandaan.
MR. RODIL:
Si attorney po. x x x x[22] (Emphasis and underscoring supplied)

ATTY. SUING: Thus, not only did respondent try to coach his client or influence him to
Wait. I did not bring the documents. The Commissioner is asking kung answer questions in an apparent attempt not to incriminate him
sino ang nagdala ng mga dokumento? (respondent). His client contradicted respondents claim that the Release
MR. RODIL: Waiver and Quitclaim which he (respondent) prepared was not the one
Yong mga tao. presented at the Arbiters Office, as well as his implied claim that he was
not involved in releasing to the complainants the money for and in
xxxx consideration of the execution of the documents.

COMM. HABABAG: As an officer of the court, a lawyer is called upon to assist in the
Simple ang tanong ko ha. Intindihin mo muna. Kanino mo inabot administration of justice. He is an instrument to advance its cause. Any
ang bayad sa nakalagay dito sa Release waiver and Quitclaim? act on his part that tends to obstruct, perverts or impedes the
administration of justice constitutes misconduct.[23] While the
MR. RODIL: Commission on Bar Discipline is not a court, the proceedings therein are
Kay attorney po. nonetheless part of a judicial proceeding, a disciplinary action being in
reality an investigation by the Court into the misconduct of its officers or
an examination into his character.[24]
COMM. HABABAG:
Pag sinabi mong kay attorney sinong tinutukoy mong attorney? In Bantolo v. Castillon, Jr.[25] the respondent lawyer was found guilty of
gross misconduct for his attempts to delay and obstruct the investigation
ATTY. SUING: being conducted by the IBP. Nonetheless, this Court found that a
Yong ibinigay na pera pambayad saan, yon ang tanong. suspension of one month from the practice of law was enough to give
him the opportunity to retrace his steps back to the virtuous path of the
legal profession.
COMM. HABABAG: While the disbarment of respondent is, under the facts and
Sundan mo ang tanong ko ha. Ako ang nagtatanong hindi ang abogado circumstances attendant to the case, not reasonable, neither is
mo. reprimand as recommended by the IBP. This Court finds that
respondents suspension from the practice of law for six months is in
MR. RODIL: order.
Opo.
WHEREFORE, respondent, Atty. Jose A. Suing, is found GUILTY of
COMM. HABABAG: negligence and gross misconduct and is SUSPENDED from the practice
Huwag kang tatawa. Im reminding you serious tayo dito. of law for a period of Six (6) Months, with WARNING that a repetition of
the same or similar acts will be dealt with more severely.
MR. RODIL:

Opo serious po.

COMM. HABABAG: Let a copy of this Decision be furnished the Office of the Bar Confidant,
the Integrated Bar of the Philippines, and all courts throughout the
Sabi mo may inabutan kang taong pera? country.

MR. RODIL: SO ORDERED.

Opo.
PRESIDENTIAL DECREE No. 1829
COMM. HABABAG: PENALIZING OBSTRUCTION OF APPREHENSION AND
PROSECUTION OF CRIMINAL OFFENDERS
Ang sagot mo kay attorney. Sinong attorney ang tinutukoy mo?
WHEREAS, crime and violence continue to proliferate despite the
MR. RODIL: sustained vigorous efforts of the government to effectively contain them;
Atty. Suing po. WHEREAS, to discourage public indifference or apathy towards the
apprehension and prosecution of criminal offenders, it is necessary to
COMM. HABABAG: penalize acts which obstruct or frustrate or tend to obstruct or frustrate
Okay. the successful apprehension and prosecution of criminal offenders;
NOW, THEREFORE, I, FERDINAND, E. MARCOS, President of the
ATTY. SUING: Philippines, by virtue of the powers vested in me by law do hereby decree
Your Honor, and order the following:
Section 1. The penalty of prision correccional in its maximum period, or
COMM. HABABAG: a fine ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon
Pabayaan mo muna. Ill come to that. Magkano kung iyong natatandaan any person who knowingly or willfully obstructs, impedes, frustrates or
Page 204

ang perang inabot kay Atty. Suing? delays the apprehension of suspects and the investigation and
prosecution of criminal cases by committing any of the following acts:

Intelligentia et Scientia Semper Mea

LEGAL ETHICS
(a) preventing witnesses from testifying in any criminal proceeding or
from reporting the commission of any offense or the identity of any
offender/s by means of bribery, misrepresentation, deceit, intimidation,
force or threats;
(b) altering, destroying, suppressing or concealing any paper, record,
document, or object, with intent to impair its verity, authenticity, legibility,
availability, or admissibility as evidence in any investigation of or official
proceedings in, criminal cases, or to be used in the investigation of, or
official proceedings in, criminal cases;
(c) harboring or concealing, or facilitating the escape of, any person he
knows, or has reasonable ground to believe or suspect, has committed
any offense under existing penal laws in order to prevent his arrest
prosecution and conviction;
(d) publicly using a fictitious name for the purpose of concealing a crime,
evading prosecution or the execution of a judgment, or concealing his
true name and other personal circumstances for the same purpose or
purposes;
(e) delaying the prosecution of criminal cases by obstructing the service
of process or court orders or disturbing proceedings in the fiscal's offices,
in Tanodbayan, or in the courts;
(f) making, presenting or using any record, document, paper or object
with knowledge of its falsity and with intent to affect the course or
outcome of the investigation of, or official proceedings in, criminal cases;
(g) soliciting, accepting, or agreeing to accept any benefit in
consideration of abstaining from, discounting, or impeding the
prosecution of a criminal offender;
(h) threatening directly or indirectly another with the infliction of any
wrong upon his person, honor or property or that of any immediate
member or members of his family in order to prevent such person from
appearing in the investigation of, or official proceedings in, criminal
cases, or imposing a condition, whether lawful or unlawful, in order to
prevent a person from appearing in the investigation of or in official
proceedings in, criminal cases;
(i) giving of false or fabricated information to mislead or prevent the law
enforcement agencies from apprehending the offender or from protecting
the life or property of the victim; or fabricating information from the data
gathered in confidence by investigating authorities for purposes of
background information and not for publication and publishing or
disseminating the same to mislead the investigator or to the court.
If any of the acts mentioned herein is penalized by any other law with a
higher penalty, the higher penalty shall be imposed.
Section 2. If any of the foregoing acts is committed by a public official or
employee, he shall in addition to the penalties provided thereunder,
suffer perpetual disqualification from holding public office.
Section 3. This Decree shall take effect immediately.
Done in the City of Manila, this 16th day of January, in the year of Our
Lord, nineteen hundred and eighty-one.
Rule 12.08 A lawyer shall avoid testifying in behalf of his client,
except:
1. a. on formal matters, such as the mailing,
authentication or custody of an instrument and the like:
2. b. on substantial matters, in cases where his testimony
is essential to the ends of justice, in which event he must,
during his testimony, entrust the trial of the case to
another counsel.
G.R. No. L-35252 October 21, 1932
THE PHILIPPINE NATIONAL BANK, plaintiff-appellant,
vs.
UY TENG PIAO, defendant-appellee.
Nat. M. Balboa and Dominador J. Endriga for appellant.
Antonio Gonzales for appellee.
PINEDAPCGRNMAN
VICKERS, J.:
This is an appeal by the plaintiff a decision of the Court of First Instance
of Manila absolving the defendant from the complaint, without a special
finding as to costs.
The appellant makes the following assignments of error:
The trial court erred:
1. In finding that one Mr. Pecson gave a promise to appellee Uy Teng
Piao to condone the balance of the judgment rendered against the said
Uy Teng Piao and in favor of the Philippine National Bank in civil case
No. 26328 of the Court o First Instance of Manila.
2. In finding that merely in selling the property described in certificate of
title No. 11274 situated at Ronquillo Street, Manila, to Mariano Santos
for P8,600 (Exhibit 2), the appellant had undoubtedly given the alleged
promise of condonation to appellee Uy Teng Piao.
3. In finding that the consideration of document Exhibit 1 is the
condonation of the balance of the judgment rendered in said civil case
No. 26328.
4. In finding that said Mr. Pecson, granting that the latter has actually
given such promise to condone, could bind the appellant corporation.
5. In holding that the absence of demand for payment upon appellee Uy
Teng Piao for the balance of the said judgment from February 11, 1925
up to the year 1930 is "una senal inequivoca una prueba evidente" of the
condonation of the balance of the said judgment.
6. In finding that by the sale of the said property to Mariano Santos for
the sum of P8,600, the said judgment in civil case No. 26328 has been
more than fully paid even discounting the sum of P1,300 which appellant
paid as the highest bidder for the said property.
7. In declaring that the offer of appellee Uy Teng Piao as shown by
Exhibits D and D-1, reflects only the desire of the said appellee Uy Teng
Piao to avoid having a case with the appellant bank.
8. In finally absolving appellee Uy Teng Piao and in not sentencing him
to pay the amount claimed in the complaint with costs.
On September 9, 1924, the Court of First Instance of Manila rendered a
judgment in favor of the Philippine National Bank and against Uy Teng
Piao in civil case No. 26328 for the sum of P17,232.42 with interest at 7
per cent per annum from June 1, 1924, plus 10 per cent of the sum
amount for attorney's fees and costs. The court ordered the defendant
to deposit said amount with the clerk of the court within three months
from the date of the judgment, and in case of his failure to do so that the
mortgaged properties described in transfer certificates of title Nos. 7264
and 8274 should be sold at public auction in accordance with the law and
the proceeds applied to the payment of the judgment.
Uy Teng Piao failed to comply with the order of the court, and the sheriff
of the City of Manila sold the two parcels of land at public auction to the
Philippine National Bank on October 14, 1924 for P300 and P1,000
respectively.
On February 11, 1925, the Philippine National Bank secured from Uy
Teng Piao a waiver of his right to redeem the property described in
Transfer Certificate of Title No. 8274, and on the same date the bank
Page 205
sold said property to Mariano Santos for P8,600.1awphil.net
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Evidently the other parcel, Transfer Certificate of Title No. 7264, was
subsequently resold by the bank for P2,700, because the account of the
defendant was credited with the sum of P11,300. In other words, the
bank credited the defendant with the full amount realized by it when it
resold the two parcels of land.
The bank brought the present action to revive the judgment for the
balance of P11,574.33, with interest at 7 per cent per annum from August
1, 1930.
In his amended answer the defendant alleged as a special defense that
he waived his right to redeem the land described in transfer certificate of
title No. 8274 in consideration of an understanding between him and the
bank that the bank would not collect from him the balance of the
judgment. It was on this ground that the trial court absolved the
defendant from the complaint.
In our opinion the defendant has failed to prove any valid agreement on
the part of the bank not to collect from him the remainder of the judgment.
The alleged agreement rests upon the uncorroborated testimony of the
defendant, the pertinent part of whose testimony on direct examination
was as follows:
P. En este documento aparece que usted, por consideracion de valor
recibido del Banco Nacional demandante en la presente causa, renuncia
a su derecho de recompra de la propiedad vendida por el Sheriff en
publica subasta el catorce de octubre de mil novecientos veintecuatro a
favor del Banco Nacional; quiere usted explicar al Honorable Juzgado,
cual es esta consideracion de valor? R. Si, seor. Esto desde mil
novecientos veintitres o mil novecientos veintecuatro, no recuerdo bien,
me haba dicho el seor Pecson, porque algunas veces yo no podia
pagar esos intereses mensuales. Entonces me dijo Pecson, "como
puede usted recibir alquileres y no paga usted intereses?"
P. Quien es ese seor Pecson? R. Era encargado de este asunto.
P. Que era el del Banco Nacional, usted sabe? R. Era encargado de
estas transacciones. Cuando tenia necesidad siempre llamaba yo al
seor Pecson. Entonces hable al seor Pecson que somos
comerciantes, algunas veces los alquileres no pueden cobrarse por
anticipado.
Sr. ENDRIGA. No es responsiva la contestacion a la pregunta.
Sr. GONZALEZ. Si esta explicando y no ha terminado el testigo su
contestacion.
JUZGADO. Que la termine.
TESTIGO. Me dijo el seor Pecson que es cosa mala para mi "por que
usted cobra alquileres y no paga los intereses? Mejor deje usted ya
todos sus bienes para cubrir sus deudas.
P. El seor Pecson le dijo a usted "mejor deje usted ya todos sus
bienes," a que bienes se referia el ? R. Al terreno de Ronquillo y al
terreno de Paco.
P. Cual de esos terrenos, el de Ronquillo o el de Paco, el que se refiere
aqui en el Exhibit 1? R. Paco, primeramente, los dos ambos.
P. Pero este Exhibit 1, a que se refiere; al de Paco o al de Ronquillo?
R. Parece que Paco.
P. No recuerda usted muy bien? R. No recuerdo.
PINEDAPCGRNMAN
P. Y cuando le dijo a usted el seor Pecson mejor que dejara todos sus
bienes, le dijo a usted a favor de quien iba usted a dejar sus bienes?
R. Al Banco Nacional.
P. Y que le dijo a usted, si le dijo a usted algo el seor Pecson con
respecto al saldo deudor que usted todavia era en deber a favor del
Banco Nacional? R. No recuerdo mas; pero mas o menos de catorce
mil pesos.
P. Que le dijo el con respeto al saldo, si el cobraria todavia o se le
condonaria?
Sr. ENDRIGA. Es alternativa la pregunta. Me opongo.
JUZGADO. Cambiese la pregunta.
P. Que le dijo a usted con respeto al saldo, una vez otorgado este
Exhibit 1?
SR. ENDRIGA. La pregunta no tiene ninguna base. Nos openemos.
Sr. GONZALES. Si dice el que se havian vendido todos los terrenos.
JUZGADO. Puede contestar.
Sr. ENDRIGA. Excepcion.
R. Me dijo que para que usted no cobre alquileres y no pague intereses
deje usted esos terrenos de Ronquillo y terreno de Paco para cubrir ya
todas mis deudas. Entonces dije ya, si, como yo tengo buena fe con este
Banco. Hasta que al fin yo dije que queria yo comprar.
P. Cuando usted firmo el once de febrero de mil novecientos veintecinco
este documento Exhibit 1, recibio usted algun centimo de dinero del
Banco? R. Nada, absolutamente.
When asked on cross-examination if Pecson was not in Iloilo at the time
of the execution of defendant's waiver of his right to redeem, the
defendant answered that he did not know; asked when Pecson had
spoken to him about the matter, the defendant replied that he did not
remember.
One of the attorneys for the plaintiff testified that the defendant
renounced his right to redeem the parcel of land in Calle Ronquillo,
Exhibit 1, because a friend of the defendant was interested in buying it.
The bank ought to have presented Pecson as a witness, or his
deposition, if he was not residing in Manila at the time of the trial.
With respect to the testimony of the bank's attorney, we should like to
observe that although the law does not forbid an attorney to be a witness
and at the same time an attorney in a cause, the courts prefer that
counsel should not testify as a witness unless it is necessary, and that
they should withdraw from the active management of the case. (Malcolm,
Legal Ethics, p. 148.) Canon 19 of the Code of Legal Ethics reads as
follows:
When a lawyer is a witness for his client, except as to merely formal
matters, such as the attestation or custody of an instrument and the like,
he should leave the trial of the case to other counsel. Except when
essential to the ends of justice, a lawyer should avoid testifying in court
in behalf of his client.
Defendant's testimony as to the alleged agreement is very uncertain.
Page 206
There is no mention in Exhibit 1 as to such an agreement on the part of
the bank. Exhibit 1 relates only to the land in Calle Ronquillo. If Pecson
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LEGAL ETHICS
had made any such agreement as the defendant claims, it is reasonable
to suppose that he would have required the defendant to waive his right
to redeem both parcels of land, and that the defendant, a Chines
business man, would have insisted upon some evidence of the
agreement in writing. It appears to us that the defendant waived his right
to redeem the land in Calle Ronquillo, because a friend of his wished to
purchase it and was willing to pay therefor P8,600, and the bank agreed
to credit the defendant with the full amount of the sale.
Furthermore, if it be conceded that there was such an understanding
between Pecson and the defendant as the latter claims, it is not shown
that Pecson was authorized to make any such agreement for the bank.
Only the board of directors or the persons empowered by the board of
directors could bind the bank by such an agreement. There is no merit in
the contention that since the bank accepted the benefit of the waiver it
cannot now repudiate the alleged agreement. The fact that the bank after
having bought the land for P1,000 resold it at the instance of the
defendant for P8,600 and credited the defendant with the full amount of
the resale was a sufficient consideration for the execution of defendant's
waiver of his right to redeem.
For the foregoing reasons, the decision appealed from is reversed, and
the defendant is condemned to pay the plaintiff the sum of P11,574.38
with interest thereon at the rate of 7 per cent per annum from August 1,
1930, and the costs of both instances.
ROC RULE 3 Section 16. Death of party; duty of counsel.
Whenever a party to a pending action dies, and the claim is not
thereby extinguished, it shall be the duty of his counsel to inform
the court within thirty (30) days after such death of the fact thereof,
and to give the name and address of his legal representative or
representatives. Failure of counsel to comply with his duty shall be
a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or
administrator and the court may appoint a guardian ad litem for the
minor heirs.
The court shall forthwith order said legal representative or
representatives to appear and be substituted within a period of
thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased
party, or if the one so named shall fail to appear within the specified
period, the court may order the opposing party, within a specified
time to procure the appointment of an executor or administrator for
the estate of the deceased and the latter shall immediately appear
for and on behalf of the deceased. The court charges in procuring
such appointment, if defrayed by the opposing party, may be
recovered as costs. (16a, 17a)
CANON 13 A LAWYER SHALL RELY UPON THE MERITS OF HIS
CAUSE AND REFRAIN FROM ANY IMPROPRIETY WHICH TENDS
TO INFLUENCE, OR GIVES THE APPEARANCE OF INFLUENCING
THE COURT.
G.R. No. 75209 September 30, 1987
NESTLE PHILIPPINES, INC., petitioner,
vs.
HON. AUGUSTO S. SANCHEZ, MINISTER OF LABOR AND
EMPLOYMENT and THE UNION OF FILIPRO
EMPLOYEES, respondents.
No. 78791 September 30, 1987
KIMBERLY INDEPENDENT LABOR UNION FOR SOLIDARITY,
ACTIVISM AND NATIONALISM-OLALIA,petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION, MANUEL AGUILAR,
PINEDAPCGRNMAN
MA. ESTRELLA ALDAS, CAPT. REY L. LANADA, COL. VIVENCIO
MANAIG and KIMBERLY-CLARK PHILIPPINES, INC., respondents.
RESOLUTION
PER CURIAM:
During the period July 8-10. 1987, respondent in G.R. No. 75029, Union
of Filipro Employees, and petitioner in G.R. No. 78791, Kimberly
Independent Labor Union for Solidarity, Activism and Nationalism-Olalia
intensified the intermittent pickets they had been conducting since June
17, 1987 in front of the Padre Faura gate of the Supreme Court building.
They set up pickets' quarters on the pavement in front of the Supreme
Court building, at times obstructing access to and egress from the
Court's premises and offices of justices, officials and employees. They
constructed provisional shelters along the sidewalks, set up a kitchen
and littered the place with food containers and trash in utter disregard of
proper hygiene and sanitation. They waved their red streamers and
placards with slogans, and took turns haranguing the court all day long
with the use of loud speakers.
These acts were done even after their leaders had been received by
Justices Pedro L. Yap and Marcelo B. Fernan as Chairmen of the
Divisions where their cases are pending, and Atty. Jose C. Espinas,
counsel of the Union of Filipro Employees, had been called in order that
the pickets might be informed that the demonstration must cease
immediately for the same constitutes direct contempt of court and that
the Court would not entertain their petitions for as long as the pickets
were maintained. Thus, on July 10, 1987, the Court en banc issued a
resolution giving the said unions the opportunity to withdraw graciously
and requiring Messrs. Tony Avelino. Lito Payabyab, Eugene San Pedro,
Dante Escasura, Emil Sayao and Nelson Centeno, union leaders of
respondent Union of Filipro Employees in the Nestle case and their
counsel of record, Atty. Jose C. Espinas; and Messrs. Ernesto Facundo,
Fausto Gapuz, Jr. and Antonio Gonzales, union leaders of petitioner
Kimberly Independent Labor Union for Solidarity, Activism and
Nationalism-Olalia in the Kimberly case to appear before the Court on
July 14, 1987 at 10:30 A.M. and then and there to SHOW CAUSE why
they should not be held in contempt of court. Atty. Jose C. Espinas was
further required to SHOW CAUSE why he should not be administratively
dealt with.
On the appointed date and time, the above-named individuals appeared
before the Court, represented by Atty. Jose C. Espinas, in the absence
of Atty. Potenciano Flores, counsel of record of petitioner in G.R. No.
78791, who was still recuperating from an operation.
Atty. Espinas, for himself and in behalf of the union leaders concerned,
apologized to the Court for the above-described acts, together with an
assurance that they will not be repeated. He likewise manifested to the
Court that he had experienced to the picketers why their actions were
wrong and that the cited persons were willing to suffer such penalty as
may be warranted under the circumstances. 1 He, however, prayed for
the Court's leniency considering that the picket was actually
spearheaded by the leaders of the "Pagkakaisa ng Mangagawa sa
Timog Katagalogan" (PAMANTIK), an unregistered loose alliance of
about seventy-five (75) unions in the Southern Tagalog area, and not by
either the Union of Filipro Employees or the Kimberly Independent Labor
Union. 2
Atty. Espinas further stated that he had explained to the picketers that
any delay in the resolution of their cases is usually for causes beyond
the control of the Court and that the Supreme Court has always remained
steadfast in its role as the guardian of the Constitution.
To confirm for the record that the person cited for contempt fully
understood the reason for the citation and that they wig abide by their
promise that said incident will not be repeated, the Court required the
respondents to submit a written manifestation to this effect, which
respondents complied with on July 17, 1987.
We accept the apologies offered by the respondents and at this time,
Page 207
forego the imposition of the sanction warranted by the contemptuous
acts described earlier. The liberal stance taken by this Court in these
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
cases as well as in the earlier case of AHS/PHILIPPINES EMPLOYEES
UNION vs. NATIONAL LABOR RELATIONS COMMISSION, et al., G.R.
No. 73721, March 30, 1987, should not, however, be considered in any
other light than an acknowledgment of the euphoria apparently resulting
from the rediscovery of a long-repressed freedom. The Court will not
hesitate in future similar situations to apply the full force of the law and
punish for contempt those who attempt to pressure the Court into acting
one way or the other in any case pending before it. Grievances, if any,
must be ventilated through the proper channels, i.e., through appropriate
petitions, motions or other pleadings in keeping with the respect due to
the Courts as impartial administrators of justice entitled to "proceed to
the disposition of its business in an orderly manner, free from outside
interference obstructive of its functions and tending to embarrass the
administration of justice." 3
The right of petition is conceded to be an inherent right of the citizen
under all free governments. However, such right, natural and inherent
though it may be, has never been invoked to shatter the standards of
propriety entertained for the conduct of courts. For "it is a traditional
conviction of civilized society everywhere that courts and juries, in the
decision of issues of fact and law should be immune from every
extraneous influence; that facts should be decided upon evidence
produced in court; and that the determination of such facts should be
uninfluenced by bias, prejudice or sympathies." 4
Moreover, "parties have a constitutional right to have their causes tried
fairly in court by an impartial tribunal, uninfluenced by publication or
public clamor. Every citizen has a profound personal interest in the
enforcement of the fundamental right to have justice administered by the
courts, under the protection and forms of law free from outside coercion
or interference." 5 The aforecited acts of the respondents are therefore
not only an affront to the dignity of this Court, but equality a violation of
the above-stated right of the adverse parties and the citizenry at large.
We realize that the individuals herein cited who are non-lawyers are not
knowledgeable in her intricacies of substantive and adjective laws. They
are not aware that even as the rights of free speech and of assembly are
protected by the Constitution, any attempt to pressure or influence courts
of justice through the exercise of either right amounts to an abuse
thereof, is no longer within the ambit of constitutional protection, nor did
they realize that any such efforts to influence the course of justice
constitutes contempt of court. 6 The duty and responsibility of advising
them, therefore, rest primarily and heavily upon the shoulders of their
counsel of record. Atty. Jose C. Espinas, when his attention was called
by this Court, did his best to demonstrate to the pickets the untenability
of their acts and posture. Let this incident therefore serve as a reminder
to all members of the legal profession that it is their duty as officers of
the court to properly apprise their clients on matters of decorum and
proper attitude toward courts of justice, and to labor leaders of the
importance of a continuing educational program for their members.
WHEREFORE, the contempt charges against herein respondents are
DISMISSED. Henceforth, no demonstrations or pickets intended to
pressure or influence courts of justice into acting one way or the other on
pending cases shall be allowed in the vicinity and/or within the premises
of any and all courts.
SO ORDERED.
[A.C. No. 6052. December 11, 2003]
IN RE: PETITION TO DISQUALIFY ATTY. LEONARD DE VERA, ON
LEGAL AND MORAL GROUNDS, FROM BEING ELECTED IBP
GOVERNOR FOR EASTERN MINDANAO IN THE MAY 31, IBP
ELECTIONS
OLIVER OWEN L. GARCIA, EMMANUEL RAVANERA and TONY
VELEZ, petitioners, vs. ATTY. LEONARD DE VERA And IBP BOARD
OF GOVERNORS,respondents.
DECISION
TlNGA, J.:
This is a Petition[1] filed by Attys. Oliver Owen L. Garcia, Emmanuel
Ravanera and Tony Velez, mainly seeking the disqualification of
PINEDAPCGRNMAN
respondent Atty. Leonard De Vera from being elected Governor of
Eastern Mindanao in the 16th Intergrated Bar of the Philippines (IBP)
Regional Governors elections. Petitioner Garcia is the Vice-President of
the Bukidnon IBP Chapter, while petitioners Ravanera and Velez are the
past President and the incumbent President, respectively, of the Misamis
Oriental IBP Chapter.
The facts as culled from the pleadings of the parties follow.
The election for the 16th IBP Board of Governors (IBP Board) was set
on April 26, 2003, a month prior to the IBP National Convention
scheduled on May 22-24, 2003. The election was so set in compliance
with Section 39, Article VI of the IBP By Laws, which reads:
SECTION 39. Nomination and election of the Governors. At least one
month before the national convention, the delegates from each region
shall elect the governor of their region, the choice of which shall as much
as possible be rotated among the chapters in the region.
Later on, the outgoing IBP Board, in its Resolution[2] No. XV-2003-
99 dated April 16, 2003, reset the elections to May 31, 2003, or after the
IBP National Convention.
Respondent De Vera, a member of the Board of Directors of the Agusan
del Sur IBP Chapter in Eastern Mindanao, along with Atty. P. Angelica
Y. Santiago, President of the IBP Rizal Chapter, sent a letter[3] dated 28
March 2003, requesting the IBP Board to reconsider its Resolution of
April 6, 2003. Their Motion was anchored on two grounds viz. (1)
adhering to the mandate of Section 39 of the IBP By Laws to hold the
election of Regional Governors at least one month prior to the national
convention of the IBP will prevent it from being politicized since post-
convention elections may otherwise lure the candidates into engaging in
unacceptable political practices, and; (2) holding the election on May 31,
2003 will render it impossible for the outgoing IBP Board from resolving
protests in the election for governors not later than May 31, 2003, as
expressed in Section 40 of the IBP By Laws, to wit:
SECTION 40. Election contests. - Any nominee desiring to contest an
election shall, within two days after the announcement of the results of
the elections, file with the President of the Integrated Bar a written protest
setting forth the grounds therefor. Upon receipt of such petition, the
President shall forthwith call a special meeting of the outgoing Board of
Governors to consider and hear the protest, with due notice to the
contending parties. The decision of the Board shall be announced not
later than the following May 31, and shall be final and conclusive.
On April 26, 2003, the IBP Board denied the request for reconsideration
in its Resolution No. XV-2003-162.[4]
On May 26, 2003, after the IBP national convention had been adjourned
in the afternoon of May 24, 2003, the petitioners filed a Petition[5] dated
23 May 2003 before the IBP Board seeking (1) the postponement of the
election for Regional Governors to the second or third week of June
2003; and (2) the disqualification of respondent De Vera from being
elected Regional Governor for Eastern Mindanao Region.
The IBP Board denied the Petition in a Resolution issued on May 29,
2003. The pertinent portions of the Resolution read:
WHEREAS, two specific reliefs are being sought, to wit, first, the
postponement of the elections for regional governors and, second, the
disqualification of Atty. Leonard de Vera.
WHEREAS, anent the first relief sought, the Board finds no compelling
justification for the postponement of the elections especially considering
that preparations and notices had already been completed.
WHEREAS, with respect to the disqualifications of Atty. Leonard de
Vera, this Board finds the petition to be premature considering that no
nomination has yet been made for the election of IBP regional governor.
PREMISES CONSIDERED, the Board hereby resolves, as it hereby
resolves, to deny the petition.[6]
Probably thinking that the IBP Board had not yet acted on
their Petition, on the same date, May 29, 2003, the petitioners filed the
present Petition before this Court, seeking the same reliefs as those
sought in their Petition before the IBP.
Page 208
On the following day, May 30, 2003, acting upon the petitioners
application, this Court issued a Temporary Restraining Order (TRO),
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
directing the IBP Board, its agents, representatives or persons acting in
their place and stead to cease and desist from proceeding with the
election for the IBP Regional Governor in Eastern Mindanao.[7]
Citing the IBP By-Laws, the petitioners expound on the mechanics for
the selection of the IBP officers from the Chapter Officers up to the
Regional Governors constituting the IBP Board which is its highest
policy-making body, as well as the underlying dynamics, to wit:
IBP Chapter Officers headed by the President are elected for a term of
two years. The IBP Chapter Presidents in turn, elect their respective
Regional Governors following the rotation rule. The IBP has nine (9)
regions, viz: Northern Luzon, Central Luzon, Greater Manila, Southern
Luzon, Bicolandia, Eastern Visayas, Western Visayas, Eastern
Mindanao and Western Mindanao. The governors serve for a term of two
(2) years beginning on the 1st of July of the first year and ending on the
30th of June of the second year.
From the members of the newly constituted IBP Board, an Executive
Vice President (EVP) shall be chosen, also on rotation basis. The
rationale for the rotation rule in the election of both the Regional
Governors and the Vice President is to give everybody a chance to serve
the IBP, to avoid politicking and to democratize the selection process.
Finally, the National President is not elected. Under the By-Laws,
whoever is the incumbent EVP will automatically be the National
President for the following term.
Petitioners elucidate that at present, all the IBP regions, except Eastern
Mindanao, have had two (2) National Presidents each. Following the
rotation rule, whoever will be elected Regional Governor for Eastern
Mindanao Region in the 16th Regional Governors elections will
automatically become the EVP for the term July 1, 2003 to June 30,
2005. For the next term in turn, i.e., from July 1, 2005 to June 20, 2007,
the EVP immediately before then will automatically assume the post of
IBP National President.
Petitioners asseverate that it is in this light that respondent De Vera had
transferred his IBP membership from the Pasay, Paranaque, Las Pinas
and Muntinlupa (PPLM) Chapter to Agusan del Sur Chapter, stressing
that he indeed covets the IBP presidency.[8] The transfer of IBP
membership to Agusan del Sur, the petitioners went on, is a brazen
abuse and misuse of the rotation rule, a mockery of the domicile rule and
a great insult to lawyers from Eastern Mindanao for it implies that there
is no lawyer from the region qualified and willing to serve the IBP.[9]
Adverting to the moral fitness required of a candidate for the offices of
regional governor, executive vice-president and national president, the
petitioners submit that respondent De Vera lacks the requisite moral
aptitude. According to them, respondent De Vera was sanctioned by the
Supreme Court for irresponsibly attacking the integrity of the SC Justices
during the deliberations on the constitutionality of the plunder law. They
add that he could have been disbarred in the United States for
misappropriating his clients funds had he not surrendered his California
license to practice law. Finally, they accuse him of having actively
campaigned for the position of Eastern Mindanao Governor during the
IBP National Convention held on May 22-24, 2003, a prohibited act under
the IBP By-Laws.[10]
After seeking leave of court, respondent De Vera filed on June 9, 2003
a Respectful Comment [11] on the Petition.
In his defense, respondent De Vera raises new issues. He argues that
this Court has no jurisdiction over the present controversy, contending
that the election of the Officers of the IBP, including the determination of
the qualification of those who want to serve the organization, is purely an
internal matter, governed as it is by the IBP By-Laws and exclusively
regulated and administered by the IBP. Respondent De Vera also assails
the petitioners legal standing, pointing out that the IBP By-Laws does not
have a provision for the disqualification of IBP members aspiring for the
position of Regional governors, for instead all that it provides for is only
an election protest under Article IV, Section 40, pursuant to which only a
qualified nominee can validly lodge an election protest which is to be
made after, not before, the election. He posits further that following the
rotation rule, only members from the Surigao del Norte and Agusan del
PINEDAPCGRNMAN
Sur IBP chapters are qualified to run for Governor for Eastern Mindanao
Region for the term 2003-2005, and the petitioners who are from
Bukidnon and Misamis Oriental are not thus qualified to be nominees.[12]
Meeting the petitioners contention head on, respondent De Vera avers
that an IBP member is entitled to select, change or transfer his chapter
membership.[13] He cites the last paragraph of Section 19, Article II and
Section 29-2, Article IV of the IBP By-Laws, thus:
Article II, Section 19. Registration. - xxx Unless he otherwise registers
his preference for a particular Chapter, a lawyer shall be considered a
member of the Chapter of the province, city, political subdivision or area
where his office or, in the absence thereof, his residence is located. In
no case shall any lawyer be a member of more than one Chapter.
Article IV, Section 29-2. Membership- The Chapter comprises all
members registered in its membership roll. Each member shall maintain
his membership until the same is terminated on any of the grounds set
forth in the By-Laws of the Integrated Bar, or he transfers his
membership to another Chapter as certified by the Secretary of the latter,
provided that the transfer is made not less than three months
immediately preceding any Chapter election.
The right to transfer membership, respondent De Vera stresses, is also
recognized in Section 4, Rule 139-A of the Rules of Court which is
exactly the same as the first of the above-quoted provisions of the IBP
By-Laws, thus:
Rule 139-A, Section 4. xxx Unless he otherwise registers his preference
for a particular Chapter, a lawyer shall be considered a member of the
Chapter of the province, city, political subdivision or area where his
office, or, in the absence thereof, his residence is located. In no case
shall any lawyer be a member of more than one Chapter.
Clarifying that it was upon the invitation of the officers and members of
the Agusan del Sur IBP Chapter that he transferred his IBP membership,
respondent De Vera submits that it is unfair and unkind for the petitioners
to state that his membership transfer was done for convenience and as
a mere subterfuge to qualify him for the Eastern Mindanao
governorship.[14]
On the moral integrity question, respondent De Vera denies that he
exhibited disrespect to the Court or to any of its members during its
deliberations on the constitutionality of the plunder law. As for the
administrative complaint filed against him by one of his clients when he
was practicing law in California, which in turn compelled him to surrender
his California license to practice law, he maintains that it cannot serve as
basis for determining his moral qualification (or lack of it) to run for the
position he is aspiring for. He explains that there is as yet no final
judgment finding him guilty of the administrative charge, as the records
relied upon by the petitioners are mere preliminary findings of a hearing
referee which are recommendatory in character similar to the
recommendatory findings of an IBP Commissioner on Bar Discipline
which are subject to the review of and the final decision of the Supreme
Court. He also stresses that the complainant in the California
administrative case has retracted the accusation that he misappropriated
the complainants money, but unfortunately the retraction was not
considered by the investigating officer. Finally, on the alleged politicking
he committed during the IBP National Convention held on May 22-24,
2003, he states that it is baseless to assume that he was campaigning
simply because he declared that he had 10 votes to support his
candidacy for governorship in the Eastern Mindanao Region and that the
petitioners did not present any evidence to substantiate their claim that
he or his handlers had billeted the delegates from his region at the
Century Park Hotel.[15]
On July 7, 2003, the petitioners filed their Reply[16] to the Respectful
Comment of respondent De Vera who, on July 15, 2003, filed an Answer
and Rejoinder.[17]
In a Resolution[18] dated 5 August 2003, the Court directed the other
respondent in this case, the IBP Board, to file its comment on
the Petition. The IBP Board, through its General Counsel, filed
Page 209
a Manifestation[19] dated 29 August 2003, reiterating the position stated
in its Resolution dated 29 May 2003 that it finds the petition to be
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
premature considering that no nomination has as yet been made for the
election of IBP Regional Governors.[20]
Based on the arguments of the parties, the following are the main issues,
to wit:
(1) whether this Court has jurisdiction over the present controversy;
(2) whether petitioners have a cause of action against respondent De
Vera, the determination of which in turn requires the resolution of two
sub-issues, namely:
(a) whether the petition to disqualify respondent De Vera is the proper
remedy under the IBP By-Laws; and
(b) whether the petitioners are the proper parties to bring this suit;
(3) whether the present Petition is premature;
(4) assuming that petitioners have a cause of action and that the present
petition is not premature, whether respondent De Vera is qualified to run
for Governor of the IBP Eastern Mindanao Region;
Anent the first issue, in his Respectful Comment respondent De Vera
contends that the Supreme Court has no jurisdiction on the present
controversy. As noted earlier, respondent De Vera submits that the
election of the Officers of the IBP, including the determination of the
qualification of those who want to serve the IBP, is purely an internal
matter and exclusively within the jurisdiction of the IBP.
The contention is untenable. Section 5, Article VIII of the 1987
Constitution confers on the Supreme Court the power to promulgate
rules affecting the IBP, thus:
Section 5. The Supreme Court shall have the following powers:
....
(5) Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts, the
admission to the practice of law, the Integrated Bar, and the legal
assistance to the underprivileged. Such rules shall provide a simplified
and inexpensive procedure for the speedy disposition of cases, shall be
uniform for all courts of the same grade, and shall not diminish, increase,
or modify substantive rights. Rules of procedure of special courts and
quasi-judicial bodies shall remain effective unless disapproved by the
Supreme Court. (Emphasis supplied)
Implicit in this constitutional grant is the power to supervise all the
activities of the IBP, including the election of its officers.
The authority of the Supreme Court over the IBP has its origins in the
1935 Constitution. Section 13, Art. VIII thereof granted the Supreme
Court the power to promulgate rules concerning the admission to the
practice of law. It reads:
SECTION 13. The Supreme Court shall have the power to promulgate
rules concerning pleading, practice, and procedure in all courts, and the
admission to the practice of law. Said rules shall be uniform for all courts
of the same grade and shall not diminish, increase, or modify substantive
rights. The existing laws on pleading, practice, and procedure are hereby
repealed as statutes, and are declared Rules of Courts, subject to the
power of the Supreme Court to alter and modify the same. The Congress
shall have the power to repeal, alter or supplement the rules concerning
pleading, practice, and procedure, and the admission to the practice of
law in the Philippines.
The above-quoted sections in both the 1987 and 1935 Constitution and
the similarly worded provision in the intervening 1973
Constitution[21] through all the years have been the sources of this Courts
authority to supervise individual members of the Bar. The term Bar refers
to the collectivity of all persons whose names appear in the Roll of
Attorneys.[22] Pursuant to this power of supervision, the Court initiated
the integration of the Philippine Bar by creating on October 5, 1970 the
Commission on Bar Integration, which was tasked to ascertain the
advisability of unifying the Philippine Bar.[23] Not long after, Republic Act
No. 6397[24] was enacted and it confirmed the power of the Supreme
Court to effect the integration of the Philippine Bar. Finally, on January
1, 1973, in the per curiam Resolution of this Court captioned In the
Matter of the Integration of the Bar to the Philippines, we ordained the
Integration of the Philippine Bar in accordance with Rule 139-A, of the
PINEDAPCGRNMAN
Rules of Court, which we promulgated pursuant to our rule-making
power under the 1935 Constitution.
The IBP By-Laws, the document invoked by respondent De Vera in
asserting IBP independence from the Supreme Court, ironically
recognizes the full range of the power of supervision of the Supreme
Court over the IBP. For one, Section 77[25] of the IBP By-Laws vests
on the Court the power to amend, modify or repeal the IBP By-Laws,
either motu propio or upon recommendation of the Board of Governors
of the IBP. Also in Section 15,[26] the Court is authorized to send
observers in IBP elections, whether local or national. Section
44[27] empowers the Court to have the final decision on the removal of
the members of the Board of Governors.
On the basis of its power of supervision over the IBP, the Supreme Court
looked into the irregularities which attended the 1989 elections of the IBP
National Officers. In Bar Matter No. 491 entitled In the Matter of the
Inquiry into the 1989 Elections of the Integrated Bar of the Philippines the
Court formed a committee to make an inquiry into the 1989 elections.
The results of the investigation showed that the elections were marred
by irregularities, with the principal candidates for election committing acts
in violation of Section 14 of the IBP By-Laws.28 The Court invalidated the
elections and directed the conduct of special elections, as well as
explicitly disqualified from running thereat the IBP members who were
found involved in the irregularities in the elections, in order to impress
upon the participants, in that electoral exercise the seriousness of the
misconduct which attended it and the stern disapproval with which it is
viewed by this Court, and to restore the non-political character of the IBP
and reduce, if not entirely eliminate, expensive electioneering.
The Court likewise amended several provisions of the IBP By-Laws.
First, it removed direct election by the House of Delegates of the (a)
officers of the House of Delegates; (b) IBP President; and (c) Executive
Vice-President (EVP). Second, it restored the former system of the IBP
Board choosing the IBP President and the Executive Vice President
(EVP) from among themselves on a rotation basis (Section 47 of the By-
Laws, as amended) and the automatic succession by the EVP to the
position of the President upon the expiration of their common two-year
term. Third, it amended Sections 37 and 39 by providing that the
Regional Governors shall be elected by the members of their respective
House of Delegates and that the position of Regional Governor shall be
rotated among the different chapters in the region.
The foregoing considerations demonstrate the power of the Supreme
Court over the IBP and establish without doubt its jurisdiction to hear and
decide the present controversy.
In support of its stance on the second issue that the petitioners have no
cause of action against him, respondent De Vera argues that the IBP By-
Laws does not allow petitions to disqualify candidates for Regional
Governors since what it authorizes are election protests or post-election
cases under Section 40 thereof which reads:
SECTION 40. Election contests. - Any nominee desiring to contest an
election shall, within two days after the announcement of the results of
the elections, file with the President of the Integrated Bar a written protest
setting forth the grounds therefor. Upon receipt of such petition, the
President shall forthwith call a special meeting of the outgoing Board of
Governors to consider and hear the protest, with due notice to the
contending parties. The decision of the Board shall be announced not
later than the following May 31, and shall be final and conclusive.
Indeed, there is nothing in the present IBP By-Laws which sanctions the
disqualification of candidates for IBP governors. The remedy it provides
for questioning the elections is the election protest. But this remedy, as
will be shown later, is not available to just anybody.
Before its amendment in 1989, the IBP By-Laws allowed the
disqualification of nominees for the position of regional governor. This
was carefully detailed in the former Section 39(4) of the IBP By-Laws, to
wit:
SECTION 39 (4) Disqualification proceedings. - Any question relating to
Page 210
the eligibility of a candidate must be raised prior to the casting of ballots,
and shall be immediately decided by the Chairman. An appeal from such
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
decision may be taken to the Delegates in attendance who shall forthwith
resolve the appeal by plurality vote. Voting shall be by raising of hands.
The decision of the Delegates shall be final, and the elections shall
thereafter proceed. Recourse to the Board of Governors may be had in
accordance with Section 40.
The above-quoted sub-section was part of the provisions on nomination
and election of the Board of Governors. Before, members of the Board
were directly elected by the members of the House of Delegates at its
annual convention held every other year.29 The election was a two-tiered
process. First, the Delegates from each region chose by secret plurality
vote, not less than two nor more than five nominees for the position of
Governor for their Region. The names of all the nominees, arranged by
region and in alphabetical order, were written on the board within the full
view of the House, unless complete mimeographed copies of the lists
were distributed to all the Delegates.30 Thereafter, each Delegate, or, in
his absence, his alternate voted for only one nominee for Governor for
each Region.31 The nominee from every Region receiving the highest
number of votes was declared and certified elected by the Chairman.32
In the aftermath of the controversy which arose during the 1989 IBP
elections, this Court deemed it best to amend the nomination and
election processes for Regional Governors. The Court localized the
elections, i.e, each Regional Governor is nominated and elected by the
delegates of the concerned region, and adopted the rotation process
through the following provisions, to wit:
SECTION 37: Composition of the Board. - The Integrated Bar of the
Philippines shall be governed by a Board of Governors consisting of nine
(9) Governors from the nine (9) regions as delineated in Section 3 of the
Integration Rule, on the representation basis of one Governor for each
region to be elected by the members of the House of Delegates from that
region only. The position of Governor should be rotated among the
different chapters in the region.
SECTION 39: Nomination and election of the Governors. - At least one
(1) month before the national convention the delegates from each region
shall elect the governor for their region, the choice of which shall as much
as possible be rotated among the chapters in the region.
The changes adopted by the Court simplified the election process and
thus made it less controversial. The grounds for disqualification were
reduced, if not totally eradicated, for the pool from which the Delegates
may choose their nominees is diminished as the rotation process
operates.
The simplification of the process was in line with this Courts vision of an
Integrated Bar which is non-political33 and effective in the discharge of
its role in elevating the standards of the legal profession, improving the
administration of justice and contributing to the growth and progress of
the Philippine society.34
The effect of the new election process convinced this Court to remove
the provision on disqualification proceedings. Consequently, under the
present IBP By-Laws, the instant petition has no firm ground to stand on.
Respondent De Vera likewise asseverates that under the aforequoted
Section 40 of the IBP By-Laws, petitioners are not the proper persons to
bring the suit for they are not qualified to be nominated in the elections
of regional governor for Eastern Mindanao. He argues that following the
rotation rule under Section 39 of the IBP By-Laws as amended, only IBP
members from Agusan del Sur and Surigao del Norte are qualified to be
nominated.
Truly, with the applicability of Section 40 of the IBP By-Laws to the
present petition, petitioners are not the proper parties to bring the suit.
As provided in the aforesaid section, only nominees can file with the
President of the IBP a written protest setting forth the grounds therefor.
As claimed by respondent De Vera, and not disputed by petitioners, only
IBP members from Agusan del Sur and Surigao del Norte are qualified
to be nominated and elected at the election for the 16th Regional
Governor of Eastern Mindanao. This is pursuant to the rotation rule
enunciated in the aforequoted Sections 37 and 38 of the IBP By-Laws.
Petitioner Garcia is from Bukidnon IBP Chapter while the other
petitioners, Ravanera and Velez, are from the Misamis Oriental IBP
PINEDAPCGRNMAN
Chapter. Consequently, the petitioners are not even qualified to be
nominated at the forthcoming election.
On the third issue relating to the ripeness or prematurity of the present
petition.
This Court is one with the IBP Board in its position that it is premature for
the petitioners to seek the disqualification of respondent De Vera from
being elected IBP Governor for the Eastern Mindanao Region. Before a
member is elected governor, he has to be nominated first for the post. In
this case, respondent De Vera has not been nominated for the post. In
fact, no nomination of candidates has been made yet by the members of
the House of Delegates from Eastern Mindanao. Conceivably too,
assuming that respondent De Vera gets nominated, he can always opt
to decline the nomination.
Petitioners contend that respondent de Vera is disqualified for the post
because he is not really from Eastern Mindanao. His place of residence
is in Paraaque and he was originally a member of the PPLM IBP Chapter.
He only changed his IBP Chapter membership to pave the way for his
ultimate goal of attaining the highest IBP post, which is the national
presidency. Petitioners aver that in changing his IBP membership,
respondent De Vera violated the domicile rule.
The contention has no merit. Under the last paragraph of Section 19
Article II, a lawyer included in the Roll of Attorneys of the Supreme Court
can register with the particular IBP Chapter of his preference or choice,
thus:
Section 19. Registration. -
....
Unless he otherwise registers his preference for a particular Chapter, a
lawyer shall be considered a member of the Chapter of the province, city,
political subdivision or area where his office or, in the absence thereof,
his residence is located. In no case shall any lawyer be a member of
more than one Chapter. (Underscoring supplied)
It is clearly stated in the afore-quoted section of the By-Laws that it is not
automatic that a lawyer will become a member of the chapter where his
place of residence or work is located. He has the discretion to choose
the particular chapter where he wishes to gain membership. Only when
he does not register his preference that he will become a member of the
Chapter of the place where he resides or maintains his office. The only
proscription in registering ones preference is that a lawyer cannot be a
member of more than one chapter at the same time.
The same is provided in Section 29-2 of the IBP By-Laws. In fact, under
this Section, transfer of IBP membership is allowed as long as the lawyer
complies with the conditions set forth therein, thus:
SECTION 29-2. Membership - The Chapter comprises all members
registered in its membership roll. Each member shall maintain his
membership until the same is terminated on any of the grounds set forth
in the By-Laws of the Integrated Bar, or he transfers his membership to
another Chapter as certified by the Secretary of the latter, provided that
the transfer is made not less than three months immediately preceding
any Chapter election.
The only condition required under the foregoing rule is that the transfer
must be made not less than three months prior to the election of officers
in the chapter to which the lawyer wishes to transfer.
In the case at bar, respondent De Vera requested the transfer of his IBP
membership to Agusan del Sur on 1 August 2001. One month thereafter,
IBP National Secretary Jaime M. Vibar wrote a letter35 addressed to Atty.
Amador Z. Tolentino, Jr., Secretary of IBP PPLM Chapter and Atty.
Lyndon J. Romero, Secretary of IBP Agusan del Sur Chapter, informing
them of respondent De Veras transfer and advising them to make the
necessary notation in their respective records. This letter is a substantial
compliance with the certification mentioned in Section 29-2 as
aforequoted. Note that De Veras transfer was made effective sometime
between August 1, 2001 and September 3, 2001. On February 27, 2003,
the elections of the IBP Chapter Officers were simultaneously held all
over the Philippines, as mandated by Section 29-12.a of the IBP By-Laws
Page 211
which provides that elections of Chapter Officers and Directors shall be
held on the last Saturday of February of every other year.36 Between
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
September 3, 2001 and February 27, 2003, seventeen months had
elapsed. This makes respondent De Veras transfer valid as it was done
more than three months ahead of the chapter elections held on February
27, 2003.
Petitioners likewise claim that respondent De Vera is disqualified
because he is not morally fit to occupy the position of governor of Eastern
Mindanao.
We are not convinced. As long as an aspiring member meets the basic
requirements provided in the IBP By-Laws, he cannot be barred. The
basic qualifications for one who wishes to be elected governor for a
particular region are: (1) he is a member in good standing of the IBP;37 2)
he is included in the voters list of his chapter or he is not disqualified by
the Integration Rule, by the By-Laws of the Integrated Bar, or by the By-
Laws of the Chapter to which he belongs;38 (3) he does not belong to a
chapter from which a regional governor has already been elected, unless
the election is the start of a new season or cycle;39 and (4) he is not in
the government service.40
There is nothing in the By-Laws which explicitly provides that one must
be morally fit before he can run for IBP governorship. For one, this is so
because the determination of moral fitness of a candidates lies in the
individual judgment of the members of the House of Delegates. Indeed,
based on each members standard of morality, he is free to nominate and
elect any member, so long as the latter possesses the basic
requirements under the law. For another, basically the disqualification of
a candidate involving lack of moral fitness should emanate from his
disbarment or suspension from the practice of law by this Court, or
conviction by final judgment of an offense which involves moral turpitude.
Petitioners, in assailing the morality of respondent De Vera on the basis
of the alleged sanction imposed by the Supreme Court during the
deliberation on the constitutionality of the plunder law, is apparently
referring to this Courts Decision dated 29 July 2002 in In Re: Published
Alleged Threats Against Members of the Court in the Plunder Law Case
Hurled by Atty. Leonard De Vera.41 In this case, respondent De Vera was
found guilty of indirect contempt of court and was imposed a fine in the
amount of Twenty Thousand Pesos (P20,000.00) for his remarks
contained in two newspaper articles published in the Inquirer. Quoted
hereunder are the pertinent portions of the report, with De Veras
statements written in italics.
PHILIPPINE DAILY INQUIRER
Tuesday, November 6, 2001
Erap camp blamed for oust-Badoy maneuvers
Plunder Law
De Vera asked the Supreme Court to dispel rumors that it would vote in
favor of a petition filed by Estradas lawyers to declare the plunder law
unconstitutional for its supposed vagueness.
De Vera said he and his group were greatly disturbed by the rumors from
Supreme Court insiders.
Reports said that Supreme Court justices were tied 6-6 over the
constitutionality of the Plunder Law, with two other justices still
undecided and uttered most likely to inhibit, said Plunder Watch, a
coalition formed by civil society and militant groups to monitor the
prosecution of Estrada.
We are afraid that the Estrada camps effort to coerce, bribe, or influence
the justices- considering that it has a P500 million slush fund from the
aborted power grab that May-will most likely result in a pro-Estrada
decision declaring the Plunder Law either unconstitutional or vague, the
group said.42
PHILIPPINE DAILY INQUIRER
Monday, November 19, 2001
SC under pressure from Erap pals, foes
Xxx
People are getting dangerously, passionate.. .emotionally charged. said
lawyer Leonard De Vera of the Equal Justice for All Movement and a
leading member of the Estrada Resign movement.
PINEDAPCGRNMAN
He voiced his concern that a decision by the high tribunal rendering the
plunder law unconstitutional would trigger mass actions, probably more
massive than those that led to People Power II.
Xxx
De Vera warned of a crisis far worse than the jueteng scandal that led to
People Power II if the rumor turned out to be true.
People wouldnt just swallow any Supreme Court decision that is
basically wrong. Sovereignty must prevail. 43
In his Explanation submitted to the Court, respondent De Vera admitted
to have made said statements but denied to have uttered the same to
degrade the Court, to destroy public confidence in it and to bring it into
disrepute.44 He explained that he was merely exercising his
constitutionally guaranteed right to freedom of speech.
The Court found the explanation unsatisfactory and held that the
statements were aimed at influencing and threatening the Court to
decide in favor of the constitutionality of the Plunder Law.45
The ruling cannot serve as a basis to consider respondent De Vera
immoral. The act for which he was found guilty of indirect contempt does
not involve moral turpitude.
In Tak Ng v. Republic of the Philippines46 cited in Villaber v. Commission
on Elections,47 the Court defines moral turpitude as an act of baseness,
vileness or depravity in the private and social duties which a man owes
his fellow men, or to society in general, contrary to the accepted and
customary rule of right and duty between man and man, or conduct
contrary to justice, honesty, modesty or good morals.48 The
determination of whether an act involves moral turpitude is a factual
issue and frequently depends on the circumstances attending the
violation of the statute.49
In this case, it cannot be said that the act of expressing ones opinion on
a public interest issue can be considered as an act of baseness, vileness
or depravity. Respondent De Vera did not bring suffering nor cause
undue injury or harm to the public when he voiced his views on the
Plunder Law.50 Consequently, there is no basis for petitioner to invoke
the administrative case as evidence of respondent De Veras alleged
immorality.
On the administrative complaint that was filed against respondent De
Vera while he was still practicing law in California, he explained that no
final judgment was rendered by the California Supreme Court finding him
guilty of the charge. He surrendered his license to protest the
discrimination he suffered at the hands of the investigator and he found
it impractical to pursue the case to the end. We find these explanations
satisfactory in the absence of contrary proof. It is a basic rule on evidence
that he who alleges a fact has the burden to prove the same.51 In this
case, the petitioners have not shown how the administrative complaint
affects respondent De Veras moral fitness to run for governor.
Finally, on the allegation that respondent de Vera or his handlers had
housed the delegates from Eastern Mindanao in the Century Park Hotel
to get their support for his candidacy, again petitioners did not present
any proof to substantiate the same. It must be emphasized that bare
allegations, unsubstantiated by evidence, are not equivalent to proof
under our Rules of Court.52
WHEREFORE, the Petition to disqualify respondent Atty. Leonard De
Vera to run for the position of IBP Governor for Eastern Mindanao in the
16th election of the IBP Board of Governors is hereby DISMISSED.
The Temporary Restraining Order issued by this Court on 30 May 2003
which enjoined the conduct of the election for the IBP Regional Governor
in Eastern Mindanao is hereby LIFTED. Accordingly, the IBP Board of
Governors is hereby ordered to hold said election with proper notice and
with deliberate speed.
SO ORDERED.
Rule 13.01 A lawyer shall not extend extraordinary attention or
hospitality to, nor seek opportunity for, cultivating familiarity with
judges.
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Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Rule 13.02 A lawyer shall not make public statements in the media
regarding a pending case tending to arouse public opinion for or
against a party.
G.R. No. L-12871 July 25, 1959
TIMOTEO V. CRUZ, petitioner,
vs.
FRANCISCO G. H. SALVA, respondent.
Baizas and Balderrama for petitioner.
City Attorney Francisco G. H. Salva in his own behalf.
MONTEMAYOR, J.:
This is a petition for certiorari and prohibition with preliminary injunction
filed by Timoteo V. Cruz against Francisco G. H. Salva, in his capacity
as City Fiscal of Pasay City, to restrain him from continuing with the
preliminary investigation he was conducting in September, 1957 in
connection with the killing of Manuel Monroy which took place on June
15, 1953 in Pasay City. To better understand the present case and its
implications, the following facts gathered from the pleadings and the
memoranda filed by the parties, may be stated.
Following the killing of Manuel Monroy in 1953 a number of persons were
accused as involved and implicated in said crime. After a long trial, the
Court of First Instance of Pasay City found Oscar Castelo, Jose de
Jesus, Hipolito Bonifacio, Bienvenido Mendoza, Francis Berdugo and
others guilty of the crime of murder and sentenced them to death. They
all appealed the sentence although without said appeal, in view of the
imposition of the extreme penalty, the case would have to be reviewed
automatically by this Court. Oscar Castelo sought a new trial which was
granted and upon retrial, he was again found guilty and his former
conviction of sentence was affirmed and reiterated by the same trial
court.
It seems that pending appeal, the late President Magsaysay ordered a
reinvestigation of the case. The purpose of said reinvestigation does not
appear in the record. Anyway, intelligence agents of the Philippine
Constabulary and investigators of Malacaang conducted the
investigation for the Chief Executive, questioned a number of people and
obtained what would appear to be confession, pointing to persons, other
than those convicted and sentenced by the trial court, as the real killers
of Manuel Monroy.
Counsel for Oscar Castelo and his co-defendants wrote to respondent
Fiscal Salva to conduct a reinvestigation of the case presumably on the
basis of the affidavits and confessions obtained by those who had
investigated the case at the instance of Malacaang. Fiscal Salva
conferred with the Solicitor General as to what steps he should take. A
conference was held with the Secretary of Justice who decided to have
the results of the investigation by the Philippine Constabulary and
Malacaang investigators made available to counsel for the appellants.
Taking advantage of this opportunity, counsel for the appellants filed a
motion for new trial with this Tribunal supporting the same with the so-
called affidavits and confessions of some of those persons investigated,
such as the confessions of Sergio Eduardo y de Guzman, Oscar Caymo,
Pablo Canlas, and written statements of several others. By resolution of
this Tribunal, action on said motion for new trial was deferred until the
case was studied and determined on the merits. In the meantime, the
Chief, Philippine Constabulary, head sent to the Office of Fiscal Salva
copies of the same affidavits and confessions and written statements, of
which the motion for new trial was based, and respondent Salva
proceeded to conduct a reinvestigation designating for said purposes a
committee of three composed of himself as chairman and Assistant City
Attorneys Herminio A. Avendaio and Ernesto A. Bernabe.
In connection with said preliminary investigation being conducted by the
committee, petitioner Timoteo Cruz was subpoenaed by respondent to
appear at his office on September 21, 1957, to testify "upon oath before
me in a certain criminal investigation to be conducted at the time and
place by this office against you and Sergio Eduardo, et al., for murder."
On September 19, 1957, petitioner Timoteo Cruz wrote to respondent
Salva asking for the transfer of the preliminary investigation from
PINEDAPCGRNMAN
September 21, due to the fact that this counsel, Atty. Crispin Baizas,
would attend a hearing on that same day in Naga City. Acting upon said
request for postponement, Fiscal Salva set the preliminary investigation
on September 24. On that day, Atty. Baizas appeared for petitioner Cruz,
questioned the jurisdiction of the committee, particularly respondent
Salva, to conduct the preliminary investigation in view of the fact that the
same case involving the killing of Manuel Monroy was pending appeal in
this Court, and on the same day filed the present petition for certiorari
and prohibition. This Tribunal gave due course to the petition for certiorari
and prohibition and upon the filing of a cash bond of P200.00 issued a
writ of preliminary injunction thereby stopping the preliminary
investigation being conducted by respondent Salva.
The connection, if any, that petitioner Cruz had with the preliminary
investigation being conducted by respondent Salva and his committee
was that affidavits and confessions sent to Salva by the Chief, Philippine
Constabulary, and which were being investigated, implicated petitioner
Cruz, even picturing him as the instigator and mastermind in the killing
of Manuel Monroy.
The position taken by petitioner Cruz in this case is that inasmuch as the
principal case of People vs. Oscar Castelo, et al., G.R. No. L-10794, is
pending appeal and consideration before us, no court, much less a
prosecuting attorney like respondent Salva, had any right or authority to
conduct a preliminary investigation or reinvestigation of the case for that
would be obstructing the administration of justice and interferring with the
consideration on appeal of the main case wherein appellants had been
found guilty and convicted and sentenced; neither had respondent
authority to cite him to appear and testify at said investigation.
Respondent Salva, however, contends that if he subpoenaed petitioner
Cruz at all, it was because of the latter's oral and personal request to
allow him to appear at the investigation with his witnesses for his own
protection, possibly, to controvert and rebut any evidence therein
presented against him. Salva claims that were it not for this request and
if, on the contrary, Timoteo Cruz had expressed any objection to being
cited to appear in the investigation he (Salva) would never have
subpoenaed him.
Although petitioner Cruz now stoutly denies having made such request
that he be allowed to appear at the investigation, we are inclined to agree
with Fiscal Salva that such a request had been made. Inasmuch as he,
Timoteo Cruz, was deeply implicated in the killing of Manuel Monroy by
the affidavits and confessions of several persons who were being
investigated by Salva and his committee, it was but natural that petitioner
should have been interested, even desirous of being present at that
investigation so that he could face and cross examine said witnesses
and affiants when they testified in connection with their affidavits or
confessions, either repudiating, modifying or ratifying the same.
Moreover, in the communication, addressed to respondent Salva asking
that the investigation, scheduled for September 21, 1957, be postponed
because his attorney would be unable to attend, Timoteo Cruz
expressed no opposition to the subpoena, not even a hint that he was
objecting to his being cited to appear at the investigation.
As to the right of respondent Salva to conduct the preliminary
investigation which he and his committee began ordinarily, when a
criminal case in which a fiscal intervened though nominally, for according
to respondent, two government attorneys had been designed by the
Secretary of Justice to handle the prosecution in the trial of the case in
the court below, is tried and decided and it is appealed to a higher court
such as this Tribunal, the functions and actuations of said fiscal have
terminated; usually, the appeal is handled for the government by the
Office of the Solicitor General. Consequently, there would be no reason
or occasion for said fiscal to conduct a reinvestigation to determine
criminal responsibility for the crime involved in the appeal.
However, in the present case, respondent has, in our opinion,
established a justification for his reinvestigation because according to
him, in the original criminal case against Castelo, et al., one of the
Page 213
defendants named Salvador Realista y de Guzman was not included for
the reason that he was arrested and was placed within the jurisdiction of
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
the trial court only after the trial against the other accused had
commenced, even after the prosecution had rested its case and the
defense had begun to present its evidence. Naturally, Realista remained
to stand trial. The trial court, according to respondent, at the instance of
Realista, had scheduled the hearing at an early date, that is in August,
1957. Respondent claims that before he would go to trial in the
prosecution of Realista he had to chart his course and plan of action,
whether to present the same evidence, oral and documentary, presented
in the original case and trial, or, in view of the new evidence consisting
of the affidavits and confessions sent to him by the Philippine
Constabulary, he should first assess and determine the value of said
evidence by conducting an investigation and that should he be convinced
that the persons criminally responsible for the killing of Manuel Monroy
were other than those already tried and convicted, like Oscar Castelo
and his co-accused and co-appellants, including Salvador Realista, then
he might act accordingly and even recommend the dismissal of the case
against Realista.
In this, we are inclined to agree with respondent Salva. For, as
contended by him and as suggested by authorities, the duty and role of
prosecuting attorney is not only to prosecute and secure the conviction
of the guilty but also to protect the innocent.
We cannot overemphasize the necessity of close scrutiny and
investigation of the prosecuting officers of all cases handled by them, but
whilst this court is averse to any form of vacillation by such officers in the
prosecution of public offenses, it is unquestionable that they may, in
appropriate cases, in order to do justice and avoid injustice, reinvestigate
cases in which they have already filed the corresponding informations.
In the language of Justice Sutherland of the Supreme Court of the United
States, theprosecuting officer "is the representative not of an ordinary
party to a controversy, but of a sovereignty whose obligation to govern
impartially is as compelling as its obligation to govern at all; and whose
interest, therefore, in a criminal prosecution is not that it shall win a case,
but that justice shall be done. As such, he is in a peculiar and very definite
sense the servant of the law, the twofold aim of which is that guilt shall
not escape nor innocent suffer. He may prosecute with earnestness and
vigor indeed, he should do so. But, while he may strike had blows, he
is not at liberty to strike foul ones. It is as much his duty to refrain from
improper methods calculated to produce a wrongful conviction as it is to
use every legitimate means to bring about a just one. (69 United States
law Review, June, 1935, No. 6, p. 309, cited in the case of Suarezvs.
Platon, 69 Phil., 556)
With respect to the right of respondent Salva to cite petitioner to appear
and testify before him at the scheduled preliminary investigation, under
the law, petitioner had a right to be present at that investigation since as
was already stated, he was more or less deeply involved and implicated
in the killing of Monroy according to the affiants whose confessions,
affidavits and testimonies respondent Salva was considering or was to
consider at said preliminary investigation. But he need not be present at
said investigation because his presence there implies, and was more of
a right rather than a duty or legal obligation. Consequently, even if, as
claimed by respondent Salva, petitioner expressed the desire to be given
an opportunity to be present at the said investigation, if he latter changed
his mind and renounced his right, and even strenuously objected to being
made to appear at said investigation, he could not be compelled to do
so.
Now we come to the manner in which said investigation was conducted
by the respondent. If, as contended by him, the purpose of said
investigation was only to acquaint himself with and evaluate the evidence
involved in the affidavits and confessions of Sergio Eduardo, Cosme
Camo and others by questioning them, then he, respondent, could well
have conducted the investigation in his office, quietly, unobtrusively and
without much fanfare, much less publicity.
However, according to the petitioner and not denied by the respondent,
the investigation was conducted not in respondent's office but in the
session hall of the Municipal Court of Pasay City evidently, to
accommodate the big crowd that wanted to witness the proceeding,
PINEDAPCGRNMAN
including members of the press. A number of microphones were
installed. Reporters were everywhere and photographers were busy
taking pictures. In other words, apparently with the permission of, if not
the encouragement by the respondent, news photographers and
newsmen had a filed day. Not only this, but in the course of the
investigation, as shown by the transcript of the stenographic notes taken
during said investigation, on two occasions, the first, after Oscar Caymo
had concluded his testimony respondent Salva, addressing the
newspapermen said, "Gentlemen of the press, if you want to ask
questions I am willing to let you do so and the question asked will be
reproduced as my own"; and the second, after Jose Maratella y de
Guzman had finished testifying and respondent Salva, addressing the
newsmen, again said, "Gentlemen of the press is free to ask questions
as ours." Why respondent was willing to abdicate and renounce his right
and prerogative to make and address the questions to the witnesses
under investigation, in favor of the members of the press, is difficult for
us to understand, unless he, respondent, wanted to curry favor with the
press and publicize his investigation as much as possible. Fortunately,
the gentlemen of the press to whom he accorded such unusual privilege
and favor appeared to have wisely and prudently declined the offer and
did not ask questions, this according to the transcript now before us.
But, the newspapers certainly played up and gave wide publicity to what
took place during the investigation, and this involved headlines and
extensive recitals, narrations of and comments on the testimonies given
by the witnesses as well as vivid descriptions of the incidents that took
place during the investigation. It seemed as though the criminal
responsibility for the killing of Manuel Monroy which had already been
tried and finally determined by the lower court and which was under
appeal and advisement by this Tribunal, was being retried and
redetermined in the press, and all with the apparent place and
complaisance of respondent.
Frankly, the members of this Court were greatly disturbed and annoyed
by such publicity and sensationalism, all of which may properly be laid at
the door of respondent Salva. In this, he committed what was regard a
grievous error and poor judgment for which we fail to find any excuse or
satisfactory explanation. His actuations in this regard went well beyond
the bounds of prudence, discretion and good taste. It is bad enough to
have such undue publicity when a criminal case is being investigated by
the authorities, even when it being tried in court; but when said publicity
and sensationalism is allowed, even encouraged, when the case is on
appeal and is pending consideration by this Tribunal, the whole thing
becomes inexcusable, even abhorrent, and this Court, in the interest of
justice, is constrained and called upon to put an end to it and a deterrent
against its repetition by meting an appropriate disciplinary measure,
even a penalty to the one liable.
Some of the members of the Court who appeared to feel more strongly
than the others favored the imposition of a more or less severe penal
sanction. After mature deliberation, we have finally agreed that a public
censure would, for the present, be sufficient.
In conclusion, we find and hold that respondent Salva was warranted in
holding the preliminary investigation involved in this case, insofar as
Salvador Realista is concerned, for which reason the writ of preliminary
injunction issued stopping said preliminary investigation, is dissolved;
that in view of petitioner's objection to appear and testify at the said
investigation, respondent may not compel him to attend said
investigation, for which reason, the subpoena issued by respondent
against petitioner is hereby set aside.
In view of the foregoing, the petition for certiorari and prohibition is
granted in part and denied in part. Considering the conclusion arrived at
by us, respondent Francisco G. H. Salva is hereby publicly reprehended
and censured for the uncalled for and wide publicity and sensationalism
that he had given to and allowed in connection with his investigation,
which we consider and find to be contempt of court; and, furthermore, he
is warned that a repetition of the same would meet with a more severe
Page 214
disciplinary action and penalty. No costs.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
G.R. No. L-30894 March 25, 1970
EDUARDO L. MARTELINO, CIRILO OROPESA, TEODORO FACELO,
RUPERTO AMISOTO, ALBERTO SOTECO, SOLFERINO TITONG, ET
AL., petitioners,
vs.
JOSE ALEJANDRO, RUBEN S. MONTOYA, SIXTO R. ALHAMBRA,
AVELINO C. MENEZ, EFRAIN S. MACLANG, ET AL., respondents.
Amelito R. Mutuc for petitioners.
Colonel Manuel V. Reyes (Judge Advocate General, GSC), Major
Samuel M. Soriano (JAGS), Major Higinio E. Dacanay, Jr. (JAGS, PC)
and Solicitor General Felix V. Makasiar, Assistant Solicitor General
Crispin V. Bautista, Solicitor Jaime M. Lantin and Guillermo Nakar, Jr.
for respondents.
CASTRO, J.:
This case presents another aspect of the court-martial proceedings
against the petitioner, Major Eduardo Martelino, alias Abdul Latif
Martelino, of the Armed Forces of the Philippines, and the officers and
men under him, for violation of the 94th and 97th Articles of War, as a
result of the alleged shooting on March 18, 1968 of some Muslim recruits
then undergoing commando training on the island of Corregidor. Once
before the question was raised before this Court whether the general
court-martial, convened on April 6, 1968 to try the case against the
petitioners, acquired jurisdiction over the case despite the fact that
earlier, on March 23, a complaint for frustrated murder had been filed in
the fiscal's office of Cavite City by Jibin Arula (who claimed to have been
wounded in the incident) against some of the herein petitioners. The
proceedings had to be suspended until the jurisdiction issue could be
decided. On June 23, 1969 this Court ruled in favor of the jurisdiction of
the military court.1
The jurisdiction question thus settled, attention once again shifted to the
general court-martial, but no sooner had the proceedings resumed than
another hitch developed. This came about as the petitioners, the
accused in the court-martial proceedings, in turn came to this Court,
seeking relief against certain orders of the general court-martial.
It appears that at the hearing on August 12, 1969 the petitioner Martelino
sought the disqualification of the President of the general court-martial,
following the latter's admission that he read newspaper stories of the
Corregidor incident. The petitioner contended that the case had received
such an amount of publicity in the press and other news media and in
fact was being exploited for political purposes in connection with the
presidential election on November 11, 1969 as to imperil his right to a
fair trial. After deliberating, the military court denied the challenge.
Thereafter the petitioners raised peremptory challenges against Col.
Alejandro, as president of the court-martial, and Col. Olfindo, Lt. Col.
Camagay, Lt. Col. Valones, Lt. Col. Blanco and Col. Malig, as members.
With regard to peremptory challenges it was the petitioners' position that
for each specification each accused was entitled to one such challenge.
They later changed their stand and adopted that of the trial judge
advocate that "for each specification jointly tried, all of the accused are
entitled to only 1 peremptory challenge; and that with respect to the
specifications tried commonly, each one of the accused is entitled to one
peremptory challenge." They there contended that they were entitled to
a total of eleven peremptory challenges. On the other hand the court-
martial ruled that the accused were entitled to only one peremptory
challenge as the specifications were being jointly tried.
The petitioners therefore filed this petition for certiorari and prohibition,
to nullify the orders of the court-martial denying their challenges, both
peremptory and for cause. They allege that the adverse publicity given
in the mass media to the Corregidor incident, coupled with the fact that
it became an issue against the administration in the 1969 elections, was
such as to unduly influence the members of the court-martial. With
respect to peremptory challenges, they contend that they are entitled to
eleven such challenges, one for each specification.
PINEDAPCGRNMAN
On August 29, 1969 this Court gave due course to the petition, required
the respondents as members of the general court-martial to answer and,
in the meantime, restrained them from proceeding with the case.
In their answer the respondents assert that despite the publicity which
the case had received, no proof has been presented showing that the
court-martial's president's fairness and impartiality have been impaired.
On the contrary, they claim, the petitioner's own counsel expressed
confidence in the "integrity, experience and background" of the members
of the court. As a preliminary consideration, the respondents urge this
Court to throw out the petition on the ground that it has no power to
review the proceedings of the court-martial, "except for the purpose of
ascertaining whether the military court had jurisdiction of the person and
subject matter, and whether, though having such jurisdiction, it had
exceeded its powers in the sentence pronounced," and that at any rate
the petitioners failed to exhaust remedies available to them within the
military justice system.
I
It is true that civil courts as a rule exercise no supervision or correcting
power over the proceedings of courts-martial, and that mere errors in
their proceedings are not open to consideration. "The single inquiry, the
test, is jurisdiction."2 But it is equally true that in the exercise of their
undoubted discretion, courts-martial may commit such an abuse of
discretion what in the language of Rule 65 is referred to as "grave
abuse of discretion" as to give rise to a defect in their jurisdiction.3 This
is precisely the point at issue in this action suggested by its nature as
one for certiorari and prohibition, namely, whether in overruling the
petitioners' challenges, the general court-martial committed such an
abuse of discretion as to call for the exercise of the corrective powers of
this Court. It is thus obvious that no other way is open to this Court by
which it may avoid passing upon the constitutional issue thrust upon it.
Nor will the fact that there may be available remedies within the system
of military justice bar review considering that the questions raised are
questions of law.4
And so the threshold question is whether the publicity given to the case
against the petitioners was such as to prejudice their right to a fair trial.
As already stated, the petitioner Martelino challenged the court-martial
president on the ground that newspaper accounts of what had come to
be referred to as the "Corregidor massacre" might unduly influence the
trial of their case. The petitioner's counsel referred to a news item
appearing in the July 29, 1969 issue of the Daily Mirror and cited other
news reports to the effect that "coffins are being prepared for the
President (of the Philippines) in Jolo," that according to Senator Aquino
"massacre victims were given sea burial," and that Senator Magsaysay,
opposition Vice President candidate, had gone to Corregidor and "found
bullet shells." In addition the petitioners cite in this Court a Manila
Times editorial of August 26, 1969 which states that "The Jabidah [code
name of the training operations] issue was bound to come up in the
course of the election campaign. The opposition could not possibly
ignore an issue that is heavily loaded against the administration." The
petitioners argue that under the circumstances they could not expect a
just and fair trial and that, in overruling their challenge for cause based
on this ground, the general court-martial committed a grave abuse of
discretion. In support of their contention they invoke the rulings of the
United States Supreme Court in Irvin v. Dowd,5 Rideau vs.
Louisiana,6 Estes v. Texas,7 and Shepard v. Maxwell.8
An examination of the cases cited, however, will show that they are
widely disparate from this case in a fundamental sense. In Irvin, for
instance, the Supreme Court found that shortly after the petitioner's
arrest in connection with six murders committed in Vanderburgh County,
Indiana, the prosecutor and police officials issued press releases stating
that the petitioner had confessed to the six murders and that "a barrage
of newspaper headlines articles, cartoons and pictures was unleashed
against him during the six or seven months preceding his trial." In
reversing his conviction, the Court said:
Page 215
Here the "pattern of deep and bitter prejudice' shown to be present
throughout the community, ... was clearly reflected in the sum total of
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
the voir dire examination of a majority of the jurors finally placed in the
jury box. Eight out of the 12 thought petitioner was guilty. With such an
opinion permeating their minds, it would be difficult to say that each could
exclude this preconception of guilt from his deliberations. The influence
that lurks in an opinion once formed is so persistent that it unconsciously
fights detachment from the processes of the average man. ... Where
one's life is at stake and accounting for the frailties of human nature
we can only say that in the light of the circumstances here the finding
of impartiality does not meet the constitutional standard.9
Irvin marks the first time a state conviction was struck down solely on the
ground of prejudicial publicity. 10 In the earlier case of Shepherd v.
Florida, 11 which involved elements of publicity, the reversal of the
conviction was based solely on racial discrimination in the selection of
the jury, although to concurring Justice Jackson, who was joined by
Justice Frankfurter, "It is hard to imagine a more prejudicial influence
than a press release by the officer of the court charged with defendants'
custody stating that they had confessed, and here just such a statement
unsworn to, unseen, uncross-examined and uncontradicted, was
conveyed by the press to the jury. 12
In Rideau, the petitioner, suspect in the robbery of a bank in Lake
Charles, Louisiana and in the kidnapping of three of its employees, and
in the killing of one of them, was similarly given "trial by publicity." Thus,
the day after his arrest, a moving picture film was taken of him in an
"interview" with the sheriff. The "interview," which lasted approximately
20 minutes, consisted of interrogation by the sheriff and admission by
Rideau that he had perpetrated the bank robbery, kidnapping and
murder. The interview was seen and heard on television by 24,000
people. Two weeks later he was arraigned. His lawyers promptly moved
for a change of venue but their motion was denied and Rideau was
convicted and sentenced to death. Rideau's counsel had requested that
jurors be excused for cause, having exhausted all of their peremptory
challenges, but these challenges for cause had been denied by the trial
judge. In reversing his conviction, the Court said:
[W]e hold that it was a denial of due process of law to refuse the request
for a change of venue, after the people of Calcasieu Parish had been
exposed repeatedly and in depth to the spectacle of Rideau personally
confessing in detail to the crimes with which he was later to be charged.
For anyone who has ever watched television the conclusion cannot be
avoided that this spectacle, to the tens of thousands of people who saw
and heard it, in a very real sense was Rideau's trial at which he
pleaded guilty to murder. Any subsequent court proceedings in a
community so pervasively exposed to such a spectacle could be but a
hollow formality. 13
In the third case, Estes, the Court voided a televised criminal trial for
being inherently a denial of due process.
The state ... says that the use of television in the instant case was
"without injustice to the person immediately concerned," basing its
position on the fact that the petitioner has established no isolate
prejudice and that this must be shown in order to invalidate a conviction
in these circumstances. The State paints too broadly in this contention,
for this Court itself has found instances in which a showing of actual
prejudice is not a prerequisite to reversal. This is such a case. It is true
that in most cases involving claims of due process deprivations we
require a showing of identifiable prejudice to the accused. Nevertheless,
at times a procedure employed by the State involves such a probability
that prejudice will result that it is inherently lacking in due process. 14
In Sheppard, the celebrated murder case of Sam Sheppard, who was
accused of the murder of his wife Marilyn, the Supreme Court observed
a "carnival atmosphere" in which "bedlam reigned at the courthouse ...
and newsmen took over practically the entire courtroom, hounding most
of the participants in the trial, especially Sheppard." It observed that
"despite the extent and nature of the publicity to which the jury was
exposed during the trial, the judge refused defense counsel's other
requests that the jury be asked whether they had read or heard specific
prejudicial comment about the case. ... In these circumstances, we
PINEDAPCGRNMAN
assume that some of this material reached members of the jury." The
Court held:
From the cases coming here we note that unfair and prejudicial news
comment on pending trials has become increasingly prevalent. Due
process requires that the accused receive a trial by an impartial jury free
from outside influences. Given the pervasiveness of modern
communications and the difficulty of effacing prejudicial publicity from the
minds of the jurors, the trial courts must take strong measures to ensure
that the balance is never weighed against the accused. And appellate
tribunals have the duty to make an independent evaluation of the
circumstances. Of course, there is nothing that proscribes the press from
reporting events that transpire in the courtroom. But where there is a
reasonable likelihood that prejudicial news prior to trial will prevent a fair
trial, the judge should continue the case until the threat abates, or
transfer it to another county not so permeated with publicity. In addition
sequestration of the jury was something the judge should have sua
sponte with counsel. If publicity during the proceeding threatens the
fairness of the trial, a new trial should be ordered. But we must remember
that reversals are but palliatives; the cure lies in those remedial
measures that will prevent the prejudice at its inception. The courts must
take such steps by rule and regulation that will protect their processes
from prejudicial outside interference. Neither prosecutors, counsel for
defense, the accused, witnesses, court staff nor enforcement officers
coming under the jurisdiction of the court should be permitted to frustrate
its function. Collaboration between counsel and the press as to
information affecting the fairness of a criminal trial is not only subject to
regulation, but is highly censurable and worthy of disciplinary
measure. 15
In contrast the spate of publicity in this case before us did not focus on
the guilt of the petitioners but rather on the responsibility of the
Government for what was claimed to be a "massacre" of Muslim trainees.
If there was a "trial by newspaper" at all, it was not of the petitioners but
of the Government. Absent here is a showing of failure of the court-
martial to protect the accused from massive publicity encouraged by
those connected with the conduct of the trial 16 either by a failure to
control the release of information or to remove the trial to another venue
or to postpone it until the deluge of prejudicial publicity shall have
subsided. Indeed we cannot say that the trial of the petitioners was being
held under circumstances which did not permit the observance of those
imperative decencies of procedure which have come to be identified with
due process.
At all events, even granting the existence of "massive" and "prejudicial"
publicity, since the petitioners here do not contend that the respondents
have been unduly influenced but simply that they might be by the
"barrage" of publicity, we think that the suspension of the court-martial
proceedings has accomplished the purpose sought by the petitioners'
challenge for cause, by postponing the trial of the petitioner until calmer
times have returned. The atmosphere has since been cleared and the
publicity surrounding the Corregidor incident has so far abated that we
believe the trial may now be resumed in tranquility.
II
Article of War 18 provides that "Each side shall be entitled to one
peremptory challenge, but the law member of the court shall not be
challenged except for cause." The general court-martial originally
interpreted this provision to mean that the entire defense was entitled
to only one peremptory challenge. Subsequently, on August 27, 1969, it
changed its ruling and held that the defense was entitled
to eight peremptory challenges, but the petitioners declined to exercise
their right to challenge on the ground that this Court had earlier restrained
further proceedings in the court-martial.
It is the submission of the petitioners that "for every charge, each side
may exercise one peremptory challenge," and therefore because there
are eleven charges they are entitled to eleven separate peremptory
challenges. The respondents, upon the other hand, argue that "for each
Page 216
specification jointly tried, all of the accused are entitled to only one
peremptory challenge and that with respect to specifications tried
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LEGAL ETHICS
commonly each of the accused is entitled to one peremptory challenge."
Although there are actually a total of eleven specifications against the
petitioners, three of these should be considered as merged with two
other specifications, "since in fact they allege the same offenses
committed in conspiracy, thus leaving a balance of eight specifications."
The general court-martial thereof takes the position that all the 23
petitioners are entitled to a total of only eight peremptory challenges.
We thus inescapably confront, and therefore now address, the issue
here posed.
We are of the view that both the petitioners and the general court-martial
misapprehend the true meaning, intent and scope of Article of War 18.
As will hereinafter be demonstrated, each of the petitioners is entitled as
a matter of right to one peremptory challenge. The number of
specifications and/or charges, and whether the accused are being jointly
tried or undergoing a common trial, are of no moment.
In the early formative years of the infant Philippine Army, after the
passage in 1935 of Commonwealth Act No. 1 (otherwise known as the
National Defense Act), except for a handful of Philippine Scout officers
and graduates of the United States military and naval academies who
were on duty with the Philippine Army, there was a complete dearth of
officers learned in military law, this aside from the fact that the officer
corps of the developing army was numerically inadequate for the
demands of the strictly military aspects of the national defense program.
Because of these considerations it was then felt that peremptory
challenges should not in the meanwhile be permitted and that only
challenges for cause, in any number, would be allowed. Thus Article 18
of the Articles of War (Commonwealth Act No. 408), as worded on
September 14, 1938, the date of the approval of the Act, made no
mention or reference to any peremptory challenge by either the trial
judge advocate of a court-martial or by the accused. After December 17,
1958, when the Manual for Courts-Martial 17 of the Philippine Army
became effective, the Judge Advocate General's Service of the
Philippine Army conducted a continuing and intensive program of
training and education in military law, encompassing the length and
breadth of the Philippines. This program was pursued until the outbreak
of World War II in the Pacific on December 7, 1941. After the formal
surrender of Japan to the allies in 1945, the officer corps of the Armed
Forces of the Philippines had expanded to a very large number, and a
great many of the officers had been indoctrinated in military law. It was
in these environmental circumstances that Article of War 18 was
amended on June 12, 1948 to entitle "each side" to one peremptory
challenge, with the sole proviso that "the law member of court shall not
be challenged except for cause."
By its very inherent nature a peremptory challenge does not require any
reason or ground therefor to exist or to be stated. It may be used before,
during, or after challenges for cause, or against a member of the court-
martial unsuccessfully challenged for cause, or against a new member if
not previously utilized in the trial. A member challenged peremptorily is
forthwith excused from duty with the court-martial.
The right of challenge comes from the common law with the trial by jury
itself, and has always been held essential to the fairness of trial by
jury. 18
As was said by Blackstone, and repeated by Mr. Justice Story: 'In
criminal cases, or at least in capital ones, there is in favorem vitae,
allowed to the prisoner an arbitrary and capricious species of challenge
to a certain number of jurors, without showing any cause at all, which is
called a peremptory challenge; a provision full of that tenderness and
humanity to prisoners, for which our English laws are justly famous. This
is grounded on two reasons: 1) As every one must be sensible, what
sudden impression and unaccountable prejudices we are apt to conceive
upon the bare looks and gestures of another; and how necessary it is
that a prisoner (when put to defend his life) should have a good opinion
of his jury, the want of which might totally disconcert him; the law has
conceived a prejudice even without being able to assign a reason for his
dislike. 2) Because, upon challenges for cause shown, if the reason
assigned prove insufficient to set aside the juror, perhaps the bare
PINEDAPCGRNMAN
questioning his indifference may sometimes provoke a resentment, to
prevent all ill consequences from which, the prisoner is still at liberty, if
he pleases, peremptorily to set him aside.' 19
The right to challenge is in quintessence the right to reject, not to select.
If from the officers who remain an impartial military court is obtained, the
constitutional right of the accused to a fair trial is maintained. ... 20
As we have hereinbefore stated, each of the 23 petitioners (accused
before the general court-martial) is entitled to one peremptory
challenge, 21 irrespective of the number of specifications and/or charges
and regardless of whether they are tried jointly or in common. Three
overriding reasons compel us to this conclusion.
First, a peremptory challenge is afforded to an accused who, whether
rightly or wrongly, honestly feels that the member of the court
peremptorily challenged by him cannot sit in judgment over him,
impartially. Every accused person is entitled to a fair trial. It is not enough
that objectively the members of the court may be fair and impartial. It is
likewise necessary that subjectively the accused must feel that he is
being tried by a fair and impartial body of officers. Because the
petitioners may entertain grave doubts as to the fairness or impartiality
of distinct, separate and different individual members of the court-martial,
it follows necessarily that each of the accused is entitled to one
peremptory challenge.
Second, Article of War 18 does not distinguish between common trials
and joint trials, nor does it make the nature or number of specifications
and/or charges a determinant. Reference is made by the respondents
here to US military law, in support of their argument that for each
specification jointly tried all of the accused are entitled to only one
peremptory challenge and with respect to all specifications tried in
common each of the accused is entitled to one peremptory challenge.
We have carefully scrutinized U.S. military law, and it is unmistakable
from our reading thereof that each accused person, whether in a joint or
common trial, unquestionably enjoys the right to one peremptory
challenge. 22
Third, a perceptive analysis of the companion articles 23 to Article 18
convinces us that the word, "each side," as used in the said article in
reference to the defense, should be construed to mean each accused
person. Thus, Articles of War 17 (Trial Judge Advocate to Prosecute;
Counsel to Defend), 19 (Oath), 21 (Refusal or Failure to Plead), 28
(Court to Announce Action), 29 (Closed Sessions), 30 (Method of
Voting), and 36 (Irregularities Effect of), unequivocally speak of and
refer to the "accused" in the singular.
ACCORDINGLY, subject to our pronouncement that each of the 23
petitioners is entitled to one separate peremptory challenge, the present
petition is denied. The temporary restraining order issued by this Court
on August 29, 1969 is hereby lifted. No pronouncement as to costs. .
[A.M. No. 01-4-03-SC. June 29, 2001]
RE: REQUEST RADIO-TV COVERAGE OF THE TRIAL IN THE
SANDIGANBAYAN OF THE PLUNDER CASES AGAINST THE
FORMER PRESIDENT JOSEPH E. ESTRADA, SECRETARY OF
JUSTICE HERNANDO PEREZ, KAPISANAN NG MGA BRODKASTER
NG PILIPINAS, CESAR SARINO, RENATO CAYETANO and ATTY.
RICARDO ROMULO, petitioners, vs. JOSEPH E. ESTRADA and
INTEGRATED BAR OF THE PHILIPPINES, oppositors.
DECISION
VITUG, J.:
The travails of a deposed President continue. The Sandiganbayan reels
to start hearing the criminal charges against Mr. Joseph E.
Estrada. Media seeks to cover the event via live television and live radio
broadcast and endeavors this Court to allow it that kind of access to the
proceedings.
On 13 March 2001, the Kapisanan ng mga Brodkaster ng Pilipinas
(KBP), an association representing duly franchised and authorized
television and radio networks throughout the country, sent a
Page 217
letter[1]requesting this Court to allow live media coverage of the
anticipated trial of the plunder and other criminal cases filed against
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LEGAL ETHICS
former President Joseph E. Estrada before the Sandiganbayan in order
"to assure the public of full ransparency in the proceedings of an
unprecedented case in our history."[2] The request was seconded by Mr.
Cesar N. Sarino in his letter of 05 April 2001 to the Chief Justice and, still
later, by Senator Renato Cayetano and Attorney Ricardo Romulo.
On 17 April 2001, the Honorable Secretary of Justice Hernando Perez
formally filed the instant petition,[3] submitting the following exegesis:
"3. The foregoing criminal cases involve the previous acts of the former
highest official of the land, members of his family, his cohorts and,
therefore, it cannot be over emphasized that the prosecution thereof,
definitely involves a matter of public concern and interest, or a matter
over which the entire citizenry has the right to know, be informed and
made aware of.
" 4. There is no gainsaying that the constitutional right of the people to
be informed on matters of public concern, as in the instant cases, can
best be recognized, served and satisfied by allowing the live radio and
television coverage of the concomitant court proceedings.
"5. Moreover, the live radio and television coverage of the proceedings
will also serve the dual purpose of ensuring the desired transparency in
the administration of justice in order to disabuse the minds of the
supporters of the past regime of any and all unfounded notions, or ill-
perceived attempts on the part of the present dispensation, to 'railroad'
the instant criminal cases against the Former President Joseph Ejercito
Estrada."[4]
Public interest, the petition further averred, should be evident bearing in
mind the right of the public to vital information affecting the nation.
In effect, the petition seeks a re-examination of the 23rd October 1991
resolution of this Court in a case for libel filed by then President Corazon
C. Aquino. The resolution read:
"The records of the Constitutional Commission are bereft of discussion
regarding the subject of cameras in the courtroom. Similarly, Philippine
courts have not had the opportunity to rule on the question squarely.
While we take notice of the September 1990 report of the United States
Judicial Conference Ad Hoc Committee on Cameras in the Courtroom,
still the current rule obtaining in the Federal Courts of the United States
prohibit the presence of television cameras in criminal trials. Rule 53 of
the Federal Rules of Criminal Procedure forbids the taking of
photographs during the progress of judicial proceedings or radio
broadcasting of such proceedings from the courtroom. A trial of any kind
or in any court is a matter of serious importance to all concerned and
should not be treated as a means of entertainment. To so treat it deprives
the court of the dignity which pertains to it and departs from the orderly
and serious quest for truth for which our judicial proceedings are
formulated.
"Courts do not discriminate against radio and television media by
forbidding the broadcasting or televising of a trial while permitting the
newspaper reporter access to the courtroom, since a television or news
reporter has the same privilege, as the news reporter is not permitted to
bring his typewriter or printing press into the courtroom.
"In Estes vs. Texas, the United States Supreme Court held that
television coverage of judicial proceedings involves an inherent denial of
the due process rights of a criminal defendant. Voting 5-4, the Court
through 'Mr. Justice Clark, identified four (4) areas of potential prejudice
which might arise from the impact of the cameras on the jury, witnesses,
the trial judge and the defendant. The decision in part pertinently stated:
"'Experience likewise has established the prejudicial effect of telecasting
on witnesses. Witnesses might be frightened, play to the camera, or
become nervous. They are subject to extraordinary out-of-court
influences which might affect their testimony. Also, telecasting not only
increases the trial judge's responsibility to avoid actual prejudice to the
defendant, it may as well affect his own performance. Judges are human
beings also and are subject to the same psychologjcal reactions as
laymen. For the defendant, telecasting is a form of mental harassment
and subjects him to excessive public exposure and distracts him from
the effective presentation of his defense.
PINEDAPCGRNMAN
'The television camera is a powerful weapon which intentionally or
inadvertently can destroy an accused and his case in the eyes of the
public.'
"Representatives of the press have no special standing to apply for a writ
of mandate to compel a court to permit them to attend a trial, since within
the courtroom, a reporter's constitutional rights are no greater than those
of any other member of the public. Massive intrusion of representatives
of the news media into the trial itself can so alter or destroy the
constitutionally necessary judicial atmosphere and decorum that the
requirements of impartiality imposed by due process of law are denied
the defendant and a defendant in a criminal proceeding should not be
forced to run a gauntlet of reporters and photographers each time he
enters or leaves the courtroom.
"Considering the prejudice it poses to the defendant's right to due
process as well as to the fair and orderly administration of justice, and
considering further that the freedom of the press and the right of the
people to information may be served and satisfied by less distracting,
degrading and prejudicial means, live radio and television coverage of
court proceedings shall not be allowed. Video footages of court hearings
for news purposes shall be restricted and limited to shots of the
courtroom, the judicial officers, the parties and their counsel taken prior
to the commencement of official proceedings. No video shots or
photographs shall be permitted during the trial proper.
"Accordingly, in order to protect the parties right to due process, to
prevent the distraction of the participants in the proceedings and in the
last analysis, to avoid miscarriage of justice, the Court resolved to
PROHIBIT live radio and television coverage of court proceedings. Video
footages of court hearings for news purposes shall be limited and
restricted as above indicated."
Admittedly, the press is a mighty catalyst in awakening public
consciousness, and it has become an important instrument in the quest
for truth.[5] Recent history exemplifies media's invigorating presence, and
its contribution to society is quite impressive. The Court, just recently,
has taken judicial notice of the enormous effect of media in stirring public
sentience during the impeachment trial, a partly judicial and partly
political exercise, indeed the most-watched program in the boob-tubes
during those times, that would soon culminate in EDSA II.
The propriety of granting or denying the instant petition involve the
weighing out of the constitutional guarantees of freedom of the press and
the right to public information, on the one hand, and the fundamental
rights of the accused, on the other hand, along with the constitutional
power of a court to control its proceedings in ensuring a fair and impartial
trial.[6]
When these rights race against one another, jurisprudence[7] tells us that
the right of the accused must be preferred to win.
With the possibility of losing not only the precious liberty but also the very
life of an accused, it behooves all to make absolutely certain that an
accused receives a verdict solely on the basis of a just and dispassionate
judgment, a verdict that would come only after the presentation of
credible evidence testified to by unbiased witnesses unswayed by any
kind of pressure, whether open or subtle, in proceedings that are devoid
of histrionics that might detract from its basic aim to ferret veritable facts
free from improper influence,[8] and decreed by a judge with an
unprejudiced mind, unbridled by running emotions or passions.
Due process guarantees the accused a presumption of innocence until
the contrary is proved in a trial that is not lifted above its individual
settings nor made an object of public's attention[9] and where the
conclusions reached are induced not by any outside force or
influence[10] but only by evidence and argument given in open court,
where fitting dignity and calm ambiance is demanded.
Witnesses and judges may very well be men and women of fortitude,
able to thrive in hardy climate, with every reason to presume firmness of
mind and resolute endurance, but it must also be conceded that
"television can work profound changes in the behavior of the people it
Page 218
focuses on."[11] Even while it may be difficult to quantify the influence, or
pressure that media can bring to bear on them directly and through the
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LEGAL ETHICS
shaping of public opinion, it is a fact, nonetheless, that, indeed, it does
so in so many ways and in varying degrees. The conscious or
unconscious effect that such coverage may have on the testimony of
witnesses and the decision of judges cannot be evaluated but, it can
likewise be said, it is not at all unlikely for a vote of guilt or innocence to
yield to it.[12] It might be farcical to build around them an impregnable
armor against the influence of the most powerful media of public
opinion.[13]
To say that actual prejudice should first be present would leave to near
nirvana the subtle threats to justice that a disturbance of the mind so
indispensable to the calm and deliberate dispensation of justice can
create.[14] The effect of television may escape the ordinary means of
proof, but it is not far-fetched for it to gradually erode our basal
conception of a trial such as we know it now.[15]
An accused has a right to a public trial but it is a right that belongs to him,
more than anyone else, where his life or liberty can be held critically in
balance. A public trial aims to ensure that he is fairly dealt with and would
not be unjustly condemned and that his rights are not compromised in
secrete conclaves of long ago. A public trial is not synonymous with
publicized trial; it only implies that the court doors must be open to those
who wish to come, sit in the available seats, conduct themselves with
decorum and observe the trial process. In the constitutional sense, a
courtroom should have enough facilities for a reasonable number of the
public to observe the proceedings, not too small as to render the
openness negligible and not too large as to distract the trial participants
from their proper functions, who shall then be totally free to report what
they have observed during the proceedings.[16]
The courts recognize the constitutionally embodied freedom of the press
and the right to public information. It also approves of media's exalted
power to provide the most accurate and comprehensive means of
conveying the proceedings to the public and in acquainting the public
with the judicial process in action; nevertheless, within the courthouse,
the overriding consideration is still the paramount right of the accused to
due process[17] which must never be allowed to suffer diminution in its
constitutional proportions. Justice Clark thusly pronounced, "while a
maximum freedom must be allowed the press in carrying out the
important function of informing the public in a democratic society, its
exercise must necessarily be subject to the maintenance of absolute
fairness in the judicial process."[18]
This Court, in the instance[19] already mentioned, citing Estes vs.
Texas,[20] the United States Supreme Court holding the television
coverage of judicial proceedings as an inherent denial of due process
rights of an accused, also identified the following as being likely
prejudices:
"1. The potential impact of television x x x is perhaps of the greatest
significance. x x x. From the moment the trial judge announces that a
case will be televised it becomes a cause celebre. The whole
community, x x x becomes interested in all the morbid details
surrounding it. The approaching trial immediately assumes an important
status in the public press and the accused is highly publicized along with
the offense with which he is charged. Every juror carries with him into
the jury box these solemn facts and thus increases the chance of
prejudice that is present in every criminal case. x x x
"2. The quality of the testimony in criminal trials will often be
impaired. The impact upon a witness of the knowledge that he is being
viewed by a vast audience is simply incalculable. Some may be
demoralized and frightened, some cocky and given to overstatement;
memories may falter, as with anyone speaking publicly, and accuracy of
statement may be severely undermined. x x x. Indeed, the mere fact that
the trial is to be televised might render witnesses reluctant to appear and
thereby impede the trial as well as the discovery of the truth.
"3. A major aspect of the problem is the additional responsibilities the
presence of television places on the trial judge. His job is to make certain
that the accused receives a fair trial. This most difficult task requires his
undivided attention. x x x
PINEDAPCGRNMAN
4. Finally, we cannot ignore the impact of courtroom television on the
defendant. Its presence is a form of mental - if not physical-harassment,
resembling a police line-up or the third degree. The inevitable close-up
of his gestures and expressions during the ordeal of his trial might well
transgress his personal sensibilities, his dignity, and his ability to
concentrate on the proceedings before him - sometimes the difference
between life and death - dispassionately, freely and without the
distraction of wide public surveillance. A defendant on trial for a specific
crime is entitled to his day in court, not in a stadium, or a city or
nationwide arena. The heightened public clamor resulting from radio and
television coverage will inevitably result in prejudice."
In his concurring opinion in Estes, Mr. Justice Harlan opined that live
television and radio coverage could have mischievous potentialities for
intruding upon the detached atmosphere that should always surround
the judicial process.[21]
The Integrated Bar of the Philippines, in its Resolution of 16 April 2001,
expressed its own concern on the live television and radio coverage of
the criminal trials of Mr. Estrada; to paraphrase: Live television and radio
coverage can negate the rule on exclusion of witnesses during the
hearings intended to assure a fair trial; at stake in the criminal trial is not
only the life and liberty of the accused but the very credibility of the
Philippine criminal justice system, and live television and radio coverage
of the trial could allow the "hooting throng" to arrogate unto themselves
the task of judging the guilt of the accused, such that the verdict of the
court will be acceptable only if popular; and live television and radio
coverage of the trial will not subserve the ends of justice but will only
pander to the desire for publicity of a few grandstanding lawyers.
It may not be unlikely, if the minority position were to be adopted, to see
protracted delays in the prosecution of cases before trial courts brought
about by petitions seeking a declaration of mistrial on account of undue
publicity and assailing a court a quo's action either allowing or
disallowing live media coverage of the court proceedings because of
supposed abuse of discretion on the part of the judge.
En passant, the minority would view the ponencia as having modified the
case law on the matter. Just to the contrary, the Court effectively
reiterated its standing resolution of 23 October 1991. Until 1991, the
Court had yet to establish the case law on the matter, and when it did in
its 23rd October resolution, it confirmed, in disallowing live television and
radio coverage of court proceedings, that "the records of the
Constitutional Commission (were) bereft of discussion regarding the
subject of cameras in the courtroom" and that "Philippine courts (had)
not (theretofore) had the opportunity to rule on the question squarely."
But were the cases decided by the U.S. courts and cited in the minority
opinion really in point?
In Nebraska Press Association vs. Stewart,[22] the Nebraska State
trial judge issued an order restraining news media from publishing
accounts of confession or admissions made by the accused or facts
strongly implicating him. The order was struck down. In Richmond
Newspaper, Inc., vs. Virginia,[23] the trial judge closed the courtroom to
the public and all participants except witnesses when they testify. The
judge was reversed by the U.S. Supreme Court which ruled that criminal
trials were historically open. In Globe Newspaper vs. Superior
Court,[24] the US Supreme Court voided a Massachusetts law that
required trial judges to exclude the press and the public from the
courtroom during the testimony of a minor victim of certain sexual
offenses.
Justice Stewart, in Chandler vs. Florida,[25] where two police officers
charged with burglary sought to overturn their conviction before the US
Supreme Court upon the ground that the television coverage had
infringed their right to fair trial, explained that "the constitutional violation
perceived by the Estes Court did not stem from the physical disruption
that might one day disappear with technological advances in the
television equipment but inhered, rather, in the hypothesis that the mere
presence of cameras and recording devices might have an effect on the
Page 219
trial participants prejudicial to the accused."[26]
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LEGAL ETHICS
Parenthetically, the United States Supreme Court and other federal
courts do not allow live television and radio coverage of their
proceedings.
The sad reality is that the criminal cases presently involved are of great
dimensions so involving as they do a former President of the Republic. It
is undeniable that these cases have twice become the nation's focal
points in the two conflicting phenomena of EDSA II and EDSA III where
the magnitude of the events has left a still divided nation. Must these
events be invited anew and risk the relative stability that has thus far
been achieved? The transcendental events in our midst do not allow us
to, turn a blind eye to yet another possible extraordinary case of mass
action being allowed to now creep into even the business of the courts
in the dispensation of justice under a rule of law. At the very least, a
change in the standing rule of the court contained in its resolution of 23
October 1991 may not appear to be propitious.
Unlike other government offices, courts do not express the popular will
of the people in any sense which, instead, are tasked to only adjudicate
justiciable controversies on the basis of what alone is submitted before
them.[27] A trial is not a free trade of ideas. Nor is a competing market of
thoughts the known test truth in a courtroom.[28]
The Court is not all that unmindful of recent technological and scientific
advances but to chance forthwith the life or liberty of any person in a
hasty to bid to use and apply them, even before ample safety nets are
provided and the concerns heretofore expressed are aptly addressed, is
a price too high to pay.
WHEREFORE, the petition is DENIED.
SO ORDERED.
FOODSPHERE, INC., A.C. No. 7199
Complainant, [Formerly CBD 04-1386]
Present:
PUNO, C.J.
- versus - QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
CORONA,
CARPIO MORALES,
ATTY. MELANIO L. MAURICIO, JR., CHICO-NAZARIO
Respondent. VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA, and
BERSAMIN, JJ.
Promulgated:
July 22, 2009
x--------------------------------------------------x
DECISION
CARPIO MORALES, J.:
Foodsphere, Inc. (complainant), a corporation engaged in the business
of meat processing and manufacture and distribution of canned goods
and grocery products under the brand name CDO, filed a Verified
Complaint[1] for disbarment before the Commission on Bar Discipline
(CBD) of the Integrated Bar of the Philippines (IBP) against Atty. Melanio
L. Mauricio, Jr., popularly known as Batas Mauricio (respondent), a
writer/columnist of tabloids including Balitang Patas BATAS, Bagong
TIKTIK, TORO and HATAW!,and a host of a television
program KAKAMPI MO ANG BATAS telecast over UNTV and of a radio
PINEDAPCGRNMAN
program Double B-BATAS NG BAYAN aired over DZBB, for (1) grossly
immoral conduct; (2) violation of lawyers oath and (3) disrespect to the
courts and to investigating prosecutors.
The facts that spawned the filing of the complaint are as follows:
On June 22, 2004, a certain Alberto Cordero (Cordero) purportedly
bought from a grocery in Valenzuela City canned goods including a can
of CDO Liver spread. On June 27, 2004, as Cordero and his relatives
were eating bread with the CDO Liver spread, they found the spread to
be sour and soon discovered a colony of worms inside the can.
Corderos wife thus filed a complaint with the Bureau of Food and Drug
Administration (BFAD). Laboratory examination confirmed the presence
of parasites in the Liver spread.
Pursuant to Joint DTI-DOH-DA Administrative Order No. 1, Series of
1993, the BFAD conducted a conciliation hearing on July 27, 2004 during
which the spouses Cordero demanded P150,000 as damages from
complainant. Complainant refused to heed the demand, however, as
being in contravention of company policy and, in any event, outrageous.
Complainant instead offered to return actual medical and incidental
expenses incurred by the Corderos as long as they were supported by
receipts, but the offer was turned down. And the Corderos threatened to
bring the matter to the attention of the media.
Complainant was later required by the BFAD to file its Answer to
the complaint. In the meantime or on August 6, 2004, respondent sent
complainant via fax a copy of the front page of the would-be August 10-
16, 2004 issue of the tabloid Balitang Patas BATAS, Vol. 1, No.
12[2] which complainant found to contain articles maligning, discrediting
and imputing vices and defects to it and its products. Respondent
threatened to publish the articles unless complainant gave in to
the P150,000 demand of the Corderos. Complainant thereupon
reiterated its counter-offer earlier conveyed to the Corderos, but
respondent turned it down.
Respondent later proposed to settle the matter for P50,000, P15,000 of
which would go to the Corderos and P35,000 to
his BATAS Foundation. And respondent directed complainant to place
paid advertisements in the tabloids and television program.
The Corderos eventually forged a KASUNDUAN[3] seeking the
withdrawal of their complaint before the BFAD. The BFAD thus
dismissed the complaint.[4] Respondent, who affixed his signature to
the KASUNDUAN as a witness, later wrote in one of his articles/columns
in a tabloid that he prepared the document.
On August 11, 2004, respondent sent complainant an Advertising
Contract[5] asking complainant to advertise in the tabloid Balitang Patas
BATAS for its next 24 weekly issues at P15,000 per issue or a total
amount of P360,000, and a Program Profile[6] of the television
program KAKAMPI MO ANG BATAS also asking complainant to place
spot advertisements with the following rate cards: (a) spot buy 15-second
TVC at P4,000; (b) spot buy 30-second TVC at P7,700; and (c) season
buy [13 episodes, 26 spots] of 30-second TVC for P130,000.
As a sign of goodwill, complainant offered to buy three full-page
advertisements in the tabloid amounting to P45,000 at P15,000 per
advertisement, and three spots of 30-second TVC in the television
program at P7,700 each or a total of P23,100. Acting on complainants
offer, respondent relayed to it that he and his Executive Producer were
disappointed with the offer and threatened to proceed with the
Page 220
publication of the articles/columns.[7]
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
On August 28, 2004, respondent, in his radio program Double B- BATAS
NG BAYAN at radio station DZBB, announced the holding of a supposed
contest sponsored by said program, which announcement was
transcribed as follows:
OK, at meron akong pa-contest, total magpapasko na o ha, meron pa-
contest si Batas Mauricio ang Batas ng Bayan. Ito yung ating pa-contest,
hulaan ninyo, tatawag kayo sa telepono, 433-7549 at 433-7553. Ang
mga premyo babanggitin po natin sa susunod pero ito muna ang contest,
o, aling liver spread ang may uod? Yan kita ninyo yan, ayan
malalaman ninyo yan. Pagka-nahulaan yan ah, at sasagot kayo sa
akin, aling liver spread ang may uod at anong companya ang
gumagawa nyan? Itawag po ninyo sa 433-7549 st 433-7553. Open po
an[g] contest na ito sa lahat ng ating tagapakinig. Pipiliin natin ang
mananalo, kung tama ang inyong sagot. Ang tanong, aling liver
spread sa Pilipinas an[g] may uod? [8] (Emphasis and italics in the
original; underscoring supplied)
And respondent wrote in his columns in the tabloids articles which put
complainant in bad light. Thus, in the August 31- September 6, 2004
issue of Balitang Patas BATAS, he wrote an article captioned KADIRI
ANG CDO LIVER SPREAD! In another article, he wrote IBA PANG
PRODUKTO NG CDO SILIPIN![9] which appeared in the same
publication in its September 7-13, 2004 issue. And still in the same
publication, its September 14-20, 2004 issue, he wrote another article
entitled DAPAT BANG PIGILIN ANG CDO.[10]
Respondent continued his tirade against complainant in his
column LAGING HANDA published in another tabloid, BAGONG
TIKTIK, with the following articles:[11] (a) Uod sa liver spread, Setyembre
6, 2004 (Taon 7, Blg.276);[12] (b) Uod, itinanggi ng CDO, Setyembre 7,
2004 (Taon 7, Blg.277);[13] (c) Pagpapatigil sa CDO, Setyembre 8, 2004
(Taon 7, Blg.278);[14] (d) Uod sa liver spread kumpirmado, Setyembre 9,
2004 (Taon 7, Blg.279);[15] (e) Salaysay ng nakakain ng uod, Setyembre
10, 2004 (Taon 7, Blg.280);[16] (f)Kaso VS. CDO itinuloy, Setyembre 11,
2004 (Taon 7, Blg.281);[17] (g) Kasong Kidnapping laban sa CDO guards,
Setyembre 14, 2004 (Taon 7, Blg.284);[18] (h) Brutalidad ng CDO
guards, Setyembre 15, 2004 (Taon 7, Blg.285);[19] (i) CDO guards
pinababanatan sa PNP, Setyembre 17, 2004 (Taon 7,
Blg.287);[20] (j) May uod na CDO liver spread sa Puregold binili,
Setyembre 18, 2004 (Taon 7, Blg.288);[21] (k) Desperado na ang
CDO, Setyembre 20, 2004 (Taon 7, Blg.290);[22] (l) Atty. Rufus
Rodriguez pumadrino sa CDO, Setyembre 21, 2004 (Taon 7,Blg.
291);[23] (m) Kasunduan ng CDO at Pamilya Cordero, Setyembre 22,
2004 (Taon 7,Blg. 292);[24] (n) Bakit nagbayad ng P50 libo ang CDO,
Setyembre 23, 2004 (Taon 7,Blg. 293).[25]
In his September 8, 2004 column Anggulo ng Batas published in Hataw!,
respondent wrote an article Reaksyon pa sa uod ng CDO Liver
Spread.[26]
And respondent, in several episodes in September 2004 of his television
program Kakampi Mo ang Batas aired over UNTV, repeatedly
complained of what complainant claimed to be the same baseless and
malicious allegations/issues against it.[27]
Complainant thus filed criminal complaints against respondent and
several others for Libel and Threatening to Publish Libel under Articles
353 and 356 of the Revised Penal Code before the Office of the City
Prosecutor of Quezon City and Valenzuela City. The complaints were
pending at he time of the filing of the present administrative complaint.[28]
In the criminal complaints pending before the Office of the City
Prosecutor of Valenzuela City, docketed as I.S. Nos. V-04-2917-2933,
respondent filed his Entry of Appearance with Highly Urgent Motion to
Elevate These Cases to the Department of Justice,[29] alleging:
PINEDAPCGRNMAN
xxxx
2.N. The question here is this: What gives, Honorable (???) Prosecutors
of the Office of the City Prosecutor of Valenzuela City?
xxxx
2.R. Can an ordinary person like Villarez simply be tossed around,
waiting for miracles to happen?
2.S. Why? How much miracle is needed to happen here before this
Office would ever act on his complaint?
xxxx
8. With a City Prosecutor acting the way he did in the case filed by
Villarez, and with an investigating prosecutor virtually kowtowing to the
wishes of his boss, the Chief Prosecutor, can Respondents expect
justice to be meted to them?
9. With utmost due respect, Respondents have reason to believe that
justice would elude them in this Office of the City Prosecutor of
Valenzuela City, not because of the injustice of their cause, but, more
importantly, because of the injustice of the system;
10. Couple all of these with reports that many a government office in
Valenzuela City had been the willing recipient of too many generosities
in the past of the Complainant, and also with reports that a top official of
the City had campaigned for his much coveted position in the past
distributing products of the Complainant, what would one expect the
Respondents to think?
11. Of course, not to be lost sight of here is the attitude and behavior
displayed even by mere staff and underlings of this Office to people who
dare complain against the Complainant in their respective turfs. Perhaps,
top officials of this Office should investigate and ask their associates and
relatives incognito to file, even if on a pakunwari basis only, complaints
against the Complainant, and they would surely be given the same rough
and insulting treatment that Respondent Villarez got when he filed his
kidnapping charge here;[30]
And in a Motion to Dismiss [the case] for Lack of Jurisdiction[31] which
respondent filed, as counsel for his therein co-respondents-staffers of
the newspaper Hataw!, before the Office of the City Prosecutor of
Valenzuela City, respondent alleged:
xxxx
5. If the Complainant or its lawyer merely used even a little of
whatever is inside their thick skulls, they would have clearly deduced
that this Office has no jurisdiction over this action.[32] (Emphasis
supplied)
xxxx
Meanwhile, on October 26, 2004, complainant filed a civil case against
respondent and several others, docketed as Civil Case No. 249-V-
04,[33] before the Regional Trial Court, Valenzuela City and raffled to
Branch 75 thereof.
The pending cases against him and the issuance of a status quo order
notwithstanding, respondent continued to publish articles against
complainant[34] and to malign complainant through his television shows.
Acting on the present administrative complaint, the Investigating
Page 221
Commissioner of the Integrated Bar of the Philippines (IBP) came up with
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
the following findings in his October 5, 2005 Report and
Recommendation:[35]
I.
xxxx
In Civil Case No. 249-V-04 entitled Foodsphere, Inc. vs. Atty. [Melanio]
Mauricio, et al., the Order dated 10 December 2004 (Annex O of the
Complaint) was issued by Presiding Judge Dionisio C. Sison which in
part reads:
Anent the plaintiffs prayer for the issuance of a temporary restraining
order included in the instant plaintiffs motion, this Court, inasmuch as the
defendants failed to appear in court or file an opposition thereto, is
constrained to GRANT the said plaintiffs prater, as it is GRANTED, in
order to maintain STATUS QUO, and that all the defendants, their
agents, representatives or any person acting for and in behalf are hereby
restrained/enjoined from further publishing, televising and/or
broadcasting any matter subject of the Complaint in the instant
case more specifically the imputation of vices and/or defects on plaintiff
and its products.
Complainant alleged that the above-quoted Order was served on
respondent by the Branch Sheriff on 13 December 2004. Respondent
has not denied the issuance of the Order dated 10 December 2004 or
his receipt of a copy thereof on 13 December 2004.
Despite his receipt of the Order dated 10 December 2004, and the clear
directive therein addressed to him to desists [sic] from further publishing,
televising and/or broadcasting any matter subject of the Complaint in the
instant case more specifically the imputation of vices and/or defects on
plaintiff and its products, respondent in clear defiance of this Order came
out with articles on the prohibited subject matter in his column Atty.
Batas, 2004 in the December 16 and 17, 2004 issues of the tabloid
Balitang Bayan Toro (Annexes Q and Q-1 of the Complaint).
The above actuations of respondent are also in violation of Rule 13.03
of the Canon of Professional Responsibility which reads: A lawyer shall
not make public statements in the media regarding a pending case
tending to arouse public opinion for or against a party.
II.
xxxx
In I.S. No. V.04-2917-2933, then pending before the Office of the City
Prosecutor of Valenzuela City, respondent filed his Entry of Appearance
with Highly Urgent Motion to Elevate These Cases To the Department of
Justice. In said pleading, respondent made the following statements:
xxxx
The above language employed by respondent undoubtedly casts
aspersions on the integrity of the Office of the City Prosecutor and all the
Prosecutors connected with said Office. Respondent clearly assailed the
impartiality and fairness of the said Office in handling cases filed before
it and did not even design to submit any evidence to substantiate said
wild allegations. The use by respondent of the above-quoted language
in his pleadings is manifestly violative of Canon 11 of the Code of
Professional Responsibility which provides: A lawyer [s]hall [o]bserve
and [m]aintain [t]he [re]spect [d]ue [t]o [t]he [c]ourts [a]nd [t]o [j]udicial
[o]fficers [a]nd [s]hould [i]nsist [o]n [s]imilar [c]onduct [b]y [o]thers.
III.
PINEDAPCGRNMAN
The Kasunduan entered into by the Spouses Cordero and herein
complainant (Annex C of the Complaint) was admittedly prepared,
witnessed and signed by herein respondent.
xxxx
In its Order dated 16 August 2004, the Bureau of Food and Drugs
recognized that the said Kasunduan was not contrary to law, morals,
good customs, public order and policy, and this accordingly dismissed
the complaint filed by the Spouses Cordero against herein complainant.
However, even after the execution of the Kasunduan and the
consequent dismissal of the complaint of his clients against herein
complainant, respondent inexplicably launched a media offensive
intended to disparage and put to ridicule herein complainant. On record
are the numerous articles of respondent published in 3 tabloids
commencing from 31 August to 17 December 2004 (Annexes G to Q-1).
As already above-stated, respondent continued to come out with these
articles against complainant in his tabloid columns despite a temporary
restraining order issued against him expressly prohibiting such actions.
Respondent did not deny that he indeed wrote said articles and
submitted them for publication in the tabloids.
Respondent claims that he was prompted by his sense of public service,
that is, to expose the defects of complainants products to the consuming
public. Complainant claims that there is a baser motive to the actions of
respondent. Complainant avers that respondent retaliated for
complainants failure to give in to respondents request that complainant
advertise in the tabloids and television programs of respondent.
Complainants explanation is more credible. Nevertheless, whatever the
true motive of respondent for his barrage of articles against complainant
does not detract from the fact that respondent consciously violated the
spirit behind the Kasunduan which he himself prepared and signed and
submitted to the BFAD for approval. Respondent was less than forthright
when he prepared said Kasunduan and then turned around and
proceeded to lambaste complainant for what was supposedly already
settled in said agreement. Complainant would have been better of with
the BFAD case proceeding as it could have defended itself against the
charges of the Spouses Cordero. Complainant was helpless against the
attacks of respondent, a media personality. The actuations of
respondent constituted, to say the least, deceitful conduct contemplated
under Rule 1.01 of Canon 1 of the Code of Professional
Responsibility.[36](Underscoring supplied)
The IBP Board of Governors, by Resolution No. XVIII-2006-114 dated
March 20, 2006, adopted the findings and recommendation of the
Investigating Commissioner to suspend respondent from the practice of
law for two years.
The Court finds the findings/evaluation of the IBP well-taken.
The Court, once again, takes this occasion to emphasize the necessity
for every lawyer to act and comport himself in a manner that promotes
public confidence in the integrity of the legal profession,[37] which
confidence may be eroded by the irresponsible and improper conduct of
a member of the bar.
By the above-recited acts, respondent violated Rule 1.01 of the Code of
Professional Responsibility which mandates lawyers to refrain from
engaging in unlawful, dishonest, immoral or deceitful conduct. For, as
the IBP found, he engaged in deceitful conduct by, inter alia, taking
advantage of the complaint against CDO to advance his interest to obtain
funds for his BATAS Foundation and seek sponsorships and
Page 222
advertisements for the tabloids and his television program.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
He also violated Rule 13.02 of the Code of Professional
Responsibility, which mandates:
A lawyer shall not make public statements in the media regarding a
pending case tending to arouse public opinion for or against a party.
For despite the pendency of the civil case against him and the issuance
of a status quo order restraining/enjoining further publishing, televising
and broadcasting of any matter relative to the complaint of CDO,
respondent continued with his attacks against complainant and its
products. At the same time, respondent violated Canon 1 also of the
Code of Professional Responsibility, which mandates lawyers to uphold
the Constitution, obey the laws of the land and promote respect for law
and legal processes. For he defied said status quo order, despite his
(respondents) oath as a member of the legal profession to obey the laws
as well as the legal orders of the duly constituted authorities.
Further, respondent violated Canon 8 and Rule 8.01 of the Code of
Professional Responsibility which mandate, viz:
CANON 8 - A lawyer shall conduct himself with courtesy, fairness and
candor toward his professional colleagues, and shall avoid harassing
tactics against opposing counsel.
Rule 8.01 A lawyer shall not, in his professional dealings, use language
which is abusive, offensive or otherwise improper, by using intemperate
language.
Apropos is the following reminder in Saberon v. Larong:[38]
To be sure, the adversarial nature of our legal system has tempted
members of the bar to use strong language in pursuit of their duty to
advance the interests of their clients.
However, while a lawyer is entitled to present his case with vigor and
courage, such enthusiasm does not justify the use of offensive and
abusive language. Language abounds with countless possibilities for
one to be emphatic but respectful, convincing but not derogatory,
illuminating but not offensive.
On many occasions, the Court has reminded members of the Bar
to abstain from all offensive personality and to advance no fact
prejudicial to the honor and reputation of a party or witness, unless
required by the justice of the cause with which he is charged. In keeping
with the dignity of the legal profession, a lawyers language even in his
pleadings must be dignified.[39](Underscoring supplied)
By failing to live up to his oath and to comply with the exacting standards
of the legal profession, respondent also violated Canon 7 of the Code of
Professional Responsibility, which directs a lawyer to at all times uphold
the integrity and the dignity of the legal profession.[40]
The power of the media to form or influence public opinion cannot be
underestimated. In Dalisay v. Mauricio, Jr.,[41] the therein complainant
engaged therein-herein respondents services as she was impressed by
the pro-poor and pro-justice advocacy of respondent, a media
personality,[42] only to later find out that after he demanded and the
therein complainant paid an exorbitant fee, no action was taken nor any
pleadings prepared by him. Respondent was suspended for six months.
On reading the articles respondent published, not to mention listening to
him over the radio and watching him on television, it cannot be gainsaid
that the same could, to a certain extent, have affected the sales of
complainant.
PINEDAPCGRNMAN
Back to Dalisay, this Court, in denying therein-herein respondents
motion for reconsideration, took note of the fact that respondent was
motivated by vindictiveness when he filed falsification charges against
the therein complainant.[43]
To the Court, suspension of respondent from the practice of law for three
years is, in the premises, sufficient.
WHEREFORE, Atty. Melanio Mauricio is, for violation of the lawyers oath
and breach of ethics of the legal profession as embodied in the Code of
Professional Responsibility, SUSPENDED from the practice of law for
three years effective upon his receipt of this Decision. He
is WARNED that a repetition of the same or similar acts will be dealt with
more severely.
Let a copy of this Decision be attached to his personal record and copies
furnished the Integrated Bar of the Philippines and the Office of the Court
Administrator for dissemination to all courts.
SO ORDERED.
Rule 13.03 A lawyer shall not brook or invite interference by
another branch or agency of the government in the normal course
of judicial proceedings.
The judge has the corresponding duty not to convey or permit
others to convey the impression that they are in a special
position to influence the judge.
Discussing cases with the judge privately should be avoided.
Test when public statement is contemptuous: The character
of the act done and its direct tendency to prevent and obstruct
the discharge of official duty.
To warrant a finding of prejudicial publicity, there must be
an allegation and proof that the judges have been unduly
influenced, not simply that they might be, by the barrage of
publicity.
Lawyer is equally guilty as the client if he induces the latter to
cause the publicity.
G.R. No. 90083 October 4, 1990
KHALYXTO PEREZ MAGLASANG, accused-petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Presiding Judge ERNESTO B.
TEMPLADO (San Carlos City Court), Negros
Occidental, respondents.
Marceliano L. Castellano for petitioner.
RESOLUTION
PER CURIAM:
On June 22, 1989, a petition for certiorari 1 entitled "Khalyxto Perez
Maglasang vs. People of the Philippines, Presiding Judge, Ernesto B.
Templado (San Carlos City Court) Negros Occidental," was filed by
registered mail with the Court. Due to non-compliance with the
requirements of Circular No. 1-88 of the Court, specifically the non-
payment of P316.50 for the legal fees and the non-attachment of the
duplicate originals or duly certified true copies of the questioned decision
and orders of the respondent judge denying the motion for
reconsideration, the Court dismissed the petition on July 26, 1989. 2
On September 9, 1989, Atty. Marceliano L. Castellano, as counsel of the
petitioner, moved for a reconsideration of the resolution dismissing the
petition. 3 This time, the amount of P316.50 was remitted and the Court
was furnished with a duplicate copy of the respondent judge's decision,
and also the IBP O.R. No. and the date of the payment of his
membership dues. The motion for reconsideration did not contain the
duplicate original or certified true copies of the assailed orders. Thus, in
Page 223
a Resolution dated October 18, 1989, the motion for reconsideration was
denied "with FINALITY."4
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Three months later, or on January 22, 1990 to be exact, the Court
received from Atty. Castellano a copy of a complaint dated December
19, 1989, filed with the Office of the President of the Philippines whereby
Khalyxto Perez Maglasang, through his lawyer, Atty. Castellano, as
complainant, accused all the five Justices of the Court's Second Division
with "biases and/or ignorance of the law or knowingly rendering unjust
judgments or resolution." 5The complaint was signed by Atty. Castellano
"for the complainant" with the conformity of one Calixto B. Maglasang,
allegedly the father of accused-complainant Khalyxto. 6 By reason of the
strong and intemperate language of the complaint and its improper filing
with the Office of the President, which, as he should know as a lawyer,
has no jurisdiction to discipline, much more, remove, Justices of the
Supreme Court, on February 7, 1990, Atty. Castellano was required to
show cause why he should not be punished for contempt or
administratively dealt with for improper conduct. 7 On March 21, 1990,
Atty. Castellano filed by registered mail his "Opposition To Cite For
Contempt Or Administratively Dealt With For An Improper Conduct
(sic)." 8
In his "Opposition", Atty. Castellano claimed that the complaint "was a
constructive criticism intended to correct in good faith the erroneous and
very strict practices of the Justices concerned, as Respondents
(sic). 9 Atty. Castellano further disputed the authority and jurisdiction of
the Court in issuing the Resolution requiring him to show cause
inasmuch as "they are Respondents in this particular case and no longer
as Justices and as such they have no more jurisdiction to give such
order." 10 Thus, according to him, "the most they (Justices) can do by the
mandate of the law and procedure (sic) is to answer the complaint
satisfactorily so that they will not be punished in accordance with the law
just like a common tao." 11
Notwithstanding his claim that the complaint was a "constructive
criticism," the Court finds the various statements made by Atty.
Castellano in the complaint he lodged with the Office of the President of
the Philippines and in his "Opposition" filed with the Court portions of
which read as follows:
VI
That with all these injustices of the 2nd Division, as assigned to that most
Honorable Supreme Court, the complainant was legally constrained to
file this Administrative Complaint to our Motherly President who is firm
and determined to phase-out all the scalawags (Marcos Appointees and
Loyalists) still in your administration without bloodshed but by honest and
just investigations, which the accused-complainant concurs to such
procedure and principle, or otherwise, he could have by now a rebel with
the undersigned with a cause for being maliciously deprived or unjustly
denied of Equal Justice to be heard by our Justices designated to the
Highest and most Honorable Court of the Land (Supreme
Court); 12 (Emphasis ours.)
VII
That the Honorable Supreme Court as a Court has no fault at all for being
Constitutionally created, but the Justices assigned therein are fallables
(sic), being bias (sic), playing ignorance of the law and knowingly
rendering unjust Resolutions the reason observed by the undersigned
and believed by him in good faith, is that they are may be Marcos-
appointees, whose common intention is to sabotage the Aquino
Administration and to rob from innocent Filipino people the genuine
Justice and Democracy, so that they will be left in confusion and turmoil
to their advantage and to the prejudice of our beloved President's honest,
firm and determined Decision to bring back the real Justice in all our
Courts, for the happiness, contentment and progress of your people and
the only country which God has given us. PHILIPPINES. 13 (Emphasis
ours.)
VIII
That all respondents know the law and the pure and simple meaning of
Justice, yet they refused to grant to the poor and innocent accused-
complainant, so to save their brethren in rank and office (Judiciary)
Judge Ernesto B. Templado, . . . 14
IX
PINEDAPCGRNMAN
. . . If such circulars were not known to the undersigned, it's the fault of
the Justices of the Honorable Supreme Court, the dismissal of the
petition was based more of money reasons. . . . This is so for said Equal
Justice is our very Breath of Life to every Filipino, who is brave to face
the malicious acts of the Justices of the Second Division, Supreme Court.
By reason of fear for the truth Respondents ignore the equal right of the
poor and innocent-accused (complainant) to be heard against the rich
and high-ranking person in our Judiciary to be heard in equal justice in
our Honorable Court, for the respondents is too expensive and can't be
reached by an ordinary man for the Justices therein areinconsiderate,
extremely strict and meticulous to the common tao and hereby grossly
violate their Oath of Office and our Constitution "to give all possible help
and means to give equal Justice to any man, regardless of ranks and
status in life" 15 (Emphasis ours.)
xxx xxx xxx
5. That the undersigned had instantly without delay filed a Motion for
Reconsideration to the Resolution which carries with it a final denial of
his appeal by complying (sic) all the requirements needed for a valid
appeal yet the respondents denied just the same which legally hurt the
undersigned in the name of Justice, for the Respondents-Justices, were
so strict or inhumane and soinconsiderate that there despensation (sic)
of genuine justice was too far and beyond the reach of the Accused-
Appellant, as a common tao, as proved by records of both cases
mentioned above. 16
xxx xxx xxx
D. That by nature a contempt order is a one sided weapon commonly
abused by Judges and Justices, against practicing lawyers, party-
litigants and all Filipino people in general for no Judges or Justices since
the beginning of our Court Records were cited for contempt by any
presiding Judge. That this weapon if maliciously applied is a cruel means
to silence a righteous and innocent complainant and to favor any person
with close relation. 17
scurrilous and contumacious. His allegations that the Court in dismissing
his petition did so "to save their brethren in rank and office (Judiciary)
Judge Ernesto B. Templado," and that the dismissal was "based more
for (sic) money reasons;" and his insinuation that the Court maintains a
double standard in dispensing justice one set for the rich and another
for the poor went beyond the bounds of "constructive criticism." They
are not relevant to the cause of his client. On the contrary, they cast
aspersion on the Court's integrity as a neutral and final arbiter of all
justiciable controversies brought before it. Atty. Castellano should know
that the Court in resolving complaints yields only to the records before it
and not to any extraneous influence as he disparagingly intimates.
It bears stress that the petition was dismissed initially by the Court for
the counsel's failure to fully comply with the requirements laid down in
Circular No. 1-88, a circular on expeditious disposition of cases, adopted
by the Court on November 8, 1988, but effective January 1, 1989, after
due publication. It is true that Atty. Castellano later filed on behalf of his
client a motion for reconsideration and remitted the necessary legal
fees, 18 furnished the Court with a duplicate original copy of the assailed
trial court's decision, 19 and indicated his IBP O.R. No. and the date he
paid his dues. 20 But he still fell short in complying fully with the
requirements of Circular No. 1-88. He failed to furnish the Court with
duplicate original or duty certified true copies of the other questioned
orders issued by the respondent trial court judge. At any rate, the
explanation given by Atty. Castellano did not render his earlier
negligence excusable. Thus, as indicated in our Resolution dated
October 18, 1989 which denied with finality his motion for
reconsideration, "no valid or compelling reason (having been) adduced
to warrant the reconsideration sought." Precisely, under paragraph 5 of
Circular No. 1-88 it is provided that "(S)ubsequent compliance with the
above requirements will not warrant reconsideration of the order of
dismissal unless it be shown that such non-compliance was due to
compelling reasons."
Page 224
It is clear that the case was lost not by the alleged injustices Atty.
Castellano irresponsibly ascribed to the members of the Court's Second
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Division, but simply because of his inexcusable negligence and
incompetence. Atty. Castellano, however, seeks to pass on the blame
for his deficiencies to the Court, in the hope of salvaging his reputation
before his client. Unfortunately, the means by which Atty. Castellano
hoped to pass the buck so to speak, are grossly improper. As an officer
of the Court, he should have known better than to smear the honor and
integrity of the Court just to keep the confidence of his client. Time and
again we have emphasized that a "lawyer's duty is not to his client but to
the administration of justice; to that end, his client's success is wholly
subordinate; and his conduct ought to and must always be scrupulously
observant of law and ethics." 21 Thus, "while a lawyer must advocate his
client's cause in utmost earnest and with the maximum skill he can
marshal, he is not at liberty to resort to arrogance, intimidation, and
innuendo." 22
To be sure, the Court does not pretend to be immune from criticisms.
After all, it is through the criticism of its actions that the Court, composed
of fallible mortals, hopes to correct whatever mistake it may have
unwittingly committed. But then again, "[i]t is the cardinal condition of all
such criticism that it shall be bona fide and shall not spill over the walls
of decency and propriety. A wide chasm exists between fair criticism, on
the one hand, and abuse and slander of courts and the judges thereof,
on the other. Intemperate and unfair criticism is a gross violation of the
duty of respect to courts." 23 In this regard, it is precisely provided under
Canon 11 of the Code of Professional Responsibility that:
CANON 11-A LAWYER SHALL OBSERVE AND MAINTAIN THE
RESPECT DUE TO THE COURTS AND TO JUDICIAL OFFICERS AND
SHOULD INSIST ON SIMILAR CONDUCT BY OTHERS.
xxx xxx xxx
RULE 11.03 A lawyer shall abstain from scandalous, offensive or
menancing language or behavior before the courts.
RULE 11.04 A lawyer should not attribute to a judge motives not
supported by the record or have materiality to the case.
xxx xxx xxx
We further note that in filing the "complaint" against the justices of the
Court's Second Division, even the most basic tenet of our government
system the separation of powers between the judiciary, the executive,
and the legislative branches has been lost on Atty. Castellano. We
therefore take this occasion to once again remind all and sundry that "the
Supreme Court is supreme the third great department of government
entrusted exclusively with the judicial power to adjudicate with finality all
justiciable disputes, public and private. No other department or agency
may pass upon its judgments or declare them 'unjust.'" 24 Consequently,
and owing to the foregoing, not even the President of the Philippines as
Chief Executive may pass judgment on any of the Court's acts.
Finally, Atty. Castellano's assertion that the complaint "was a
constructive criticism intended to correct in good faith the erroneous and
very strict practices of the Justices, concerned as Respondents (sic)" is
but a last minute effort to sanitize his clearly unfounded and irresponsible
accusation. The arrogance displayed by counsel in insisting that the
Court has no jurisdiction to question his act of having complained before
the Office of the President, and in claiming that a contempt order is used
as a weapon by judges and justices against practicing lawyers, however,
reveals all too plainly that he was not honestly motivated in his criticism.
Rather, Atty. Castellano's complaint is a vilification of the honor and
integrity of the Justices of the Second Division of the Court and an
impeachment of their capacity to render justice according to law.
WHEREFORE, Atty. Marceliano L. Castellano is found guilty of
CONTEMPT OF COURT and IMPROPER CONDUCT as a member of
the Bar and an officer of the Court, and is hereby ordered to PAY within
fifteen (15) days from and after the finality of this Resolution a fine of One
Thousand (P1,000.00) Pesos, or SUFFER ten (10) days imprisonment
in the municipal jail of Calatrava, Negros Occidental in case he fails to
pay the fine seasonably, and SUSPENDED from the practice of law
throughout the Philippines for six (6) months as soon as this Resolution
becomes final, with a WARNING that a repetition of any misconduct on
his part will be dealt with more severely. Let notice of this Resolution be
PINEDAPCGRNMAN
entered in Atty. Castellano's record, and be served on the Integrated Bar
of the Philippines, the Court of Appeals, and the Executive Judges of the
Regional Trial Courts and other Courts of the country, for their
information and guidance.
SO ORDERED.
THE LAWYER AND THE CLIENT
A. NATURE OF ATTORNEY-CLIENT RELATIONSHIP
(1) Strictly Personal
(2) Highly confidential
(3) Fiduciary
FORMS OF EMPLOYMENT OF THE COUNSEL
(1) Oral
(2) Written
(3) Implied
A written contract between the counsel and the client is the best evidence
to show the presence of an attorney-client relationship. However, it is not
essential for the employment of an attorney.
B. THE CONCEPT OF RETAINER OR EMPLOYMENT
a. Concept of Retainer and its Necessity ROC Rule 138 Section 21.
Authority of attorney to appear. an attorney is presumed to be properly
authorized to represent any cause in which he appears, and no written
power of attorney is required to authorize him to appear in court for his
client, but the presiding judge may, on motion of either party and on
reasonable grounds therefor being shown, require any attorney who
assumes the right to appear in a case to produce or prove the authority
under which he appears, and to disclose, whenever pertinent to any
issue, the name of the person who employed him, and may thereupon
make such order as justice requires. An attorneys wilfully appear in court
for a person without being employed, unless by leave of the court, may
be punished for contempt as an officer of the court who has misbehaved
in his official transactions.
b. Employment to a Law Firm
CANON 14 A LAWYER SHALL NOT REFUSE HIS SERVICES TO
THE NEEDY.
Rule 14.01 A lawyer shall not decline to represent a person solely
on account of the latters race, sex, creed or status of life, or
because of his own opinion regarding the guilt of said person.
ROC 138 Section 20. Duties of attorneys. It is the duty of an
attorney:
(a) To maintain allegiance to the Republic of the Philippines and to
support the Constitution and obey the laws of the Philippines.
(b) To observe and maintain the respect due to the courts of justice
and judicial officers;
(c) To counsel or maintain such actions or proceedings only as
appear to him to be just, and such defenses only as he believes to
be honestly debatable under the law.
(d) To employ, for the purpose of maintaining the causes confided
to him, such means only as are consistent with truth and honor,
and never seek to mislead the judge or any judicial officer by an
artifice or false statement of fact or law;
(e) To maintain inviolate the confidence, and at every peril to
himself, to preserve the secrets of his client, and to accept no
compensation in connection with his client's business except from
him or with his knowledge and approval;
(f) To abstain from all offensive personality and to advance no fact
prejudicial to the honor or reputation of a party or witness, unless
required by the justice of the cause with which he is charged;
Page 225
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
(g) Not to encourage either the commencement or the continuance
of an action or proceeding, or delay any man's cause, from any
corrupt motive or interest;
(h) Never to reject, for any consideration personal to himself, the
cause of the defenseless or oppressed;
(i) In the defense of a person accused of crime, by all fair and
honorable means, regardless of his personal opinion as to the guilt
of the accused, to present every defense that the law permits, to the
end that no person may be deprived of life or liberty, but by due
process of law.
A.C. No. 6155 March 14, 2006
MA. GINA L. FRANCISCO, JOSEPHINE S. TAN and CARLOS M.
JOAQUIN, Complainants,
vs.
ATTY. JAIME JUANITO P. PORTUGAL, Respondent.
DECISION
TINGA, J.:
Complainants filed before this Court an affidavit-complaint1 on 15 August
2003 against Atty. Jaime Juanito P. Portugal (respondent) for violation
of the 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
Sandiganbayan2 found the accused guilty of two counts of homicide and
one count of attempted homicide.
At that juncture, complainants engaged the services of herein
respondent for the accused. Respondent then filed a Motion for
Reconsideration with the Sandiganbayan but it was denied in a
Resolution dated 21 August 2001. Unfazed by the denial, respondent
filed an Urgent Motion for Leave to File Second Motion for
Reconsideration, with the attached Second Motion for
Reconsideration.3 Pending resolution by the Sandiganbayan,
respondent also filed with this Court a Petition for Review on Certiorari
(Ad Cautelam) on 3 May 2002.
Thereafter, complainants never heard from respondent again despite the
frequent telephone calls they made to his office. When respondent did
not return their phone inquiries, complainants went to 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 thead cautelam petition as
they had neither news from respondent about the case nor knowledge of
his whereabouts. They were shocked to discover that the Court had
already issued a Resolution4 dated 3 July 2002, denying the petition for
late filing and non-payment of docket fees.
Complainants also learned that the said Resolution had attained finality
and warrants of arrest5 had already been issued against the accused
because respondent, whose whereabouts remained unknown, did
nothing to prevent the reglementary period for seeking reconsideration
from lapsing.
In his Comment,6 respondent states that it is of vital significance that the
Court notes that he was not the original counsel of the accused. He only
PINEDAPCGRNMAN
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 Joaquin (PO3 Joaquin), who
served as the contact person between respondent and complainants,
explaining his decision to withdraw as their counsel, and attaching the
Notice to Withdraw which respondent instructed the accused to sign and
file with the Court. He sent the letter through registered mail but
unfortunately, he could not locate the registry receipt issued for the letter.
Respondent states that he has asked the accused that he be discharged
from the case and endorsed the Notice of Withdrawal to PO3 Joaquin for
the latter to file with the Court. Unfortunately, PO3 Joaquin did not do so,
as he was keenly aware that it would be difficult to find a new counsel
who would be as equally accommodating as respondent. Respondent
suggests this might have been the reason for the several calls
complainants made to his office.
On 9 February 2004, the Court resolved to refer the matter to the
Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.1awph!l.net
The case was assigned to Investigating Commissioner Leland R.
Villadolid, Jr. (Commissioner Villadolid) who sent notices of hearing to
the parties but of the three complainants, only complainant Carlos
Joaquin appeared. Thus, in the mandatory conference held, the other
two complainants were declared as having waived their rights to further
participate in the IBP proceedings.8
The parties were directed to file their respective position papers and on
27 May 2005, Commissioner Villadolid submitted his Report and
Recommendation finding respondent guilty of violation of the Code of
Professional Responsibility9 and recommended the imposition of penalty
ranging from reprimand to suspension of six (6) months.1awph!l.net10 On
12 November 2005, the Board of Directors of the IBP resolved to adopt
and approve Commissioner 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.
Page 226
After careful consideration of the records of the case, the Court finds the
suspension recommended by the IBP proper.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
In a criminal case like that handled by respondent in behalf of the
accused, respondent has a higher duty to be circumspect in defending
the accused for it is not only the property of the accused which stands to
be lost but more importantly, their right to their life and liberty. As held in
Regala v. Sandiganbayan:11
Thus, in the creation of lawyer-client relationship, there are rules, ethical
conduct and duties that breathe life into it, among those, the fiduciary
duty to his client which is of very delicate, exacting and confidential
character, requiring a very high degree of fidelity and good faith, that is
required by reason of necessity and public interest x x x .
It is also the strict sense of fidelity of a lawyer to his client that
distinguishes him from any other profession in society. x x x12
At the onset, the Court takes notice that the ad cautelam petition was
actually filed out of time. Though respondent filed with the
Sandiganbayan an Urgent Motion for Leave to File Second Motion for
Reconsideration with the attached Second Motion for Reconsideration,
he should have known that a second motion for reconsideration is a
prohibited pleading13 and it rests on the sound discretion of the
Sandiganbayan to admit it or not. Thus, in effect, the motion did not toll
the reglementary period to appeal. Having failed to do so, the accused
had already lost their right to appeal long before respondent filed his
motion for extension. Therefore, respondent cannot now say he filed
the ad cautelam petition on time. Also important to note is the allegation
of 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
pleadings14 he filed, it can be gleaned that all of the pleadings have the
same mailing address as that known to complainants. Presumably, at
some point, 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,
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
PINEDAPCGRNMAN
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 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 7186509273.19 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 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
Page 227
Jose M. Chua and [a]ttempted [h]omicide of Mario C. Macato."23 Rule
14.0124 of the Code of Professional Responsibility clearly directs lawyers
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
not to discriminate clients as to their belief of the guilt of the latter. It is
ironic that it is the defense counsel that actually branded his own clients
as being the culprits that "salvaged" the victims. Though he might think
of his clients as that, still it is unprofessional to be labeling an event as
such when even the Sandiganbayan had not done so.
The IBP Board of Governors recommended the suspension of
respondent for six (6) months, the most severe penalty recommended
by Commissioner Villadolid, but did not explain why such penalty was
justified. In a fairly recent case where the lawyer failed to file an appeal
brief which resulted to the dismissal of the appeal of his client in the Court
of Appeals, the Court imposed upon the erring lawyer the penalty of three
(3) months suspension.25The Court finds it fit to impose the same in the
case at bar.
WHEREFORE, premises considered, respondent is hereby
SUSPENDED from the practice of law for three (3) months. Let a copy
of the Resolution be furnished the Bar Confidant for appropriate
annotation in the record of respondent.
SO ORDERED.
Rule 14.02 A lawyer shall not decline, except for serious and
sufficient cause, an appointment as counsel de oficio or as amicus
curae or a request from the Integrated Bar of the Philippines or any
of its chapters for rendition of free legal aid.
ROC RULE 138 Section 30. Attorney to be heard before removal or
suspension. No attorney shall be removed or suspended from
the practice of his profession, until he has had full opportunity upon
reasonable notice to answer the charges against him, to produce
witnesses in his own behalf, and to be heard by himself or counsel.
But if upon reasonable notice he fails to appear and answer the
accusation, the court may proceed to determine the matter ex parte.
Section 20 (h) Never to reject, for any consideration personal to
himself, the cause of the defenseless or oppressed;
ROC RULE 116 Section 6. Duty of court to inform accused of his
right to counsel. Before arraignment, the court shall inform the
accused of his right to counsel and ask him if he desires to have
one. Unless the accused is allowed to defend himself in person or
has employed a counsel of his choice, the court must assign a
counsel de oficio to defend him. (6a)
Section 7. Appointment of counsel de oficio. The court,
considering the gravity of the offense and the difficulty of the
questions that may arise, shall appoint as counsel de oficio only
such members of the bar in good standing who, by reason of their
experience and ability, can competently defend the accused. But in
localities where such members of the bar are not available, the
court may appoint any person, resident of the province and of good
repute for probity and ability, to defend the accused. (7a)
Section 8. Time for counsel de oficio to prepare for arraignment.
Whenever a counsel de oficio is appointed by the court to defend
the accused at the arraignment, he shall be given a reasonable time
to consult with the accused as to his plea before proceeding with
the arraignment. (8)
ROC RULE 124 Section 2. Appointment of counsel de oficio for the
accused. If it appears from the record of the case as transmitted
that (a) the accused is confined in prison, (b) is without counsel de
parte on appeal, or (c) has signed the notice of appeal himself, the
clerk of court of the Court of Appeals shall designate a counsel de
oficio.
An appellant who is not confined in prison may, upon request, be
assigned a counsel de oficio within ten (10) days from receipt of the
notice to file brief and he establishes his right thereto. (2a)
PINEDAPCGRNMAN
PRESIDENTIAL DECREE No. 543 August 21, 1974
AUTHORIZING THE DESIGNATION OF MUNICIPAL JUDGES AND
LAWYERS IN ANY BRANCH OF THE GOVERNMENT SERVICE TO
ACT AS COUNSEL DE OFICIO FOR THE ACCUSED WHO ARE
INDIGENT IN PLACES WHERE THERE ARE NO AVAILABLE
PRACTICING ATTORNEYS
WHEREAS, under existing law, Municipal Judges and other lawyers
in the government service are prohibited from practicing law;
WHEREAS, there are some places where there are no available
legal practitioners, as a result of which the trial of cases in court is
delayed to the prejudice particularly of detention prisoners;
WHEREAS, for the protection of the rights of the accused who
cannot afford to hire lawyers from other places and to prevent
miscarriage of justice, it is necessary that they be provided with
counsel;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the
Constitution as commander-in-Chief of the Armed Forces of the
Philippines, and pursuant to Proclamation No. 1081, dated
September 21, 1972, and General Order No. 1, dated September 22,
1972, as amended, do hereby order and decree as follows:
Section 1. Designation of Municipal Judges and lawyers in any
branch of the government service, as counsel de oficio. In places
where there are no available practicing lawyers, the District Judge
or Circuit Criminal Court Judge shall designate a municipal judge
or a lawyer employed in any branch, subdivision or instrumentality
of the government within the province, as counsel de oficio for an
indigent person who is facing a criminal charge before his court,
and the services of such counsel de oficio shall be duly
compensated by the Government in accordance with Section thirty-
two, Rule One Hundred Thirty Eight of the Rules of Court.
If the criminal case wherein the services of a counsel de oficio are
needed is pending before a City or municipal court, the city or
municipal judge concerned shall immediately recommend to the
nearest District Judge the appointment of a counsel de oficio, and
the District Judge shall forthwith appoint one in accordance with
the preceding paragraph.
For purposes of this Decree an indigent person is anyone who has
no visible means of support or whose income does not exceed P300
per month or whose income even in excess of P300 is insufficient
for the subsistence of his family, which fact shall be determined by
the Judge in whose court the case is pending, taking into account
the number of the members of his family dependent upon him for
subsistence.
Section 2. Repealing Clause. All laws and decrees inconsistent with
this Decree are hereby repealed.
Section 3. Effectivity. This Decree shall take effect immediately.
DONE in the City of Manila, this 21st day of August, in the year of
Our Lord, nineteen hundred and seventy-four.
G.R. No. L-26868 February 27, 1969
IN THE MATTER OF ATTORNEY LOPE E. ADRIANO Member of the
Philippine Bar. PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
REMIGIO ESTEBIA, accused-appellant.
SANCHEZ, J.:
Once again, this Court is confronted with the unwanted task of
ascertaining whether certain acts and conduct of a member of the Bar
deserve disciplinary action.
The problem arose because of facts that follow:
One Remigio Estebia was convicted of rape by the Court of First Instance
of Samar, 1 and sentenced to suffer the capital punishment. His case
came up before this Court on review.
On December 14, 1966, Lope E. Adriano, a member of the Bar, was
Page 228
appointed by this Court as Estebia's counselde oficio. In the notice of his
appointment, Adriano was required to prepare and file his brief within
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LEGAL ETHICS
thirty days from notice. He was advised that to enable him to examine
the case, the record would be at his disposal. Adriano received this
notice on December 20, 1966. On January 19, 1967, Adriano sought for
a 30-day extension to file appellant's brief in mimeographed form. On
February 18, Adriano again moved for a 20-day extension (his second).
This was followed by a third filed on March 8, for fifteen days. And a
fourth on March 27, also for fifteen days. He moved for a "last" extension
of ten days on April 11. On April 21, he even sought a special extension
of five days. All these motions for extension were granted. The brief was
due on April 26, 1967. But no brief was filed.
On September 25, 1967, Adriano was ordered to show cause within ten
days from notice thereof why disciplinary action should not be taken
against him for failure to file appellant's brief despite the lapse of the time
therefor. Adriano did not bother to give any explanation.
For failing to comply with the September 25, 1967 resolution, this Court,
on October 3, 1968, resolved to impose upon him a fine of P500 payable
to this Court within fifteen days from notice with a warning that upon
further non-compliance with the said resolution of September 25, 1967
within the same period of fifteen days, "more drastic disciplinary action
will be taken against him." Still, counsel paid no heed.
Finally, on December 5, 1968, this Court ordered Adriano to show cause
within ten days from notice thereof why he should not be suspended from
the practice of law "for gross misconduct and violation of his oath of office
as attorney." By express order of this Court, the resolution was
personally served upon him on December 18, 1968. He ignored the
resolution.
Upon the facts just narrated, we now pass judgment.
1. By specific authority, this Court may assign an attorney to render
professional aid to a destitute appellant in a criminal case who is unable
to employ an attorney. Correspondingly, a duty is imposed upon the
lawyer so assigned "to render the required service." 2 A lawyer so
appointed "as counsel for an indigent prisoner", our Canons of
Professional Ethics demand, "should always exert his best efforts" in the
indigent's behalf. 3
No excuse at all has been offered for non-presentation of appellant's
brief. And yet, between December 20, 1966, when he received notice of
his appointment, and December 5, 1968, when the last show cause order
was issued by this Court, more than sufficient time was afforded counsel
to prepare and file his brief de oficio. The death sentence below imposed
was upon a plea of guilty. The record of the proceedings leading to the
lower court's sentence consists of but 31 pages. Counsel had the record
since January 19, 1967. In fact, in his third motion for extension of time,
he manifested that the drafting of apellant's brief "is more than half-way
through" and that "additional time is needed to review, effectuate the
necessary corrections, put in final form and print the said brief." In his
motion for fourth extension, he intimated that the preparation of the brief
"is almost through" and that "additional time is needed to redraft and
rehash some significant portions of said brief and have the same
stencilled and mimeographed upon completion of a definitive text." His
motion for last (fifth) extension of time came with the excuse that he
"suddenly got sick (influenza) in the course of redrafting and rehashing
some significant portions of said brief, which ailment hampered and
interrupted his work thereon for sometime." Finally, in his "Special
Extension of Time" to file brief, he claimed that he needed only five days
from April 21, 1967 to put said brief in final form and have the same
stencilled and mimeographed.lawphi1.nt
In the face of the fact that no brief has ever been filed, counsel's
statements in his motions for extension have gone down to the level of
empty and meaningless words; at best, have dubious claim to veracity.
It is true that he is a court-appointed counsel. But we do say that as such
counsel de oficio, he has as high a duty to the accused as one employed
and paid by defendant himself. Because, as in the case of the latter, he
must exercise his best efforts and professional ability in behalf of the
person assigned to his care. His is to render effective assistance. The
accused defendant expects of him due diligence, not mere perfunctory
representation. We do not accept the paradox that responsibility is less
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where the defended party is poor. It has been said that courts should
"have no hesitancy in demanding high standards of duty of attorneys
appointed to defend indigent persons charged with crime." 4 For, indeed,
a lawyer who is a vanguard in the bastion of justice is expected to have
a bigger dose of social conscience and a little less of self interest.
Because of this, a lawyer should remain ever conscious of his duties to
the indigent he defends.
Worth remembering is the 1905 case of In the matter of Jose Robles
Lahesa. 5 He was counsel de oficio before the Supreme Court in two
cases: one for robo en cuadrilla and the other for homicide. He failed to
take any action in behalf of the defendants in both eases. This Court
imposed upon him a fine of P200. Significant is the pronouncement we
there made that: "This court should exact from its officers and
subordinates the most scrupulous performance of their official duties,
especially when negligence in the performance of those duties
necessarily result in delays in the prosecution of criminal cases and the
detention of accused persons pending appeal." The validity of the
foregoing observation remains to the present day. 6 It applies to the
present case.
Here, appellant was without brief since December 20, 1966. The effect
of this long delay need not be essayed. We, therefore, find that Attorney
Lope E. Adriano has violated his oath that he will conduct himself as a
lawyer according to the best of his "knowledge and discretion".
2. An attorney's duty of prime importance is "[t]o observe and maintain
the respect due to the courts of justice and judicial officers. The first
Canon of the Code of Ethics enjoins a lawyer "to maintain towards the
Courts a respectful attitude, not for the sake of the temporary incumbent
of the judicial office, but for the maintenance of its supreme importance."
By the oath of office, the lawyer undertook to "obey the laws as well as
the legal orders of the duly constituted authorities." In People vs.
Carillo, 8 this Court's pointed observation was that as an officer of the
court, it is a lawyer's "sworn and moral duty to help build and not destroy
unnecessarily that high esteem and regard towards the courts so
essential to the proper administration of justice."
Here, we have a clear case of an attorney whose acts exhibit willful dis-
obedience of lawful orders of this Court. A cause sufficient is thus present
for suspension or disbarment. 9 Counsel has received no less than three
resolutions of this Court requiring compliance of its orders. To be recalled
is that on September 25, 1967, this Court directed him, in ten days from
notice, to show cause why disciplinary action should not be taken against
him for his failure to file appellant's brief despite the lapse of the time
therefor. Nothing was done by counsel for over a year. To impress upon
counsel the gravity of his repeated failure to obey this Court's orders, on
October 3,1968, a fine of P500 was clamped upon him. He was directed
to pay that fine in ten days. He was in that order also required to file his
brief in fifteen days. He was warned that more drastic disciplinary action
would be taken upon his failure to do either. Still he remained unmoved.
Then, this Court issued the peremptory order of December 5, 1968
commanding him to show cause within ten days from notice thereof why
he should not be suspended from the practice of law for gross
misconduct and violation of his oath of office. The Court made it certain
that this order would reach him. He personally acknowledged receipt
thereof. He has not paid the fine. He has done nothing.
This is 1969. No brief has as yet been filed. And this, inspite of the fact
that as early as March 27, 1967, when he moved for a fourth extension
of time to file his brief de oficio, he represented to this Court that all that
was needed was to redraft and to rehash some significant portions of the
brief which was almost through and to have the same stencilled and
mimeographed upon completion of a definitive text.
Disrespect is here present. Contumacy is as patent. Disciplinary action
is in order.
Controlling here is the 1961 decision In the Matter of Atty. Filoteo Dianala
Jo. 10 There, as here, counsel failed to file appellant's brief (in a criminal
case) despite extensions of time granted him by this Court. Likewise, this
Page 229
Court issued a show-cause order why disciplinary action should not be
taken against him. The explanation was considered unsatisfactory. This
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LEGAL ETHICS
Court imposed a fine of P50 payable in ten days from notice. Attorney
Dianala Jo did not pay that fine. Came the subsequent resolution of this
Court advising him to pay the fine, otherwise, he would be arrested and
confined to jam. This warning was not heeded. On November 18, 1960,
the Court resolved to give him ten days from notice within which to
explain why he should not be suspended from the practice of law.
Despite receipt of this notice, he did not care to explain his behaviour
which this Court considered as "consumacy and unwillingness to comply
with the lawful orders of this Court of which he is an officer or to conduct
himself as a lawyer should, in violation of his oath of office." He was
suspended from the practice of law for three months.
In the present case, counsel's pattern of conduct, it would seem to us,
reveals a propensity on the part of counsel to benumb appreciation of his
obligation as counsel de oficio and of the courtesy and respect that
should be accorded this Court.
For the reasons given, we vote to suspend Attorney Lope E. Adriano
from the practice of law throughout the Philippines for a period of one (1)
year.
Let a copy of this resolution be attached to the personal record, in this
Court, of Lope E. Adriano as member of the Bar. So ordered.
*A LAWYER SHALL NOT DECLINE APPOINTMENT BY THE COURT
OF THE IBP
Rule 14.03 A lawyer may refuse to accept representation of a
client if:
1. a. He is not in position to carry out the work effectively
and competently.
2. b. He labors under conflict of interest between him and
the prospective client or between a present client and the
prospective client.
A.C. No. 6160 March 30, 2006
NESTOR PEREZ , Complainant,
vs.
ATTY. DANILO DE LA TORRE, Respondent.
DECISION
YNARES-SANTIAGO, J.:
In a letter-complaint1 dated July 30, 2003 addressed to then Chief
Justice Hilario G. Davide, Jr., complainant Nestor Perez charged
respondent Atty. Danilo de la Torre with misconduct or conduct
unbecoming of a lawyer for representing conflicting interests.
Perez alleged that he is the barangay captain of Binanuaanan,
Calabanga, Camarines Sur; that in December 2001, several suspects for
murder and kidnapping for ransom, among them Sonny Boy Ilo and
Diego Avila, were apprehended and jailed by the police authorities; that
respondent went to the municipal building of Calabanga where Ilo and
Avila were being detained and made representations that he could
secure their freedom if they sign the prepared extrajudicial confessions;
that unknown to the two accused, respondent was representing the heirs
of the murder victim; that on the strength of the extrajudicial confessions,
cases were filed against them, including herein complainant who was
implicated in the extrajudicial confessions as the mastermind in the
criminal activities for which they were being charged.
Respondent denied the accusations against him. He explained that while
being detained at the Calabanga Municipal Police Jail, Avila sought his
assistance in drafting an extrajudicial confession regarding his
involvement in the crimes of kidnapping for ransom, murder and robbery.
He advised Avila to inform his parents about his decision to make an
extrajudicial confession, apprised him of his constitutional rights and of
the possibility that he might be utilized as a state-witness.
Respondent claimed that when Ilo sought his assistance in executing his
extrajudicial confession, he conferred with Ilo in the presence of his
parents; and only after he was convinced that Ilo was not under undue
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compulsion did he assist the accused in executing the extrajudicial
confession.
The complaint was referred to the Integrated Bar of the Philippines (IBP)
for investigation, report and recommendation.2 On August 16, 2005, the
Investigating Commissioner submitted his report with the following
recommendation:
WHEREFORE, it is respectfully recommended that Atty. Danilo de la
Torre be suspended for one (1) year from the practice of the legal
profession for violation of Rule 15.03 of the Code of Professional
Responsibility.
RESPECTFULLY SUBMITTED.
The Board of Governors of the IBP modified the recommendation by
increasing the period of suspension to two years.
In finding the respondent guilty of representing conflicting interests, the
Investigating Commissioner opined that:
In administrative proceedings, the complainant has the burden of
proving, by substantial evidence, the allegations in his complaint. The
complainant was able to prove by substantial evidence his charge
against Atty. de la Tor[r]e. The respondent admitted that his services as
a lawyer were retained by both Avila and Ilo. Perez was able to show
that at the time that Atty. de la Torre was representing the said two
accused, he was also representing the interest of the victims family. This
was declared by the victims daughter, Vicky de Chavez, who testified
before Branch 63 of the Regional Trial Court of Camarines Sur that her
family retained the services of Atty. Danilo de la Torre to prosecute the
case against her fathers killers. She even admitted that she was present
when Atty. de la Torre met with and advised Avila and Ilo on one
occasion. This is proof that the respondent consciously offered his
services to Avila and Ilo despite the fact that he was already representing
the family of the two accuseds victim. It may not even be improbable
that respondent purposely offered to help the accused in order to further
his other clients interest. The respondent failed to deny these facts or
offer competent evidence to refute the said facts despite the ample
opportunity given him.
Under Rule 15.03 of the Code of Professional Responsibility, a lawyer
shall not represent conflicting interests except by written consent of all
concerned given after a full disclosure of the facts. Respondent is
therefore duty bound to refrain from representing two parties having
conflicting interests in a controversy. By doing precisely the foregoing,
and without any proof that he secured the written consent of both parties
after explaining to them the existing conflict of interest, respondent
should be sanctioned.
We agree with the findings of the IBP except for the recommended
penalty.
There is conflict of interests when a lawyer represents inconsistent
interests of two or more opposing parties. The test is "whether or not in
behalf of one client, it is the lawyers duty to fight for an issue or claim,
but it is his duty to oppose it for the other client. In brief, if he argues for
one client, this argument will be opposed by him when he argues for the
other client." This rule covers not only cases in which confidential
communications have been confided, but also those in which no
confidence has been bestowed or will be used.3
There is a representation of conflicting interests if the acceptance of the
new retainer will require the attorney to do anything which will injuriously
affect his first client in any matter in which he represents him and also
whether he will be called upon in his new relation, to use against his first
client any knowledge acquired through their connection.4
The prohibition against representing conflicting interest is founded on
principles of public policy and good taste. In the course of a lawyer-client
relationship, the lawyer learns all the facts connected with the clients
case, including the weak and strong points of the case. The nature of
that relationship is, therefore, one of trust and confidence of the highest
degree. It behooves lawyers not only to keep inviolate the clients
confidence, but also to avoid the appearance of impropriety and double-
Page 230
dealing for only then can litigants be encouraged to entrust their secrets
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
to their lawyers, which is of paramount importance in the administration
of justice.5
To negate any culpability, respondent explained that he did not offer his
legal services to accused Avila and Ilo but it was the two accused who
sought his assistance in executing their extrajudicial confessions.
Nonetheless, he acceded to their request to act as counsel after
apprising them of their constitutional rights and after being convinced
that the accused were under no compulsion to give their confession.
The excuse proferred by the respondent does not exonerate him from
the clear violation of Rule 15.03 of the Code of Professional
Responsibility which prohibits a lawyer from representing conflicting
interests except by written consent of all concerned given after a full
disclosure of the facts.
As found by the IBP, at the time respondent was representing Avila and
Ilo, two of the accused in the murder of the victim Resurreccion Barrios,
he was representing the family of the murder victim. Clearly, his
representation of opposing clients in the murder case invites suspicion
of double-dealing and infidelity to his clients.
What is unsettling is that respondent assisted in the execution by the two
accused of their confessions whereby they admitted their participation in
various serious criminal offenses knowing fully well that he was retained
previously by the heirs of one of the victims. Respondent, who
presumably knows the intricacies of the law, should have exercised his
better judgment before conceding to accuseds choice of counsel. It did
not cross his mind to inhibit himself from acting as their counsel and
instead, he even assisted them in executing the extrajudicial confession.
Considering that this is respondents first infraction, disbarment as
sought by the complaint is deemed to be too severe. Under the present
circumstances, we find that a suspension from the practice of law for
three years is warranted.
WHEREFORE, Atty. Danilo de la Torre is found GUILTY of violation of
Rule 15.03 of the Code of Professional Responsibility for representing
conflicting interests. He is SUSPENDED for THREE YEARS from the
practice of law, effective upon his receipt of this Decision. He is
WARNED that a repetition of the same or similar acts will be dealt with
more severely.
Let copies of this Decision be entered in the record of respondent and
served on the IBP, as well as on the Court Administrator who shall
circulate it to all courts for their information and guidance.
SO ORDERED.
[A. C. No. 5485. March 16, 2005]
ELMER CANOY, complainant, vs. ATTY. JOSE MAX
ORTIZ, respondent.
DECISION
TINGA, J.:
There are no good reasons that would justify a lawyer virtually
abandoning the cause of the client in the midst of litigation without even
informing the client of the fact or cause of desertion. That the lawyer
forsook his legal practice on account of what might be perceived as a
higher calling, election to public office, does not mitigate the dereliction
of professional duty. Suspension from the practice is the usual penalty,
and there is no reason to deviate from the norm in this case.
A Complaint[1] dated 10 April 2001 was filed with the Office of the Bar
Confidant by Elmer Canoy (Canoy) accusing Atty. Jose Max Ortiz (Atty.
Ortiz) of misconduct and malpractice. It was alleged that Canoy filed a
complaint for illegal dismissal against his former employer, Coca Cola
Bottlers Philippines. The complaint was filed with the National Labor
Relations Commission (NLRC) Regional Arbitration Board VI in Bacolod
City.[2] Atty. Ortiz appeared as counsel for Canoy in this proceeding. In
1998, the labor arbiter hearing the complaint ordered the parties to
submit their respective position papers. Canoy submitted all the
necessary documents and records to Atty. Ortiz for the preparation of
the position paper. Thereafter, he made several unfruitful visits to the
office of Atty. Ortiz to follow-up the progress of the case. After a final visit
at the office of Atty. Ortiz in April of 2000, during which Canoy was told
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to come back as his lawyer was not present, Canoy decided to follow-up
the case himself with the NLRC. He was shocked to learn that his
complaint was actually dismissed way back in 1998, for failure to
prosecute, the parties not having submitted their position papers.[3] The
dismissal was without prejudice. Canoy alleged that Atty. Ortiz had never
communicated to him about the status of the case, much less the fact
that he failed to submit the position paper.
The Comment[4] filed by Atty. Ortiz is the epitome of self-hagiography.
He informs the Court that since commencing his law practice in 1987, he
has mostly catered to indigent and low-income clients, at considerable
financial sacrifice to himself. Atty. Ortiz claims that for more than ten
years, his law office was a virtual adjunct of the Public Attorneys Office
with its steady stream of non-paying clients in the hundreds or
thousands.[5] At the same time, he hosted a legal assistance show on the
radio, catering to far-flung municipalities and reaching the people who
need legal advice and assistance.[6] Atty. Ortiz pursued on with this
lifestyle until his election as Councilor of Bacolod City, a victory which he
generously attributes to the help of the same people whom he had
helped by way of legal assistance before.[7]
Canoy was among those low-income clients whom Atty. Ortiz deigned to
represent. The lawyer was apparently confident that the illegal dismissal
case would eventually be resolved by way of compromise. He claims
having prepared the position paper of Canoy, but before he could submit
the same, the Labor Arbiter had already issued the order dismissing the
case.[8]Atty. Ortiz admits though that the period within which to file the
position paper had already lapsed. He attributes this failure to timely file
the position paper to the fact that after his election as Councilor of
Bacolod City, he was frankly preoccupied with both his functions as a
local government official and as a practicing lawyer. Eventually, his
desire to help was beyond physical limitations, and he withdrew from his
other cases and his free legal services.[9]
According to Atty. Ortiz, Mr. Canoy should have at least understood that
during all that time, he was free to visit or call the office and be
entertained by the secretary as [he] would normally report to the office in
the afternoon as he had to attend to court trials and report to the
Sanggunian office.[10] He states that it was his policy to inform clients that
they should be the ones to follow-up their cases with his office, as it
would be too difficult and a financial burden to attend making follow-ups
with hundreds of clients, mostly indigents with only two office
personnel.[11]
Nonetheless, Atty. Ortiz notes that the dismissal of Canoys complaint
was without prejudice, thus the prescriptive period had been tolled. He
claims not being able to remember whether he immediately informed
Canoy of the dismissal of the case, though as far as he could recall,
Canoy had conveyed a message to him that he had a lawyer to handle
the case, thus his office did not insist on refiling the same.[12]
The matter was referred to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.[13] Canoy eventually
submitted a motion withdrawing the complaint, but this was not favorably
acted upon by the IBP in view of the rule that the investigation of a case
shall not be interrupted or terminated by reason of withdrawal of the
charges.[14]Eventually, the investigating commissioner concluded that
clearly, the records show that [Atty. Ortiz] failed to exercise that degree
of competence and diligence required of him in prosecuting his clients
(sic) claim, and recommended that Atty. Ortiz be reprimanded.[15] The
IBP Commission on Discipline adopted the recommendation, with the
slight modification that Atty. Ortiz be likewise warned that a repetition of
the same negligence shall be dealt with more severely in the future.
The Court is sensitive to the difficulties in obtaining legal representation
for indigent or low-income litigants. Apart from the heroic efforts of
government entities such as the Public Attorneys Office, groups such as
the IBP National Committee on Legal Aid and the Office of Legal Aid of
the UP College of Law have likewise been at the forefront in the quest to
provide legal representation for those who could not otherwise afford the
Page 231
services of lawyers. The efforts of private practitioners who assist in this
goal are especially commendable, owing to their sacrifice in time and
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LEGAL ETHICS
resources beyond the call of duty and without expectation of pecuniary
reward.
Yet, the problem of under-representation of indigent or low-income
clients is just as grievous as that of non-representation. Admirable as the
apparent focus of Atty. Ortizs legal practice may have been, his particular
representation of Canoy in the latters illegal dismissal case leaves much
to be desired.
Several of the canons and rules in the Code of Professional
Responsibility guard against the sort of conduct displayed by Atty. Ortiz
with respect to the handling of Canoys case.
CANON 17A LAWYER OWES FIDELITY TO THE CAUSE OF HIS
CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND
CONFIDENCE REPOSED IN HIM.
CANON 18A LAWYER SHALL SERVE HIS CLIENT WITH
COMPETENCE AND DILIGENCE.
...
Rule 18.03A lawyer shall not neglect a legal matter entrusted to him, and
his negligence in connection therewith shall render him liable.
Rule 18.04A lawyer shall keep the client informed of the status of his
case and shall respond within a reasonable time to the clients request
for information.
...
CANON 22A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR
GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE
CIRCUMSTANCES.
...
Rule 22.02 A lawyer who withdraws or is discharged shall, subject to a
retainer lien, immediately turn over all papers and property to which the
client is entitled, and shall cooperate with his successor in the orderly
transfer of the matter, including all information necessary for the proper
handling of the matter.
Atty. Ortiz should have filed the position paper on time, owing to his duty
as counsel of Canoy to attend to this legal matter entrusted to him. His
failure to do so constitutes a violation of Rule 18.03 of the Code of
Professional Responsibility.
Once he agrees to take up the cause of a client, a lawyer owes fidelity to
such cause and must always be mindful of the trust and confidence
reposed in him. He must serve the client with competence and diligence
and champion the latter's cause with wholehearted fidelity, care and
devotion. Elsewise stated, he owes entire devotion to the interest of the
client, warm zeal in the maintenance and defense of his client's rights,
and the exertion of his utmost learning and ability to the end that nothing
be taken or withheld from his client, save by the rules of law, legally
applied. This simply means that his client is entitled to the benefit of any
and every remedy and defense that is authorized by the law of the land
and he may expect his lawyer to assert every such remedy or defense.
If much is demanded from an attorney, it is because the entrusted
privilege to practice law carries with it the correlative duties not only to
the client but also to the court, to the bar and to the public. A lawyer who
performs his duty with diligence and candor not only protects the interest
of his client; he also serves the ends of justice, does honor to the bar and
helps maintain the respect of the community to the legal profession.[16]
If indeed Atty. Ortizs schedule, workload, or physical condition was such
that he would not be able to make a timely filing, he should have informed
Canoy of such fact. The relationship of lawyer-client being one of
confidence, there is ever present the need for the client to be adequately
and fully informed of the developments of the case and should not be left
in the dark as to the mode and manner in which his/her interests are
being defended.[17]
There could have been remedies undertaken to this inability of Atty. Ortiz
to file on time the position paper had Canoy been told of such fact, such
as a request for more time to file the position paper, or maybe even the
hiring of collaborating counsel or substitution of Atty. Ortiz as counsel.
Since Atty. Ortiz did not exercise the necessary degree of care by either
filing the position paper on time or informing Canoy that the paper could
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not be submitted seasonably, the ignominy of having the complaint
dismissed for failure to prosecute could not be avoided.
That the case was dismissed without prejudice, thus allowing Canoy to
refile the case, hardly serves to mitigate the liability of Atty. Ortiz, as the
failure to file the position paper is per sea violation of Rule 18.03.[18]
Neither is the Court mollified by the circumstance of Atty. Ortizs election
as a City Councilor of Bacolod City, as his adoption of these additional
duties does not exonerate him of his negligent behavior. The Code of
Professional Responsibility does allow a lawyer to withdraw his legal
services if the lawyer is elected or appointed to a public office.[19] Statutes
expressly prohibit the occupant of particular public offices from engaging
in the practice of law, such as governors and mayors, [20] and in such
instance, the attorney-client relationship is terminated.[21] However, city
councilors are allowed to practice their profession or engage in any
occupation except during session hours, and in the case of lawyers such
as Atty. Ortiz, subject to certain prohibitions which are not relevant to this
case.[22] In such case, the lawyer nevertheless has the choice to
withdraw his/her services.[23] Still, the severance of the relation of
attorney-client is not effective until a notice of discharge by the client or
a manifestation clearly indicating that purpose is filed with the court or
tribunal, and a copy thereof served upon the adverse party, and until
then, the lawyer continues to be counsel in the case.[24]
Assuming that Atty. Ortiz was justified in terminating his services, he,
however, cannot just do so and leave complainant in the cold
unprotected.[25] Indeed, Rule 22.02 requires that a lawyer who withdraws
or is discharged shall, subject to a lien, immediately turn over all papers
and property to which the client is entitled, and shall cooperate with his
successor in the orderly transfer of the matter. Atty. Ortiz claims that the
reason why he took no further action on the case was that he was
informed that Canoy had acquired the services of another counsel.
Assuming that were true, there was no apparent coordination between
Atty. Ortiz and this new counsel.
In fact, it took nearly two years before Canoy had learned that the
position paper had not been filed and that the case had been dismissed.
This was highly irresponsible of Atty. Ortiz, much more so considering
that Canoy was one of the indigent clients whom Atty. Ortiz proudly
claims as his favored clientele. It does not escape the Courts attention
that Atty. Ortiz faults Canoy for not adequately following up the case with
his office.[26] He cannot now shift the blame to complainant for failing to
inquire about the status of the case, since, as stated above, it was his
duty as lawyer to inform his clients of the status of cases entrusted to
him.[27]
The appropriate sanction is within the sound discretion of this Court. In
cases of similar nature, the penalty imposed by the Court consisted of
either a reprimand, a fine of five hundred pesos with warning, suspension
of three months, six months, and even disbarment in aggravated
cases.[28] Given the circumstances, the Court finds the penalty
recommended by the IBP too lenient and instead suspends Atty. Ortiz
from the practice of law for one (1) month. The graver penalty of
suspension is warranted in lieu of an admonition or a reprimand
considering that Atty. Ortizs undisputed negligence in failing to timely file
the position paper was compounded by his failure to inform Canoy of
such fact, and the successive dismissal of the complaint.
Lawyers who devote their professional practice in representing litigants
who could ill afford legal services deserve commendation. However, this
mantle of public service will not deliver the lawyer, no matter how well-
meaning, from the consequences of negligent acts. It is not enough to
say that all pauper litigants should be assured of legal representation.
They deserve quality representation as well.
WHEREFORE, respondent Atty. Jose Max S. Ortiz is ordered
SUSPENDED from the practice of law for one (1) month from notice, with
the warning that a repetition of the same negligence will be dealt with
more severely. Let a copy of this decision be attached to respondent's
personal record in the Office of the Bar Confidant and copies be
Page 232
furnished to all chapters of the Integrated Bar of the Philippines and to
all the courts in the land.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
SO ORDERED.
Rule 14.04 A lawyer who accepts the cause of a person unable to
pay his professional fees shall observe the same standard of
conduct governing his relations with paying clients.
Duties to Client:
1. owe utmost learning and ability
2. maintain inviolate the confidence of the client
3. disclose all circumstances/interest regarding the
controversy
4. undivided loyalty
5. not reject cause of defenseless and oppressed
6. candor, fairness and loyalty
7. hold in trust money or property
8. respond with zeal to the cause of the client
Appointment of Amicus Curae
1. by application to the judge
2. the judge on his own initiative may invite the lawyer
3. no right to interfere with or control the condition of the
record, no control over the suit
Cannot refuse on the ground of insufficient of compensation
or lack of it
IN RE ATTY ADRIANO (supra)
CANON 15 A LAWYER SHALL OBSERVE CANDOR, FAIRNESS
AND LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH
HIS CLIENT.
ROC RULE 138 Section 3. Requirements for lawyers who are
citizens of the United States of America. Citizens of the United
States of America who, before July 4, 1946, were duly licensed
members of the Philippine Bar, in active practice in the courts of
the Philippines and in good and regular standing as such may,
upon satisfactory proof of those facts before the Supreme Court,
be allowed to continue such practice after taking the following oath
of office:
I . . . . . . . . . . . . . . . . . . . . . . . . . . ., having been permitted to continue
in the practice of law in the Philippines, do solemnly swear that I
recognize the supreme authority of the Republic of the Philippines;
I will support its Constitution and obey the laws as well as the legal
orders of the duly constituted authorities therein; I will do no
falsehood, nor consent to the doing of any in court; I will not
wittingly or willingly promote or sue any groundless, false or
unlawful suit, nor give aid nor consent to the same; I will delay no
man for money or malice, and will conduct myself as a lawyer
according to the best of may knowledge and discretion with all
good fidelity as well as to the courts as to my clients; and I impose
upon myself this voluntary obligation without any mental
reservation or purpose of evasion. So help me God.
[A.C. No. 5135. September 22, 1999]
ELSIE B. AROMIN, FE B. YABUT, TIBURCIO B. BALLESTEROS, JR.,
and JULIAN B. BALLESTEROS, complainants, vs. ATTY.
VALENTIN O. BONCAVIL,respondent.
DECISION
MENDOZA, J.:
This is a complaint[1] filed by Elsie B. Aromin, Fe B. Yabut, Tiburcio B.
Ballesteros, Jr., and Julian B. Ballesteros against Atty. Valentin O.
Boncavil for violation of the Code of Professional Responsibility.
Complainants allege that their late father, Tiburcio Ballesteros, engaged
the services of respondent as counsel in two cadastral cases then
pending in the Regional Trial Court, Branch 18, Pagadian City, to
wit: Cadastral Case No. N-14, LRC CAD RMC No. N-475, Lot No. 6576,
Pls-119, entitled The Director of Lands, Petitioner, v. Faustina Calibo,
PINEDAPCGRNMAN
Claimant, v. Tiburcio Ballesteros, Claimant, and Cadastral Case No. N-
14, LRC CAD. REG. No. N-475, Lot No. 7098, Pls-119, entitled The
Director of Lands, Petitioner, v. Belinda Tagailo-Bariuan, Claimant, v.
Tiburcio Ballesteros, Claimant; that despite receipt of the adverse
decision in the two cases on August 8, 1991, respondent did not inform
herein complainants of the same nor file either a motion for
reconsideration or a notice of appeal to prevent the decision from
becoming final; that respondent did not file either a written offer of
evidence despite the trial courts directive for him to do so; and that it took
respondent four years from the time complainants father died before he
filed a motion to substitute herein complainants in the trial court. The
foregoing acts and omissions of respondent are alleged to be in violation
of the following provisions of the Code of Professional Responsibility:
CANON 15 - A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND
LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS
CLIENT.
CANON 17 - A LAWYER OWES FIDELITY TO THE CAUSE OF HIS
CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND
CONFIDENCE REPOSED IN HIM.
CANON 18 - A LAWYER SHALL SERVE HIS CLIENT WITH
COMPETENCE AND DILIGENCE.
Rule 18.03 - A lawyer shall not neglect a legal matter entrusted to him,
and his negligence in connection therewith shall render him liable.
Rule 18.04 - A lawyer shall keep the client informed of the status of his
case and shall respond within a reasonable time to the clients request
for information.
Complainants pray that such disciplinary sanctions as may be
appropriate be imposed against Atty. Valentin Boncavil.
In his answer,[2] respondent alleges that the day before the cadastral
court rendered its decision, he met by chance herein complainant Julian
Ballesteros, who, after inquiring as to the status of the cadastral cases
and learning that the same had already been submitted for resolution,
told him You are too busy to attend to our case, it would be better if
somebody else would take over, to which, according to respondent, he
replied, It is all right with me, it is your privilege; that as a self-respecting
legal practitioner, he did not want to continue rendering unwanted legal
services to a client who has lost faith in his counsel; that he thus
considered himself discharged as counsel in the two cadastral cases and
relieved of the obligation either to move for a reconsideration of the
decision or to file a notice of appeal and to notify herein complainants of
the decision against them; that, contrary to complainants assertion, he
did make an offer of evidence, although he reserved the right to submit
authenticated copies of the documentary evidence from the Bureau of
Lands in Manila; that the delay in the substitution of Tiburcio Ballesteros
with his heirs was because neither the heirs nor the administrator of the
intestate estate of Tiburcio Ballesteros informed him of the latters death
despite the heirs knowledge that he was the counsel in the two cadastral
cases.
On June 8, 1994, complainants moved for a judgment on the pleadings,
alleging that the facts are not in dispute and the respondents answer
admits the material allegations of the complaint.[3]
On June 13, 1994, IBP Commissioner Plaridel C. Jose required
respondent to comment on the foregoing motion within five (5) days from
notice.[4] On October 12, 1995, he set the case for hearing on November
17, 1995.[5]
On November 17, 1995, however, only complainants Tiburcio
Ballesteros, Jr. and Fe Yabut and their counsel appeared. This fact,
together with respondents failure to comment on complainants motion
submitting the case for resolution on the basis of the pleadings, prompted
Commissioner Jose to grant complainants motion.[6]
On June 21, 1996, Commissioner Jose submitted his report
recommending that respondent be suspended from the practice of law
for six months with warning that repetition of the same or similar acts
shall be dealt with more severely.
Page 233
On May 17, 1997, the IBP Board of Governors passed Resolution No.
XII-97-16 approving Commissioner Joses report and recommendation.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
After due consideration of the records of this case, the Court finds the
recommendation of the IBP to be well taken.
The facts clearly show that respondent violated Canon 18 of the Code of
Professional Responsibility which provides that a lawyer shall serve his
client with competence and diligence. By abandoning complainants
cases, respondent violated Rule 18.03 of the same Code which requires
that a lawyer not neglect a legal matter entrusted to him, and his
negligence in connection therewith shall render him liable. As stated
in Santiago v. Fojas:[7]
Once he agrees to take up the cause of a client, the lawyer owes fidelity
to such cause and must always be mindful of the trust and confidence
reposed in him. He must serve the client with competence and diligence,
and champion the latters cause with wholehearted fidelity, care, and
devotion. Elsewise stated, he owes entire devotion to the interest of the
client, warm zeal in the maintenance and defense of his clients rights,
and the exertion of his utmost learning and ability to the end that nothing
be taken or withheld from his client, save by the rules of law, legally
applied. This simply means that his client is entitled to the benefit of any
and every remedy and defense that is authorized by the law of the land
and he may expect his lawyer to assert every such remedy or defense. If
much is demanded from an attorney, it is because the entrusted privilege
to practice law carries with it the correlative duties not only to the client
but also to the court, to the bar, and to the public. A lawyer who performs
his duty with diligence and candor not only protects the interest of his
client; he also serves the ends of justice, does honor to the bar, and helps
maintain the respect of the community to the legal profession.
Nor can we sustain respondents claim that he did not file either a motion
for reconsideration or a notice of appeal from the decision in the two
cases because he was under the impression from the remark of Julian
Ballesteros that complainants no longer wanted to retain his services. As
a member of the bar, he ought to know that the only way to be relieved
as counsel in a case is to have either the written conformity of his client
or an order from the court relieving him as counsel. Thus, Rule 138, 26
of the Rules of Court provides:
An attorney may retire at any time from any action or special proceeding,
by the written consent of his client filed in court. He may also retire at any
time from an action or special proceeding, without the consent of his
client, should the court, on notice to the client and attorney, and on
hearing, determine that he ought to be allowed to retire. In case of
substitution, the name of the attorney newly employed shall be entered
on the docket of the court in place of the former one, and written notice
of the change shall be given to the adverse party.
As a matter of fact, Julian Ballesteros, who allegedly made the remarks
which became the basis for respondents inaction, denied ever having
made those statements, much less having discharged respondent as
counsel.[8] Moreover, Julian Ballesteros is only one of the heirs of
Tiburcio Ballesteros, and it has not been shown that he was speaking on
behalf of the other heirs when he allegedly relieved respondent of his
services. In any case, if respondent had really been discharged as
counsel, although not in accordance with the Rules of Court, he should
have informed the trial court and asked that he be allowed to withdraw
from the cases.[9] Until his dismissal or withdrawal is made of record, any
judicial notice sent to him was binding upon his clients even though as
between them the professional relationship may have been
terminated.[10] He cannot validly claim that, in any case, the decision has
not yet become final for want of service on the Solicitor General, for the
period within which complainants can file a motion for reconsideration or
notice of appeal is counted from receipt of the decision by their counsel
of record.
Nor is this the first time that respondent is remiss in his professional
obligation toward complainants. In his answer, he practically admits that
he was late in moving for the substitution of Tiburcio Ballesteros by
herein complainant heirs. Respondents excuse that he was not
immediately informed by complainants of their fathers death is without
merit. Four years after the death of complainants father is simply too long
a period for him not to have known of his clients death, especially as it
PINEDAPCGRNMAN
appears that he and complainants live in close proximity with each
other. During those four years, surely occasions would have arisen
where respondent had to confer with Tiburcio Ballesteros regarding the
cases.
Respondent also, in effect, admits that he failed to file a written offer of
evidence as required by the court in its order, dated June 21, 1983. What
he actually filed was only a provisional written offer of evidence because
the documents offered were not certified true copies. What the Court
makes of respondents garbled explanation[11] for this lapse is that he
could not bother to go to the Bureau of Lands in Manila to get certified
true copies because a check with the Bureau of Lands in Pagadian City
showed the same documentary evidence to be substantially the same
true copies. If that were the case, respondent did not explain why he did
not then go to the Pagadian City branch of the Bureau of Lands to get
the certified true copies of his documentary evidence.
The recommended penalty of suspension from the practice of law for six
months for respondents gross negligence in the handling of the two
cadastral cases is in accordance with our decisions.[12]
WHEREFORE, the Court RESOLVED to suspend respondent Atty.
Valentin O. Boncavil from the practice of law for six (6) months from
notice with a warning that a repetition of a similar offense will be dealt
with more severely. Let a copy of this decision be attached to Atty.
Boncavils personal record in the Office of the Bar Confidant and copies
be furnished to all chapters of the Integrated Bar of the Philippines (IBP)
and to all the courts in the land.
SO ORDERED.
[A.C. No. 5474. August 28, 2003]
REDENTOR S. JARDIN, complainant, vs. ATTY. DEOGRACIAS
VILLAR, JR. respondent.
DECISION
TINGA, J.:
Law is a profession and lawyers are professionals. Implicit in
professionalism is a certain level of competence and dedication. Far
from measuring up to the standards of a lawyers conduct set in the Code
of Professional Responsibility which are also the hallmarks of
professionalism, the lawyer charged in this case virtually abandoned his
clients cause.
This is a complaint for disbarment filed by complainant Redentor S.
Jardin against respondent Atty. Deogracias Villar, Jr., who was his
counsel in a case, for the latters failure to formally offer the documentary
exhibits, which failure resulted in the dismissal of the case.
The complainant Redentor S. Jardin is the plaintiff in Civil Case No.
21480 of the Metropolitan Trial Court, Quezon City. A building contractor,
he engaged the services of the respondent to represent him in the case
which is for the collection of the sum of One Hundred Five Thousand
Seven Hundred Forty Four and 80/100 Pesos (P105,744.80),
representing the alleged unpaid contract price for the repair of the house
of the defendants in the case.[1] The case went its course, but later
despite several extensions of time given by the trial court, the respondent
failed to file his formal offer of exhibits.[2] Consequently, on May 7, 2001,
the trial court issued an Order the full text of which reads as follows:
When this case was called for continuation of hearing, Atty. Rodrigo C.
Reyes, counsel for the defendants manifested that up to this date, Atty.
Villar, Jr., counsel for the plaintiff has not formally offer (sic) the
documentary exhibits for the plaintiff in writing as Order (sic) by the
Court.
Records show that on February 26, 2001, Atty. Villar, Jr. was given an
extension period of TEN (10) days within which to formally offer the
documentary exhibits in writing copy furnished Atty. Reyes, counsel for
the defendants who was given a period of Five (5) days within which to
comment and/or oppose the admissibility of the said exhibits and set the
continuation of the hearing of this case for the presentation of evidence
for the defendant on March 30, 2001.
Page 234
On March 30, 2001, when this case was called for hearing records show
that Atty. Villar, Jr., counsel for the plaintiff has not complied yet with the
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
formal offer of documentary exhibits for the plaintiff and again, in the
interest of justice, the Court give (sic) Atty. Villar, Jr. another period of
TEN (10) days within which to formally offer the documentary exhibits in
writing and set the continuation of the hearing of this case for today for
the presentation of evidence for the defendant.
Records show however, that on this date, the said counsel for the plaintiff
have (sic) not complied with the submission of documentary exhibits for
the plaintiff. For lack of interest on the part of the counsel for the plaintiff
to further prosecute this case, upon motion of Atty. Reyes the oral
testimonial evidence submitted by the plaintiff is hereby ordered
WITHDRAWN from the records and upon further motion of ordered
WITHDRAWN from the records and upon further motion of Atty. Reyes,
this case is hereby ordered DISMISSED for lack of interest on the part
of the plaintiff to further prosecute this case.
Upon motion of Atty. Reyes, set the continuation of the hearing of this
case for the presentation of evidence on the counter claim on the part of
the defendant on June 15, 2001 at 8:30 oclock in the morning.[3]
The dismissal of the collection case prompted the complainant to file a
verified Affidavit-Complaint[4] dated July 4, 2001 for the disbarment of the
respondent with this Court, wherein he also alleged the developments
which transpired after the dismissal of the case, viz: that he already
terminated the services of the respondent as his counsel; that the
respondent failed to return the originals of the documentary exhibits
entrusted to him; and that the respondent finally handed over the
documents only as an aftermath of a heated argument he had with the
complainants wife.
In a Resolution[5] dated September 10, 2001, this Court required the
respondent to comment on the complaint against him. However, the
respondent failed to file his comment despite two (2) extensions of time
granted to him. Thus, the Court resolved to dispense with the filing of the
respondents comment and referred the case to the Integrated Bar of the
Philippines (IBP) for investigation, report and recommendation.[6]
Similarly, the respondent failed to file his answer as required by the
Commission on Bar Discipline of the IBP.[7] Hence, the averments made,
as well as the evidence submitted by the complainant, are undisputed.
Investigating Commissioner Attorney Milagros V. San Juan, IBP
Commission on Bar Discipline, found the respondent liable for
negligence and recommended his suspension from the practice of law
for a period of six (6) months, with the warning that a similar conduct in
the future will be dealt with more severely. The salient portions of
the Report and Recommendationdated March 4, 2003 of the
Investigating Commissioner are as follows:
Complainants contention that respondent Villar failed to file plaintiffs
Formal Offer of Documentary Evidence is substantiated by the Orders
dated 26 February 2001, 30 March 2001 and 7 May 2001 (Annexes 7, 9
and 10 respectively). The Order dated 7 May 2001 (Annex 10 of
complainants Affidavit) reads:
....
It is clear from the above-quoted Order that it was the failure of
respondent Villar to file the Formal Offer of Documentary Exhibits which
led to the dismissal of Civil Case No. 21480 to the prejudice of
respondents client, herein complainant. Respondent Villar has failed to
offer any explanation for his failure to file the Formal Offer of Exhibits
within the several extensions of time given him by the trial court to do
so. There is no doubt that it was part of respondents obligation to
complainant as the latters counsel of record in Civil Case No. 21480, to
file said Formal Offer of Documentary Exhibits, and respondents
dereliction of this duty has prejudiced the interests of respondents client.
In accepting Civil Case No. 21480, it was respondents obligation to take
all measures to protect the interests of his client in accordance with
Canon (sic) 18 & 19 of the Code of Professional Responsibility but it was
respondents negligence or omission which has caused damage to such
interests.[8]
In its Resolution dated April 26, 2003, the IBP Board of Governors
adopted and approved said Report and Recommendation of the
Investigating Commissioner.
PINEDAPCGRNMAN
We are also in full accord with the findings and recommendation of the
Investigating Commissioner.
At the outset, we find particularly glaring the respondents disregard of
the resolution of this Court directing him to file his comment on the
complaint. He exhibited a similar attitude in failing to file his answer when
required by the Commission on Bar Discipline. The repeated cavalier
conduct belies impudence and lack of respect for the authority of this
Court.
The record clearly shows that the respondent has been languid in the
performance of his duties as counsel for the complainant. He was given
by the trial court several extensions of time: first, an extension of ten (10)
days from February 26, 2001 or until March 8, 2001, and; second,
another extension of ten (10) days from March 30, 2001, when the case
was called for hearing and the court noted that no such formal offer had
been filed then, or until April 9, 2001. It must also be emphasized that
there was an interim period of twenty two (22) days between March 8,
2001 and March 30, 2001, and another interval of twenty-seven (27)
days from April 9, 2001 until May 7, 2001 when the Order dismissing the
case was issued. Effectively, therefore, respondent had three (3) months
and nine (9) days within which to file the formal offer of exhibits.[9] The
respondent did not bother to give an explanation even in mitigation or
extenuation of his inaction.
Manifestly, the respondent has fallen short of the competence and
diligence required of every member of the Bar. The pertinent Canons of
the Code of Professional Responsibilityprovide:
CANON 12 - A LAWYER SHALL EXERT EVERY EFFORT AND
CONSIDER IT HIS DUTY TO ASSIST IN THE SPEEDY AND
EFFICIENT ADMINISTRATION OF JUSTICE.
....
Rule 12.03 - A lawyer shall not, after obtaining extensions of time to file
pleadings, memoranda or briefs, let the period lapse without submitting
the same or offering an explanation for his failure to do so.
CANON 17 A LAWYER OWES FIDELITY TO THE CAUSE OF HIS
CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND
CONFIDENCE REPOSED IN HIM.
CANON 18 A LAWYER SHALL SERVE HIS CLIENT WITH
COMPETENCE AND DILIGENCE.
....
Rule 18.03 - A lawyer shall not neglect a legal matter entrusted to him
and his negligence in connection therewith shall render him liable.
....
CANON 19 - A LAWYER SHAL REPRESENT HIS CLIENT WITH ZEAL
WITHIN THE BOUNDS OF THE LAW.
It is indeed dismaying to note the respondents patent violation of his duty
as a lawyer. He committed a serious transgression when he failed to
exert his utmost learning and ability and to give entire devotion to his
clients cause. His client had relied on him to file the formal offer of
exhibits among other things. But he failed him. Resulting as it did in the
dismissal of the case, his failure constitutes inexcusable default. It
therefore behooves the Court to take action on the respondents mortal
infraction, which caused undeserved and needless prejudice to his
clients interest, adversely affected the confidence of the community in
the legal profession and eroded the publics trust in the judicial system.
As an attorney, the respondent is sworn to do his level best and to
observe full fidelity to the courts and his clients.[10] This means that in
relation to his duty to his clients he should put his maximum skills and
full commitment to bear in representation of their causes.
We can only echo our pronouncements in Basas v. Icawat,[11] to wit:
Respondent manifestly fell short of the diligence required of his
profession, in violation of Canon 18 of the Code of Professional
Responsibility, which mandates that a lawyer shall serve his client with
competence and diligence. Rule 18.03 provides:
"A lawyer shall not neglect a legal matter entrusted to him, and his
negligence in connection therewith shall render him liable."
Page 235
As we reiterated in Aromin, et al. v. Boncavil, A. C. No. 5135, September
22, 1999:
Intelligentia et Scientia Semper Mea
LEGAL ETHICS PINEDAPCGRNMAN
Once he agrees to take up the cause of a client, the lawyer owes fidelity intention and motives were honest and he acted in good faith. However,
to such cause and must always be mindful of the trust and confidence representation of conflicting interest may be allowed where the parties
reposed in him. He must serve the client with competence and diligence, consent to the representation after full disclosure of facts. (Nakpil vs.
and champion the latter's cause with wholehearted fidelity, care, and Valdez, 286 SCRA 758).
devotion. Elsewise stated, he owes entire devotion to the interest of the General Rule:An attorney cannot represent adverse interest.
client, warm zeal in the maintenance and defense of his client's rights, Exception:Where the parties consent to the representation
and the exertion of his utmost learning and ability to the end that nothing after full disclosure of facts.
be taken or withheld from his client, save by the rules of law, legally
The TEST in determining Conflicting Interest: The test is
applied. This simply means that his client is entitled to the benefit of any
whether or not the acceptance of a new relation will prevent
and every remedy and defense that is authorized by the law of the land
an attorney from the full discharge of his duty of individual
he may expect his lawyer to assert every such remedy or defense. If
fidelity and loyalty to his client or invite suspicion of
much is demanded from an attorney, it is because the entrusted privilege
unfaithfulness in double-dealing in the performance
to practice law carries with it the correlative duties not only to the client
thereof.(Tiana vs. Ocampo)
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
HUMBERTO C. LIM, JR., A.C. No. 5303
maintain the respect of the community to the legal profession.[12]
This Court has emphatically ruled that the trust and confidence in behalf of PENTA RESORTS
necessarily reposed by clients requires in the attorney a high standard CORPORATION/Attorney-in-
and appreciation of his duty to his clients, his profession, the courts and Fact of LUMOT A. JALANDONI,
the public.[13] Every case a lawyer accepts deserves his full attention, Complainant, Present:
diligence, skill and competence, regardless of its importance and
whether he accepts it for a fee or free.[14] Certainly, a member of the Bar PUNO, J., Chairperson,
who is worth his title cannot afford to practice the profession in a SANDOVAL-GUTIERREZ,
lackadaisical fashion. A lawyers lethargy from the perspective of the - v e r s u s - CORONA,
Canons is both unprofessional and unethical. AZCUNA and
The IBP recommended the suspension of the respondent from the GARCIA, JJ.
practice of law for a period of six (6) months. We find the recommended
penalty commensurate with the offense committed.
ATTY. NICANOR V. VILLAROSA,
In Aromin v. Boncavil,[15] this Court suspended a lawyer for six (6)
months for his failure to file a written offer of evidence despite the trial Respondent. Promulgated:
courts directive.
The failure to file formal offer of evidence is in pari materia with failure to June 15, 2006
file brief, which as this Court held in Perla Compania de Seguros, Inc. v.
Saquilabon[16] constitutes inexcusable negligence. In x----------------------------------------x
the Saquilabon case, the respondent lawyer was suspended from the
practice of law for a period of six (6) months. The Court likewise imposed
the same penalty upon the respondents in the cases of In Re: Atty. David RESOLUTION
Briones,[17] Spouses Galen v. Paguinigan,[18] Spouses Rabanal v.
Rabanal[19] for their failure to file the briefs of their respective clients. CORONA, J.
WHEREFORE, in view of the foregoing, respondent Atty. Deogracias Humberto C. Lim Jr.[1] filed a verified complaint for disbarment against
Villar is SUSPENDED from the practice of law for six (6) months effective
respondent Atty. Nicanor V. Villarosa on July 7, 2000.[2] On February 19,
upon finality hereof, with the WARNING that the repetition of a similar
2002, respondent moved for the consolidation of the said complaint with
violation will be dealt with even more severely.
Let a copy of this decision be entered in the personal records of the following substantially interrelated cases earlier filed with the First
respondent as a member of the Bar, and copies furnished the Bar Division of this Court:
Confidant, the Integrated Bar of the Philippines, and the Court 1. Administrative Case No. 5463: Sandra F. Vaflor v. Atty.
Administrator for circulation to all courts in the country. Adoniram P. Pamplona and Atty. Nicanor V. Villarosa;
SO ORDERED. 2. Administrative Case No. 5502: Daniel A. Jalandoni v. Atty.
Nicanor V. Villarosa.
Rule 15.01 A lawyer in conferring with a prospective client, shall
ascertain as soon as practicable whether the matter would involve In a resolution dated February 24, 2003, this Court considered
a conflict with another client or his own interest, and if so, shall Administrative Case No. 5463 closed and terminated.[3] On February 4,
forthwith inform the prospective client. 2004, considering the pleadings filed in Administrative Case No. 5502,
the Court resolved:
Rule 15.03 A lawyer shall not represent conflicting interests
except by written consent of all concerned given after a full
(a) to NOTE the notice of the resolution dated September 27,
disclosure of the facts.
2003 of the Integrated Bar of the Philippines dismissing the case against
Rule on Conflicting Interest respondent for lack of merit; and
It is generally the rule based on sound public policy that an
attorney cannot represent adverse interest. It is highly improper to (b) to DENY, for lack of merit, the petition filed by complainant
represent both sides of an issue. The proscription against representation praying that the resolution of the Integrated Bar of the Philippines
of conflicting interest finds application where the conflicting interest dismissing the instant case be reviewed and that proper sanctions be
Page 236

arises with respect to the same general matter and is applicable however imposed upon respondent.[4]
slight such adverse interest may be. It applies although the attorneys

Intelligentia et Scientia Semper Mea

LEGAL ETHICS
No motion for reconsideration of the aforesaid denial in Administrative
Case No. 5502 appears in the records. The Court is now called upon to
determine the merits of this remaining case (A.C. No. 5303) against
respondent.
The complaint read:
AS FIRST CAUSE OF ACTION
xxx xxx xxx
- II -
That respondent is a practicing lawyer and a member of the Integrated
Bar of the Philippines, Bacolod City, Negros Occidental Chapter. That
sometime on September 19, 1997, Lumot A. Jalandoni,
Chairman/President of PRC was sued before RTC, Branch 52 in Civil
Case No. 97-9865, RE: Cabiles et al. vs. Lumot Jalandoni, et al. The
latter engaged the legal services of herein respondent who formally
entered his appearance on October 2, 1997 as counsel for the
defendants Lumot A. Jalandoni/Totti Anlap Gargoles. Respondent as a
consequence of said Attorney-Client relationship represented Lumot A.
Jalandoni et al in the entire proceedings of said case. Utmost trust and
confidence was reposed on said counsel, hence delicate and confidential
matters involving all the personal circumstances of his client were
entrusted to the respondent. The latter was provided with all the
necessary information relative to the property in question and likewise
on legal matters affecting the corporation (PRC) particularly [involving]
problems [which affect] Hotel Alhambra. Said counsel was privy to all
transactions and affairs of the corporation/hotel.
- III -
That it was respondent who exclusively handled the entire proceedings
of afore-cited Civil Case No. 97-9865 [and] presented Lumot A.
Jalandoni as his witness prior to formally resting his case. However, on
April 27, 1999 respondent, without due notice prior to a scheduled
hearing, surprisingly filed a Motion to withdraw as counsel, one day
before its scheduled hearing on April 28, 1999. A careful perusal of said
Motion to Withdraw as Counsel will conclusively show that no copy
thereof was furnished to Lumot A. Jalandoni, neither does it bear her
conformity. No doubt, such notorious act of respondent resulted to (sic)
irreparable damage and injury to Lumot A. Jalandoni, et al since the
decision of the court RTC, Branch 52 proved adverse to Lumot A.
Jalandoni, et al. The far reaching effects of the untimely and
unauthorized withdrawal by respondent caused irreparable damage and
injury to Lumot A. Jalandoni, et al; a highly meritorious case in favor of
his client suddenly [suffered] unexpected defeat.
- IV -
That the grounds alleged by respondent for his withdrawal as counsel of
Lumot A. Jalandoni, et al. was that he is [a] retained counsel of Dennis
G. Jalbuena and the Fernando F. Gonzaga, Inc. It was Dennis G.
Jalbuena who recommended him to be the counsel of Lumot A.
Jalandoni, et al. It is worthy to note that from the outset, respondent
already knew that Dennis G. Jalbuena is the son-in-law of Lumot A.
Jalandoni being married to her eldest daughter, Carmen J.
Jalbuena. The other directors/officers of PRC were comprised of the
PINEDAPCGRNMAN
eldest sibling of the remaining children of Lumot A. Jalandoni made in
accordance with her wishes, with the exception of Carmen J. Jalbuena,
the only daughter registered as one of the incorporators of PRC,
obviously, being the author of the registration itself [sic]. Respondent
further stated that he cannot refuse to represent Dennis G. Jalbuena in
the case filed against the latter before the City Prosecutors Office by
PRC/Lumot A. Jalandoni due to an alleged retainership agreement with
said Dennis G. Jalbuena. [He] likewise represented Carmen J. Jalbuena
and one Vicente Delfin when PRC filed the criminal complaint against
them. On April 06, 1999, twenty-one (21) days prior to respondents filing
of his Motion to Withdraw as Counsel of Lumot A. Jalandoni, et al.,
respondent entered his appearance with Bacolod City Prosecutor OIC-
Vicente C. Acupan, through a letter expressly stating that effective said
date he was appearing as counsel for both Dennis G. Jalbuena and
Carmen J. Jalbuena and Vicente Delfin in the Estafa case filed by the
corporation (PRC) against them. Simply stated, as early as April 6,
1999 respondent already appeared for and in behalf of the Sps. Carmen
and Dennis Jalbuena/Vicente Delfin while concurrently representing
Lumot A. Jalandoni, et al. in Civil Case No. 97-9865. However, despite
being fully aware that the interest of his client Lumot A. Jalandoni
[holding an equivalent of Eighty-two (82%) percent of PRCs shares of
stocks] and the interest of PRC are one and the same, notwithstanding
the fact that Lumot A. Jalandoni was still his client in Civil Case No. 97-
9862, respondent opted to represent opposing clients at the same
time. The corporations complaint for estafa (P3,183,5525.00) was filed
against the Sps. Dennis and Carmen J. Jalbuena together with UCPB
bank manager Vicente Delfin. Succeeding events will show that
respondent instead of desisting from further violation of his [lawyers] oath
regarding fidelity to his client, with extreme arrogance, blatantly ignored
our laws on Legal Ethics, by palpably and despicably defending the Sps.
Dennis and Carmen J. Jalbuena in all the cases filed against them by
PRC through its duly authorized representatives, before the Public
Prosecutors Office, Bacolod City (PP vs. Sps. Dennis and Carmen J.
Jalbuena for False Testimony/Perjury, viol. of Art. 183 RPC under BC
I.S. No. 2000-2304; viol. of Art. 363, 364, 181 and 183 RPC under BC
I.S. 2000-2343, PP vs. Carmen J. Jalbuena for viol. of Art. 315 under BC
I.S. 2000-2125 and various other related criminal cases against the Sps.
Dennis and Carmen Jalbuena).
AS SECOND CAUSE OF ACTION
xxx xxx xxx
-I-
xxx xxx xxx
There is no dispute that respondent was able to acquire vast resources
of confidential and delicate information on the facts and circumstances
of [Civil Case No. 97-9865] when Lumot A. Jalandoni was his client which
knowledge and information was acquired by virtue of lawyer-client
relationship between respondent and his clients. Using the said
classified information which should have been closely guarded
respondent did then and there, willfully, unlawfully, feloniously conspired
and confabulated with the Sps. Dennis and Carmen J. Jalbuena in
concocting the despicable and fabricated charges against his former
clients denominated as PP vs. Lumot A. Jalandoni, Pamela J. Yulo,
Cristina J. Lim and Leica J. Lim for viol. of Art. 172 of Revised Penal
Code due to a board resolution executed by the corporation which the
Sps. Jalbuena, with the assistance of herein respondent, claimed to have
been made without an actual board meeting due to an alleged lack of
Page 237
quorum, [among other things]. Were it not for said fiduciary relation
between client and lawyer, respondent will not be in a position to furnish
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
his conspirator spouses with confidential information on Lumot A.
Jalandoni/PRC, operator of Alhambra Hotel.
- II -
Adding insult to injury, respondent opted to deliberately withhold the
entire case file including the marked exhibits of the Cabiles case for more
than three (3) months after his untimely unilateral withdrawal therefrom,
despite repeated demands from [his] client. On July 26, 1999,
capitalizing on his knowledge of the indispensability of said documents
particularly the marked exhibits, which deadline to file the formal offer of
exhibits was continually impressed upon the new counsel by the court,
respondent suddenly interposed an amount of five thousand (P5,000.00)
pesos as consideration prior to or simultaneous to the turnover of said
documents. [On] July 29, 1999, left with no other alternative owing to the
urgency of the situation, PRC issued Check No. 2077686 for P5,000.00
in payment thereof. This was duly received by respondents office on the
same date. Such dilatory tactics employed by respondent immensely
weakened the case of Lumot A. Jalandoni eventually resulting to (sic) an
adverse decision against [her].
Further demonstrating before this Honorable Court the notoriety of
respondent in representing conflicting interest which extended even
beyond the family controversy was his improper appearance in court in
Civil Case No. 99-10660, RE: Amy Albert Que vs. Penta Resorts Corp.,
this time favoring the party opponent of defendant who is even outside
the family circle. During the pre-trial hearing conducted on May 5, 1999,
while still [holding] exclusive possession of the entire case file of his client
in Civil Case No. 97-9865, respondent brazenly positioned himself
beside Atty. Adoniram P. Pamplona, counsel of plaintiff [in] a suit against
his client Lumot A. Jalandoni/PRC, coaching said counsel on matters [he
was privy to] as counsel of said client. Facts mentioned by said counsel
of the plaintiff starting from the last par. of page 25 until and including the
entire first par. of page 26 were the exact words dictated by respondent.
The entire incident was personally witnessed by herein complainant [who
was] only an arms length away from them during the hearing. However,
the particular portion showing the said irregular acts of respondent was
deliberately excluded by the court stenographer from the transcript,
despite her detailed recollection and affirmation thereof to herein
complainant. This prompted the new counsel of Lumot A. Jalandoni/PRC
to complain to the court why Atty. Nicanor Villarosa was coaching Atty.
Pamplona in such proceedings. Said corrections were only effected after
repeated demands to reflect the actual events which [transpired] on said
pre-trial.[5] (emphasis ours)
In an addendum to the July 4, 2000 complaint, Lim also pointed to certain
acts of respondent which allegedly violated the Rules of Court
perpetration of falsehood and abuse of his influence as former public
prosecutor. These supposedly affected the status of the cases that Lim
filed against the clients of respondent.[6]
In a motion to dismiss dated October 30, 2000, respondent claimed that
the complainant violated Circular No. 48-2000 because, in his
verification, Lim stated:
3. That [he] prepared this instant complaint for disbarment against Atty.
Nicanor V. Villarosa, read its contents, the same are all true and correct
to [his] own personal knowledge and belief.[7] (emphasis ours)
Section 4, Rule 7 of the Rules of Court explicitly provides that:
PINEDAPCGRNMAN
SEC. 4. Verification. Except when otherwise specifically required by law
or rule, pleadings need not be under oath, verified or accompanied by
affidavit. (5a)
A pleading is verified by an affidavit that the affiant has read the pleading
and that the allegations therein are true and correct of his personal
knowledge or based on authentic records.
A pleading required to be verified which contains verification based
on information and belief or upon knowledge, information and
belief, or lacks a proper verification, shall be treated as an unsigned
pleading. (As amended, A.M. 00-2-10, May 1, 2000.) (emphasis ours)
While the Rules provide that an unsigned pleading produces no legal
effect,[8] the court may, in its discretion, allow such deficiency to be
remedied if it appears that the same was due to mere inadvertence and
not intended for delay.[9] We find that Lim was not shown to have
deliberately filed the pleading in violation of the Rules.
In his comment dated December 1, 2000, respondent, reiterating his
ground for the dismissal of the complaint, added:
[that] complainant Humberto C. Lim, Jr. has not only violated the Rule on
Civil Procedure but he was/is NOT duly authorize[d] by the Penta
Resorts Corp. (PRC) nor [by] Lumot A. Jalandoni to file this complaint
against [him]. Neither [was Lim] a proper party to file this complaint. This
fact is an additional ground to have his case dismissed because
Humberto C. Lim Jr. exceeded whatever authority was granted to him as
embodied in a resolution and the Special Power of Attorney allegedly
granted to him by the complainants.[10]
To bolster his assertion that the complaint against him was unfounded,
respondent presented the following version in his defense:
FACTS OF THE CASE
xxx xxx xxx
That Mrs. Jalandoni has two sons-in-law, namely Dennis G. Jalbuena
married to her daughter, Carmen J. Jalbuena, and Humberto C. Lim Jr.,
the herein complainant married to her daughter, Cristina J. Lim.
That Mrs. Lumot Jalandoni organized a corporation namely the Penta
Resorts Corporation (PRC) where she owned almost ninety seven
percent (97%). In other words, in reality, Penta Resorts Corporation is a
single proprietorship belonging to Mrs. Jalandoni. That the only property
of the corporation is as above-stated, the Alhambra Hotel, constructed
solely through the effort of the spouses Jalbuena on that parcel of land
now claimed by the Cabiles family.
That sometime on the year 1997 the case above-cited (Civil Case No.
97-9865) was filed before the court against the sisters.
That [he], being RETAINED counsel of the spouses Dennis and Carmen
J. Jalbuena was RECOMMENDED by the spouses to the sisters to
answer the complaint filed against them.
II.
That as counsel to the sisters, [he] filed a Motion for Extension Of Time
Page 238
To File Answer and ultimately, [he] filed an Answer With Counter-Claim
And Prayer For Issuance Of Writ Of Preliminary Injunction.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
That reading the Answer it is clear that the defense of the sisters totally
rest on public documents (the various titles issued to the land in
question because of the series [of changes] in ownership) and the sisters
and their parents actual occupation and possession thereof. xxx xxx xxx
Mr. Lim[s] accusation against [him] in the light of the above-facts is the
best evidence of Humberto C. Lim, Jr.s penchant for exaggeration and
distortion of the truth. Since the defense of the sisters to retain ownership
of the land in question is based on PUBLIC documents, what delicate
and confidential matters involving personal circumstances of the sisters
allegedly entrusted to [him], is Mr. Humberto C. Lim, Jr. talking about in
paragraphs I and II of his Complaint? What [privity] to all transactions
and affairs of the corporation/hotel is he referring to? Whatever
transactions the corporation may have been involved in or [may be
getting involved into], is totally immaterial and irrelevant to the defense
of the sisters.
There was nothing personal [about the] circumstances of the sisters nor
transactions of the corporation [which were] discussed. The documents
being offered as evidence, [he] reiterate[s] for emphasis, are public; the
presumption is that the whole world knows about them.
That [he] [also] vehemently den[ies] another distorted allegation of Mr.
Lim that [he] represented Mrs. Jalandoni [in] the entire proceedings of
[the] case. [Lim] himself attested that [he] [filed] [his] Motion to Withdraw
As Counsel, dated April 26, 1999 , before the trial court, sometime on
April 27, 1999. How then could [he] have represented Mrs. Jalandoni for
[the] entire proceedings of the case?
Further, Mr. Lim intentionally hid from this Honorable Court the
important fact that [his] Motion to Withdraw was APPROVED by the trial
court because of the possibility of a conflict of interest. xxx xxx xxx. [11]
Respondent discredited Lims claim that he deliberately withheld the
records of the cited civil case. He insisted that it took him just a few days,
not three months, to turn over the records of the case to Lim.[12] While he
admitted an oversight in addressing the notice of the motion to withdraw
as counsel to Mrs. Totti Anlap Gargoles instead of Mrs. Jalandoni at
Hotel Alhambra, he maintained that it was the height of hypocrisy to
allege that Mrs. Jalandoni was not aware of his motion to
withdraw[13] since Mrs. Gargoles is Mrs. Jalandonis sister and Hotel
Alhambra is owned by PRC which, in turn, actually belongs to Mrs.
Jalandoni. Respondent also argued that no prejudice was suffered by
Mrs. Jalandoni because she was already represented by Atty. Lorenzo
S. Alminaza from the first hearing date.[14] In fact, respondent contended,
it was he who was not notified of the substitution of counsels.[15]
As to the bill of P 5,000, respondent stated:
That Mr. Lim begrudge[s] [him] for billing Mrs. Jalandoni Five Thousand
(Php5,000.00) Pesos. Mr. Humberto C. Lim Jr. conveniently forgets that
the net worth of the property together with its improvements, under
litigation in that Cabiles, et al. vs. Gargoles et al. case, is a minimum
of THIRTY MILLION (Php30,000,000.00) PESOS then, and more so
now. [He] cannot find any law which prohibits a counsel from billing a
client for services in proportion to the services he rendered.[16]
In view of these developments, respondent was adamant that:
PINEDAPCGRNMAN
the only real question to be answered in this complaint is why Mr. Lim so
consistently [determined] to immerse the Jalandoni family [in] a series of
criminal and civil suits and to block all attempts to reconcile the family by
prolonging litigations, complaints and filing of new ones in spite of the
RESOLUTION of the corporation and the UNDERTAKING of the
members.[17]
On June 18, 2001, the Court resolved to refer the complaint to the
Integrated Bar of the Philippines (IBP) for investigation. Commissioner
Lydia A. Navarro made the following report and recommendation:
xxx xxx xxx
After going over the [pieces of evidence] submitted by the parties[,] the
undersigned noted that from the onset, PRC had a case wherein
respondent was its counsel. Later on, complainant had a case against
spouses Jalbuena where the parties were related to each other and the
latter spouses were represented by the respondent as their retained
counsel; after respondent had allegedly withdrawn as counsel for the
complainant in Civil Case No. 97-9865.
Being the husband of one of the complainants which respondent himself
averred in his answer, it is incumbent upon Humberto Lim Jr. to represent
his wife as one of the representatives of PRC and Alhambra Hotel in the
administrative complaint to protect not only her interest but that of the
[familys].
From the facts obtaining, it is evident that complainant had a lawyer-
client relationship with the respondent before the latter [was] retained as
counsel by the Spouses Jalbuena when the latter were sued by
complainants representative.
We cannot disregard the fact that on this situation for some reason or
another there existed some confidentiality and trust between
complainants and respondent to ensure the successful defense of their
cases.
Respondent for having appeared as counsel for the Spouses Jalbuena
when charged by respondents former client Jalandoni of PRC and
Alhambra Hotel, represented conflicting interests in violation of the
Canon of Professional Responsibility.
As such therefore, the Undersigned has no alternative but to respectfully
recommend the suspension of the respondent from the practice of law
for a period of six (6) months from receipt hereof.
RESPECTFULLY SUBMITTED.
Pasig City, June 20, 2002.[18]
The IBP Board of Governors (Board), however, reversed the
recommendation of the investigating commissioner and resolved to
dismiss the case on August 3, 2002.[19] Lumot A. Jalandoni filed a motion
for reconsideration (MR) on October 18, 2002 but the Board denied the
MR since it no longer had jurisdiction to consider and resolve a matter
already endorsed to this Court.[20]
Before delving into the core issues of this case, we need to address
some preliminary matters.
Page 239
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Respondent argues that the alleged resolution of PRC and the special
power of attorney given by Lumot A. Jalandoni to Humberto did not
contemplate the filing of an administrative complaint.[21] Citing the Rules
of Court, respondent said that:
[s]uch complaints are personal in nature and therefore, the filing of the
same, cannot be delegated by the alleged aggrieved party to any third
person unless expressly authorized by law.
We must note, however, the following:
SECTION 1. How instituted. Proceedings for disbarment, suspension or
discipline of attorneys may be taken by the Supreme Court motu
propio, or by the Integrated Bar of the Philippines (IBP) upon the verified
complaint of any person. The complaint shall state clearly and concisely
the facts complained of and shall be supported by affidavits or persons
having personal knowledge of the facts therein alleged and/or by such
documents a may substantiate said facts.
The IBP Board of Governors may, motu propio or upon referral by the
Supreme Court or by a Chapter Board of Officers, or at the instance of
any person, initiate and prosecute proper charges against any erring
attorneys.[22] (emphasis ours)
Complaints against members of the Bar are pursued to preserve the
integrity of the legal profession, not for private vendetta. Thus, whoever
has such personal knowledge of facts constituting a cause of action
against erring lawyers may file a verified complaint with the Court or the
IBP.[23] Corollary to the public interest in these proceedings is the
following rule:
SEC. 11. Defects. No defect in a complaint, notice, answer, or in the
proceeding or the Investigators Report shall be considered as
substantial unless the Board of Governors, upon considering the
whole record, finds that such defect has resulted or may result in a
miscarriage of justice, in which event the Board shall take such
remedial action as the circumstances may warrant, including invalidation
of the entire proceedings.[24] (emphasis ours)
Respondent failed to substantiate his allegation that Lims complaint was
defective in form and substance, and that entertaining it would result in
a miscarriage of justice. For the same reason, we will no longer put in
issue the filing at the onset of a motion to dismiss by respondent instead
of an answer or comment.[25]
The core issues before us now are:
1. whether there existed a conflict of interest in the cases
represented and handled by respondent, and
2. whether respondent properly withdrew his services as
counsel of record in Civil Case No. 97-9865.
CONFLICT OF INTEREST
Petitioners alleged that as an offshoot of representing conflicting
interests, breach of attorney-client confidentiality and deliberate
withholding of records were committed by respondent. To effectively
unravel the alleged conflict of interest, we must look into the cases
involved.
PINEDAPCGRNMAN
In Civil Case No. 97-9865, respondent represented Lumot A. Jalandoni
and Totti Anlap Gargoles. This was a case for the recovery of possession
of property involving Hotel Alhambra, a hotel owned by PRC.
In BC I.S. No. 99-2192, Lim v. Vicente Delfin, Spouses Dennis and
Carmen Jalbuena, respondent was counsel for Delfin and the spouses
Jalbuena. In this case, plaintiff Cristina Lim sued the spouses Jalbuena
and Delfin on the basis of two checks issued by PRC for the construction
of Hotel Alhambra.[26] The corporate records allegedly reflected that the
contractor, AAQ Sales and Construction (AAQSC), was already paid in
full yet Amy Albert Que of AAQSC still filed a collection case against PRC
for an unpaid balance.[27] In her complaint-affidavit, Cristina averred:
11. That it was respondent Carmen J. Jalbuena, who took advantage of
[her] signatures in blank in DBP Check Nos. 0865590 and 0865591, and
who filled up the spaces of the payee, date and amount without the
knowledge and consent of any officer of the corporation and [herself],
after which she caused the delivery of the same checks to her husband
Dennis Jalbuena, who encashed without [their] knowledge and consent,
and received the proceeds of the same checks (as evidenced by his
signature in receipt of payment on the dorsal side of the said checks)
with the indispensable participation and cooperation of respondent
Vicente B. Delfin, the Asst. Vice President and Branch Head of UCPB.[28]
Notably, in his comment, respondent stated:
There was a possibility of conflict of interest because by this time, or one
month before [he] filed [his] Motion to Withdraw, Mrs. Jalandoni /Penta
Resorts Corporation, Mr. Lim, through his wife, Cristina J. Lim,
by another counsel, Atty. Lorenzo S. Alminaza, filed a criminal
complaint against the spouses Dennis and Carmen J. Jalbuena on
March 26, 1999 under BC-I.S. Case No. 99-2192.[29]
Similarly, in BC I.S. Nos. 00-1370, 2000-2304, 2000-2343, 00-2125, 00-
2230, 00-880, respondent positioned himself against PRCs interests.
And, in Civil Case No. 99-10660, a collection case against PRC, Atty.
Alminaza of PRC was alarmed by the appearance of respondent at the
table in court for AAQSCs counsel.[30]
Canon 15 of the Code of Professional Responsibility (CPR) highlights
the need for candor, fairness and loyalty in all the dealings of lawyers
with their clients. Rule 15.03 of the CPR aptly provides:
Rule 15.03 A lawyer shall not represent conflicting interests except by
written consent of all concerned given after a full disclosure of the facts.
It is only upon strict compliance with the condition of full disclosure of
facts that a lawyer may appear against his client; otherwise, his
representation of conflicting interests is reprehensible.[31] Conflict of
interest may be determined in this manner:
There is representation of conflicting interests if the acceptance of the
new retainer will require the attorney to do anything which will
injuriously affect his first client in any matter in which he represents
him and also whether he will be called upon in his new relation, to use
Page 240
against his first client any knowledge acquired through their
connection.[32] (emphasis ours)
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
The rule on conflict of interests covers not only cases in which
confidential communications have been confided but also those in which
no confidence has been bestowed or will be used.[33]
Another test of the inconsistency of interests is whether the acceptance
of a new relation will prevent an attorney from the full discharge of his
duty of undivided fidelity and loyalty to his client or invite suspicion of
unfaithfulness or double-dealing in the performance thereof, and also
whether he will be called upon in his new relation to use against his first
client any knowledge acquire in the previous employment. The first part
of the rule refers to cases in which the opposing parties are present
clients either in the same action or in a totally unrelated case; the
second part pertains to those in which the adverse party against whom
the attorney appears is his former client in a matter which is related,
directly or indirectly, to the present controversy.[34] (emphasis ours)
The rule prohibits a lawyer from representing new clients whose interests
oppose those of a former client in any manner, whether or not they are
parties in the same action or in totally unrelated cases. The cases here
directly or indirectly involved the parties connection to PRC, even if
neither PRC nor Lumot A. Jalandoni was specifically named as party-
litigant in some of the cases mentioned.
An attorney owes to his client undivided allegiance. After being retained
and receiving the confidences of the client, he cannot, without the free
and intelligent consent of his client, act both for his client and for one
whose interest is adverse to, or conflicting with that of his client in the
same general matter. The prohibition stands even if the adverse
interest is very slight; neither is it material that the intention and
motive of the attorney may have been honest.[35] (emphasis ours)
The representation by a lawyer of conflicting interests, in the absence of
the written consent of all parties concerned after a full disclosure of the
facts, constitutes professional misconduct which subjects the lawyer to
disciplinary action.[36]
Even respondents alleged effort to settle the existing controversy among
the family members[37] was improper because the written consent of all
concerned was still required.[38] A lawyer who acts as such in settling a
dispute cannot represent any of the parties to it.[39]
WITHDRAWAL AS COUNSEL IN CIVIL CASE NO. 97-9865
The next bone of contention was the propriety of respondents withdrawal
as counsel for Lumot A. Jalandoni in Civil Case No. 97-9865 to fulfill an
alleged retainership agreement with the spouses Jalbuena in a suit by
PRC, through Cristina Lim, against the Jalbuenas and Delfin (BC I.S. No.
99-2192). In his December 1, 2000 comment, respondent stated that it
was he who was not notified of the hiring of Atty. Alminaza as the new
counsel in that case and that he withdrew from the case with the
knowledge of Lumot A. Jalandoni and with leave of court.
The rule on termination of attorney-client relations may be summarized
as follows:
PINEDAPCGRNMAN
The relation of attorney and client may be terminated by the client, by
the lawyer or by the court, or by reason of circumstances beyond the
control of the client or the lawyer.The termination of the attorney-client
relationship entails certain duties on the part of the client and his
lawyer.[40]
Accordingly, it has been held that the right of an attorney to withdraw or
terminate the relation other than for sufficient cause is considerably
restricted. Canon 22 of the CPR reads:
Canon 22 A lawyer shall withdraw his services only for good cause and
upon notice appropriate in the circumstances.
An attorney may only retire from a case either by written consent of his
client or by permission of the court after due notice and hearing, in which
event the attorney should see to it that the name of the new lawyer is
recorded in the case.[41] A lawyer who desires to retire from an action
without the written consent of his client must file a petition for withdrawal
in court.[42] He must serve a copy of his petition upon his client and the
adverse party at least three days before the date set for hearing,
otherwise the court may treat the application as a mere scrap of
paper.[43]Respondent made no such move. He admitted that he withdrew
as counsel on April 26, 1999, which withdrawal was supposedly
approved by the court on April 28, 1999. The conformity of Mrs.
Jalandoni was only presumed by Atty. Villarosa because of the
appearance of Atty. Alminaza in court, supposedly in his place.
[A client] may discharge his attorney at any time with or without cause
and thereafter employ another lawyer who may then enter his
appearance. Thus, it has been held that a client is free to change his
counsel in a pending case and thereafter retain another lawyer to
represent him. That manner of changing a lawyer does not need the
consent of the lawyer to be dismissed. Nor does it require approval of
the court.[44]
The appearance of Atty. Alminaza in fact was not even to substitute for
respondent but to act as additional counsel.[45] Mrs. Jalandonis
conformity to having an additional lawyer did not necessarily mean
conformity to respondents desire to withdraw as counsel. Respondents
speculations on the professional relationship of Atty. Alminaza and Mrs.
Jalandoni find no support in the records of this case.
Respondent should not have presumed that his motion to withdraw as
counsel[46] would be granted by the court. Yet, he stopped appearing as
Mrs. Jalandonis counsel beginning April 28, 1999, the first hearing
date. No order from the court was shown to have actually granted his
motion for withdrawal. Only an order dated June 4, 1999 had a
semblance of granting his motion:
When this case was called for hearing Atty. Lorenzo Alminaza appeared
for the defendants considering that Atty. Nicanor Villarosa has
already withdrawn his appearance in this case which the Court
considered it to be approved as it bears the conformity of the
defendants.[47] (emphasis ours)
That Mrs. Jalandoni continued with Atty. Alminazas professional
engagement on her behalf despite respondents withdrawal did not
Page 241
absolve the latter of the consequences of his unprofessional conduct,
specially in view of the conflicting interests already discussed.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Respondent himself stated that his withdrawal from Civil Case No. 97-
9865 was due to the possibility of a conflict of interest.[48]
Be that as it may, the records do not support the claim that respondent
improperly collected P5,000 from petitioner. Undoubtedly, respondent
provided professional services to Lumot A. Jalandoni. Furthermore,
there is no evidence that the documents belonging to Mrs. Jalandoni
were deliberately withheld. The right of an attorney to retain possession
of a clients documents, money or other property which may have lawfully
come into his possession in his professional capacity, until his lawful fees
and disbursements have been fully paid, is well-established.[49]
Finally, we express our utter dismay with Lims apparent use of his wifes
community tax certificate number in his complaint for disbarment against
respondent.[50] This is not, however, the forum to discuss this lapse.
WHEREFORE, in view of the foregoing, respondent Atty. Nicanor V.
Villarosa is hereby found GUILTY of violating Canon 15 and Canon 22
of the Code of Professional Responsibility and is SUSPENDED from the
practice of law for one (1) year, effective upon receipt of this decision,
with aSTERN WARNING that a repetition of the same or similar acts will
be dealt with more severely.
Let a copy of this resolution be entered into the records of respondent
and furnished to the Office of the Clerk of Court, the Office of the Bar
Confidant, the Integrated Bar of the Philippines, and all courts in the
Philippines, for their information and guidance.
SO ORDERED.
[A.C. No. 5804. July 1, 2003]
BENEDICTO HORNILLA and ATTY. FEDERICO D.
RICAFORT, complainants, vs. ATTY. ERNESTO S.
SALUNAT, respondent.
RESOLUTION
YNARES-SANTIAGO, J.:
On November 21, 1997, Benedicto Hornilla and Federico D. Ricafort filed
an administrative complaint[1] with the Integrated Bar of the Philippines
(IBP) Commission on Bar Discipline, against respondent Atty. Ernesto S.
Salunat for illegal and unethical practice and conflict of interest. They
alleged that respondent is a member of the ASSA Law and Associates,
which was the retained counsel of the Philippine Public School Teachers
Association (PPSTA). Respondents brother, Aurelio S. Salunat, was a
member of the PPSTA Board which approved respondents engagement
as retained counsel of PPSTA.
Complainants, who are members of the PPSTA, filed an intra-corporate
case against its members of the Board of Directors for the terms 1992-
1995 and 1995-1997 before the Securities and Exchange Commission,
which was docketed as SEC Case No. 05-97-5657, and a complaint
before the Office of the Ombudsman, docketed as OMB Case No. 0-97-
0695, for unlawful spending and the undervalued sale of real property of
the PPSTA. Respondent entered his appearance as counsel for the
PPSTA Board members in the said cases.Complainants contend that
respondent was guilty of conflict of interest because he was engaged by
the PPSTA, of which complainants were members, and was being paid
out of its corporate funds where complainants have contributed. Despite
being told by PPSTA members of the said conflict of interest, respondent
refused to withdraw his appearance in the said cases.
Moreover, complainants aver that respondent violated Rule 15.06[2] of
the Code of Professional Responsibility when he appeared at the
meeting of the PPSTA Board and assured its members that he will win
the PPSTA cases.
In his Answer,[3] respondent stressed that he entered his appearance as
counsel for the PPSTA Board Members for and in behalf of the ASSA
Law and Associates. As a partner in the said law firm, he only filed a
Manifestation of Extreme Urgency in OMB Case No. 0-97-0695.[4] On the
other hand, SEC Case No. 05-97-5657 was handled by another partner
PINEDAPCGRNMAN
of the firm, Atty. Agustin V. Agustin. Respondent claims that it was
complainant Atty. Ricafort who instigated, orchestrated and
indiscriminately filed the said cases against members of the PPSTA and
its Board.
Respondent pointed out that his relationship to Aurelio S. Salunat was
immaterial; and that when he entered into the retainer contract with the
PPSTA Board, he did so, not in his individual capacity, but in
representation of the ASSA Law Firm. He denied that he ensured the
victory of the PPSTA Board in the case he was handling. He merely
assured the Board that the truth will come out and that the case before
the Ombudsman will be dismissed for lack of jurisdiction, considering
that respondents therein are not public officials, but private
employees.Anent the SEC case, respondent alleged that the same was
being handled by the law firm of Atty. Eduardo de Mesa, and not ASSA.
By way of Special and Affirmative Defenses, respondent averred that
complainant Atty. Ricafort was himself guilty of gross violation of his oath
of office amounting to gross misconduct, malpractice and unethical
conduct for filing trumped-up charges against him and Atty. De
Mesa. Thus, he prayed that the complaint against him be dismissed and,
instead, complainant Ricafort be disciplined or disbarred.
The complainant was docketed as CBD Case No. 97-531 and referred
to the IBP Commission on Bar Discipline. After investigation,
Commissioner Lydia A. Navarro recommended that respondent be
suspended from the practice of law for six (6) months. The Board of
Governors thereafter adopted Resolution No. XV-3003-230 dated June
29, 2002, approving the report and recommendation of the Investigating
Commissioner.
Respondent filed with this Court a Motion for Reconsideration of the
above Resolution of the IBP Board of Governors.
The pertinent rule of the Code of Professional Responsibility provides:
RULE 15.03. A lawyer shall not represent conflicting interests except by
written consent of all concerned given after a full disclosure of the facts.
There is conflict of interest when a lawyer represents inconsistent
interests of two or more opposing parties. The test is whether or not in
behalf of one client, it is the lawyers duty to fight for an issue or claim,
but it is his duty to oppose it for the other client. In brief, if he argues for
one client, this argument will be opposed by him when he argues for the
other client.[5]This rule covers not only cases in which confidential
communications have been confided, but also those in which no
confidence has been bestowed or will be used.[6] Also, there is conflict of
interests if the acceptance of the new retainer will require the attorney to
perform an act which will injuriously affect his first client in any matter in
which he represents him and also whether he will be called upon in his
new relation to use against his first client any knowledge acquired
through their connection.[7] Another test of the inconsistency of interests
is whether the acceptance of a new relation will prevent an attorney from
the full discharge of his duty of undivided fidelity and loyalty to his client
or invite suspicion of unfaithfulness or double dealing in the performance
thereof.[8]
In this jurisdiction, a corporations board of directors is understood to be
that body which (1) exercises all powers provided for under the
Corporation Code; (2) conducts all business of the corporation; and (3)
controls and holds all property of the corporation. [9] Its members have
been characterized as trustees or directors clothed with a fiduciary
character.[10] It is clearly separate and distinct from the corporate entity
itself.
Where corporate directors have committed a breach of trust either by
their frauds, ultra vires acts, or negligence, and the corporation is unable
or unwilling to institute suit to remedy the wrong, a stockholder may sue
on behalf of himself and other stockholders and for the benefit of the
corporation, to bring about a redress of the wrong done directly to the
corporation and indirectly to the stockholders.[11] This is what is known
as a derivative suit, and settled is the doctrine that in a derivative suit,
the corporation is the real party in interest while the stockholder filing suit
Page 242
for the corporations behalf is only nominal party. The corporation should
be included as a party in the suit.[12]
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Having thus laid a suitable foundation of the basic legal principles
pertaining to derivative suits, we come now to the threshold question:
can a lawyer engaged by a corporation defend members of the board of
the same corporation in a derivative suit? On this issue, the following
disquisition is enlightening:
The possibility for conflict of interest here is universally
recognized. Although early cases found joint representation permissible
where no conflict of interest was obvious, the emerging rule is against
dual representation in all derivative actions. Outside counsel must thus
be retained to represent one of the defendants. The cases and ethics
opinions differ on whether there must be separate representation from
the outset or merely from the time the corporation seeks to take an active
role. Furthermore, this restriction on dual representation should not be
waivable by consent in the usual way; the corporation should be
presumptively incapable of giving valid consent.[13] (underscoring ours)
In other jurisdictions, the prevailing rule is that a situation wherein a
lawyer represents both the corporation and its assailed directors
unavoidably gives rise to a conflict of interest. The interest of the
corporate client is paramount and should not be influenced by any
interest of the individual corporate officials.[14] The rulings in these cases
have persuasive effect upon us.After due deliberation on the wisdom of
this doctrine, we are sufficiently convinced that a lawyer engaged as
counsel for a corporation cannot represent members of the same
corporations board of directors in a derivative suit brought against
them. To do so would be tantamount to representing conflicting interests,
which is prohibited by the Code of Professional Responsibility.
In the case at bar, the records show that SEC Case No. 05-97-5657,
entitled Philippine Public School Teachers Assn., Inc., et al. v. 1992-
1995 Board of Directors of the Philippine Public School Teachers Assn.
(PPSTA), et al., was filed by the PPSTA against its own Board of
Directors. Respondent admits that the ASSA Law Firm, of which he is
the Managing Partner, was the retained counsel of PPSTA. Yet, he
appeared as counsel of record for the respondent Board of Directors in
the said case. Clearly, respondent was guilty of conflict of interest when
he represented the parties against whom his other client, the PPSTA,
filed suit.
In his Answer, respondent argues that he only represented the Board of
Directors in OMB Case No. 0-97-0695. In the said case, he filed a
Manifestation of Extreme Urgency wherein he prayed for the dismissal
of the complaint against his clients, the individual Board Members. By
filing the said pleading, he necessarily entered his appearance
therein.[15] Again, this constituted conflict of interests, considering that
the complaint in the Ombudsman, albeit in the name of the individual
members of the PPSTA, was brought in behalf of and to protect the
interest of the corporation.
Therefore, respondent is guilty of representing conflicting
interests. Considering however, that this is his first offense, we find the
penalty of suspension, recommended in IBP Resolution No. XV-2002-
230 dated June 29, 2002, to be too harsh. Instead, we resolve to
admonish respondent to observe a higher degree of fidelity in the
practice of his profession.
ACCORDINGLY, respondent Atty. Ernesto Salunat is found GUILTY of
representing conflicting interests and is ADMONISHED to observe a
higher degree of fidelity in the practice of his profession. He is further
WARNED that a repetition of the same or similar acts will be dealt with
more severely.
SO ORDERED.
LETICIA GONZALES, A.C. No. 6836
Complainant,
Present:
PANGANIBAN, C.J., Chairman,
YNARES-SANTIAGO,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, and
PINEDAPCGRNMAN
CHICO-NAZARIO, JJ.
Promulgated:
ATTY. MARCELINO
CABUCANA,
Respondent. January 23, 2006
x---------------------------------------------------
--------x
RESOLUTION
AUSTRIA-MARTINEZ, J.:
Before this Court is a complaint filed by Leticia Gonzales (Gonzales)
praying that Atty. Marcelino Cabucana, (respondent) be disbarred for
representing conflicting interests.
On January 8, 2004, Gonzales filed a petition before the Integrated Bar
of the Philippines (IBP) alleging that: she was the complainant in a case
for sum of money and damages filed before the Municipal Trial Court in
Cities (MTCC) of Santiago City, docketed as Civil Case No. 1-567 where
she was represented by the law firm CABUCANA, CABUCANA, DE
GUZMAN AND CABUCANA LAW OFFICE, with Atty. Edmar Cabucana
handling the case and herein respondent as an associate/partner; on
February 26, 2001, a decision was rendered in the civil case ordering the
losing party to pay Gonzales the amount of P17,310.00 with interest
and P6,000.00 as attorneys fees; Sheriff Romeo Gatcheco, failed to fully
implement the writ of execution issued in connection with the judgment
which prompted Gonzales to file a complaint against the said sheriff with
this Court; in September 2003, Sheriff Gatcheco and his wife went to the
house of Gonzales; they harassed Gonzales and asked her to execute
an affidavit of desistance regarding her complaint before this Court;
Gonzales thereafter filed against the Gatchecos criminal cases for
trespass, grave threats, grave oral defamation, simple coercion and
unjust vexation; notwithstanding the pendency of Civil Case No. 1-567,
where respondents law firm was still representing Gonzales, herein
respondent represented the Gatchecos in the cases filed by Gonzales
against the said spouses; respondent should be disbarred from the
practice of law since respondents acceptance of the cases of the
Gatchecos violates the lawyer-client relationship between complainant
and respondents law firm and renders respondent liable under the Code
of Professional Responsibility (CPR) particularly Rules
10.01,[1] 13.01,[2] 15.02,[3] 15.03,[4] 21.01[5] and 21.02.[6]
On January 9, 2004, the IBP-Commission on Bar Discipline ordered Atty.
Marcelino Cabucana, Jr. to submit his Answer to the complaint.[7]
In his Answer, respondent averred: He never appeared and represented
complainant in Civil Case No. 1-567 since it was his brother, Atty. Edmar
Cabucana who appeared and represented Gonzales in said case. He
admitted that he is representing Sheriff Gatcheco and his wife in the
cases filed against them but claimed that his appearance is pro bonoand
that the spouses pleaded with him as no other counsel was willing to take
their case. He entered his appearance in good faith and opted to
represent the spouses rather than leave them defenseless. When the
Gatchecos asked for his assistance, the spouses said that the cases filed
against them by Gonzales were merely instigated by a high ranking
official who wanted to get even with them for their refusal to testify in
favor of the said official in another case. At first, respondent declined to
serve as counsel of the spouses as he too did not want to incur the ire of
Page 243
the high-ranking official, but after realizing that he would be abdicating a
sworn duty to delay no man for money or malice, respondent entered his
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
appearance as defense counsel of the spouses free of any charge. Not
long after, the present complaint was crafted against respondent which
shows that respondent is now the subject of a demolition job. The civil
case filed by Gonzales where respondents brother served as counsel is
different and distinct from the criminal cases filed by complainant against
the Gatcheco spouses, thus, he did not violate any canon on legal
ethics. [8]
Gonzales filed a Reply contending that the civil case handled by
respondents brother is closely connected with the cases of the
Gatchecos which the respondent is handling; that the claim of
respondent that he is handling the cases of the spouses pro bono is not
true since he has his own agenda in offering his services to the spouses;
and that the allegation that she is filing the cases against the spouses
because she is being used by a powerful person is not true since she
filed the said cases out of her own free will.[9]
The Commission on Bar Discipline of the IBP sent to the parties a Notice
of Mandatory Conference dated March 1, 2004.[10] On the scheduled
conference, only a representative of complainant
appeared.[11] Commissioner Demaree Raval of the IBP-CBD then
directed both parties to file their respective verified position papers.[12]
Complainant filed a Memorandum reiterating her earlier assertions and
added that respondent prepared and notarized counter-affidavits of the
Gatcheco spouses; that the high-ranking official referred to by
respondent is Judge Ruben Plata and the accusations of respondent
against the said judge is an attack against a brother in the profession
which is a violation of the CPR; and that respondent continues to use the
name of De Guzman in their law firm despite the fact that said partner
has already been appointed as Assistant Prosecutor of Santiago City,
again in violation of the CPR.[13]
Respondent filed his Position Paper restating his allegations in his
Answer.[14]
On August 23, 2004, Commissioner Wilfredo E.J.E. Reyes issued an
Order notifying both parties to appear before his office on October 28,
2004 for a clarificatory question regarding said case.[15] On the said date,
only respondent appeared[16] presenting a sworn affidavit executed by
Gonzales withdrawing her complaint against respondent. It reads:
SINUMPAANG SALAYSAY
TUNGKOL SA PAG-UURONG NG DEMANDA
Ako, si LETICIA GONZALES, nasa tamang edad, Pilipino, may asawa,
at nakatira sa Barangay Dubinan East, Santiago City, makaraang
manumpa ayon sa batas ay nagsasabing:
Ako ang nagdedemanda o petitioner sa CBD Case No. 04-1186 na may
pamagat na Leticia Gonzales versus Atty. Marcelino C. Cabucana, Jr. na
kasalukuyang nahaharap sa Commission on Bar
Discipline ng Integrated Bar of the Philippines
Ang pagkakahain ng naturang demanda ay nag-ugat sa di-
pagkakaintindihan na namamagitan sa akin at nina Mr. and Mrs. Romeo
and Anita Gatcheco.
Dahil sa aking galit sa naturang mag-asawa, idinawit ko si Atty.
Marcelino C. Cabucana, Jr. sa sigalot na namamagitan sa akin at sa
mag-asawang Gatcheco, gayong nalalaman ko na si Atty. Marcelino C.
Cabucana ay walang nalalaman sa naturang di pagkakaintindihan.
Makaraang pag-isipang mabuti ang paghain ko ng demanda kontra
kay Atty. Marcelino C. Cabucana, Jr., nakumbinsi ako na ang
pagdedemanda ko kay Atty. Marcelino C. Cabucana, Jr. ay isang
malaking pagkakamali dahil siya ay walang kinalalaman (sic) sa di
pagkakaintindihan naming(sic) ng mag-asawang Gatcheco.
PINEDAPCGRNMAN
Si Atty. Marcelino C. Cabucana, Jr. ay di ko rin naging abogado sa Civil
Case No. 1-567 (MTCC Br. I Santiago City) na inihain ko kontra
kay Eduardo Mangano.
Nais kong ituwid ang lahat kung kayat aking iniuurong ang naturang
kasong inihain ko kontra kay Atty. Marcelino C. Cabucana, Jr. at dahil
dito ay hindi na ako interesado pang ituloy and naturang kaso, at aking
hinihiling sa kinauukulan na dismisin na ang naturang kaso.
Ginawa ko ang sinumpaang salaysay na ito upang patotohanan sa lahat
ng nakasaad dito.[17]
Commissioner Reyes issued an Order dated October 28, 2004 requiring
Gonzales to appear before him on November 25, 2004, to affirm her
statements and to be subject to clarificatory questioning.[18] However,
none of the parties appeared.[19] On February 17, 2005, only respondent
was present. Commissioner Reyes then considered the case as
submitted for resolution.[20]
On February 24, 2005, Commissioner Reyes submitted his Report and
Recommendation, portions of which are quoted hereunder:
The Undersigned Commissioner believes that the respondent made a
mistake in the acceptance of the administrative case of Romeo
Gatcheco, however, the Commission (sic) believes that there was no
malice and bad faith in the said acceptance and this can be shown by
the move of the complainant to unilaterally withdraw the case which she
filed against Atty. Marcelino C. Cabucana, Jr. However, Atty. Cabucana
is reminded to be more careful in the acceptance of cases as conflict of
interests might arise.
It is respectfully recommended that Atty. Marcelino C. Cabucana, Jr. (be)
sternly warned and reprimanded andadvised to be more circumspect
and careful in accepting cases which might result in conflict of
interests.[21]
On June 25, 2005, a Resolution was passed by the Board of Governors
of the IBP, to wit:
RESOLUTION NO. XVI-2005-153
CBD CASE NO. 03-1186
Leticia Gonzales vs.
Atty. Marcelino Cabucana, Jr.
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, the Report and Recommendation of the Investigating
Commissioner of the above-entitled case, herein made part of this
Resolution as Annex A; and, finding the recommendation fully supported
by the evidence on record and the applicable laws and rules, and
considering that respondent made (a) mistake in the acceptance of the
administrative case of Romeo Gatcheco, Atty. Marcelino Cabucana, Jr.
is hereby WARNED and REPRIMANDED and advised to be more
circumspect and careful in accepting cases which might result in conflict
of interests.[22]
Before going to the merits, let it be clarified that contrary to the report of
Commissioner Reyes, respondent did not only represent the Gatcheco
spouses in the administrative case filed by Gonzales against them. As
respondent himself narrated in his Position Paper, he likewise acted as
their counsel in the criminal cases filed by Gonzales against them.[23]
With that settled, we find respondent guilty of violating Rule 15.03 of
Canon 15 of the Code of Professional Responsibility, to wit:
Rule 15.03 A lawyer shall not represent conflicting interest except by
written consent of all concerned given after a full disclosure of the facts.
Page 244
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
It is well-settled that a lawyer is barred from representing conflicting
interests except by written consent of all concerned given after a full
disclosure of the facts.[24] Such prohibition is founded on principles of
public policy and good taste as the nature of the lawyer-client relations
is one of trust and confidence of the highest degree. [25] Lawyers are
expected not only to keep inviolate the clients confidence, but also to
avoid the appearance of treachery and double-dealing for only then can
litigants be encouraged to entrust their secrets to their lawyers, which is
of paramount importance in the administration of justice.[26]
One of the tests of inconsistency of interests is whether the acceptance
of a new relation would prevent the full discharge of the lawyers duty of
undivided fidelity and loyalty to the client or invite suspicion of
unfaithfulness or double-dealing in the performance of that duty.[27]
As we expounded in the recent case of Quiambao vs. Bamba,[28]
The proscription against representation of conflicting interests applies to
a situation where the opposing parties are present clients in the same
action or in an unrelated action. It is of no moment that the lawyer would
not be called upon to contend for one client that which the lawyer has to
oppose for the other client, or that there would be no occasion to use the
confidential information acquired from one to the disadvantage of the
other as the two actions are wholly unrelated. It is enough that the
opposing parties in one case, one of whom would lose the suit, are
present clients and the nature or conditions of the lawyers respective
retainers with each of them would affect the performance of the duty of
undivided fidelity to both clients.[29]
The claim of respondent that there is no conflict of interests in this case,
as the civil case handled by their law firm where Gonzales is the
complainant and the criminal cases filed by Gonzales against the
Gatcheco spouses are not related, has no merit. The representation of
opposing clients in said cases, though unrelated, constitutes conflict of
interests or, at the very least, invites suspicion of double-dealing which
this Court cannot allow.[30]
Respondent further argued that it was his brother who represented
Gonzales in the civil case and not him, thus, there could be no conflict of
interests. We do not agree. As respondent admitted, it was their law firm
which represented Gonzales in the civil case. Such being the case, the
rule against representing conflicting interests applies.
As we explained in the case of Hilado vs. David:[31]
[W]e can not sanction his taking up the cause of the adversary of the
party who had sought and obtained legal advice from his firm; this, not
necessarily to prevent any injustice to the plaintiff but to keep above
reproach the honor and integrity of the courts and of the bar. Without
condemning the respondents conduct as dishonest, corrupt, or
fraudulent, we do believe that upon the admitted facts it is highly
inexpedient. It had the tendency to bring the profession, of which he is a
distinguished member, into public disrepute and suspicion and
undermine the integrity of justice.[32]
The claim of respondent that he acted in good faith and with honest
intention will also not exculpate him as such claim does not render the
prohibition inoperative.[33]
In the same manner, his claim that he could not turn down the spouses
as no other lawyer is willing to take their case cannot prosper as it is
settled that while there may be instances where lawyers cannot decline
representation they cannot be made to labor under conflict of interest
between a present client and a prospective one.[34] Granting also that
there really was no other lawyer who could handle the spouses case
other than him, still he should have observed the requirements laid down
by the rules by conferring with the prospective client to ascertain as soon
as practicable whether the matter would involve a conflict with another
client then seek the written consent of all concerned after a full disclosure
PINEDAPCGRNMAN
of the facts.[35] These respondent failed to do thus exposing himself to
the charge of double-dealing.
We note the affidavit of desistance filed by Gonzales. However, we are
not bound by such desistance as the present case involves public
interest.[36] Indeed, the Courts exercise of its power to take cognizance
of administrative cases against lawyers is not for the purpose of
enforcing civil remedies between parties, but to protect the court and the
public against an attorney guilty of unworthy practices in his
profession.[37]
In similar cases where the respondent was found guilty of representing
conflicting interests a penalty ranging from one to three years
suspension was imposed.[38]
We shall consider however as mitigating circumstances the fact that he
is representing the Gatcheco spouses pro bono and that it was his firm
and not respondent personally, which handled the civil case of Gonzales.
As recounted by complainant herself, Atty. Edmar Cabucana signed the
civil case of complainant by stating first the name of the law firm
CABUCANA, CABUCANA, DE GUZMAN AND CABUCANA LAW
OFFICE, under which, his name and signature appear; while herein
respondent signed the pleadings for the Gatcheco spouses only with his
name,[39] without any mention of the law firm. We also note the
observation of the IBP Commissioner Reyes that there was no malice
and bad faith in respondents acceptance of the Gatchecos cases as
shown by the move of complainant to withdraw the case.
Thus, for violation of Rule 15.03, Canon 15 of the Code of Professional
Responsibility and taking into consideration the aforementioned
mitigating circumstances, we impose the penalty of fine of P2,000.00.
WHEREFORE, Resolution No. XVI-2005-153 of the Integrated Bar of the
Philippines is APPROVED with MODIFICATION that respondent Atty.
Marcelino Cabucana, Jr. isFINED the amount of Two Thousand Pesos
(P2,000.00) with a STERN WARNING that a commission of the same or
similar act in the future shall be dealt with more severely.
SO ORDERED.
[A.C. No. 5580. June 15, 2005]
SAN JOSE HOMEOWNERS ASSOCIATION INC., as represented by
REBECCA V. LABRADOR, complainant, vs. ATTY. ROBERTO B.
ROMANILLOS,respondent.
DECISION
PER CURIAM:
This is a Petition[1] for disbarment against Atty. Roberto B. Romanillos
for allegedly representing conflicting interests and for using the title
Judge despite having been found guilty of grave and serious misconduct
in Zarate v. Judge Romanillos.[2]
The facts are as follows:
In 1985, respondent represented San Jose Homeowners Association,
Inc. (SJHAI) before the Human Settlements Regulation Commission
(HSRC) in a case[3] against Durano and Corp., Inc. (DCI) for violation of
the Subdivision and Condominium Buyers Protection Act (P.D. No. 957).
SJHAI alleged that Lot No. 224 was designated as a school site in the
subdivision plan that DCI submitted to the Bureau of Lands in 1961 but
was sold by DCI to spouses Ramon and Beatriz Durano without
disclosing it as a school site.
While still the counsel for SJHAI, respondent represented Myrna and
Antonio Montealegre in requesting for SJHAIs conformity to construct a
school building on Lot No. 224 to be purchased from Durano.
When the request was denied, respondent applied for clearance before
the Housing and Land Use Regulatory Board (HLURB) in behalf of
Page 245
Montealegre. Petitioners Board of Directors terminated respondents
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
services as counsel and engaged another lawyer to represent the
association.
Respondent also acted as counsel for Lydia Durano-Rodriguez who
substituted for DCI in Civil Case No. 18014 entitled San Jose
Homeowners, Inc. v. Durano and Corp., Inc. filed before the Regional
Trial Court of Makati City, Branch 134. Thus, SJHAI filed a disbarment
case against respondent for representing conflicting interests, docketed
as Administrative Case No. 4783.
In her Report[4] dated August 3, 1998, Investigating Commissioner Lydia
A. Navarro of the Commission on Bar Discipline of the Integrated Bar of
the Philippines (IBP) made the following findings:
Respondent failed to observe candor and fairness in dealing with his
clients, knowing fully well that the Montealegre case was adverse to the
Complainant wherein he had previously been not only an active board
member but its corporate secretary having access to all its documents
confidential or otherwise and its counsel in handling the implementation
of the writ of execution against its developer and owner, Durano and Co.
Inc.
Moreso, when Respondent acted as counsel for the substituted
defendant Durano and Co. Inc., Lydia Durano-Rodriguez; the conflict of
interest between the latter and the Complainant became so revealing
and yet Respondent proceeded to represent the former.
For his defense of good faith in doing so; inasmuch as the same wasnt
controverted by the Complainant which was his first offense; Respondent
must be given the benefit of the doubt to rectify his error subject to the
condition that should he commit the same in the future; severe penalty
will be imposed upon him.[5]
The Investigating Commissioner recommended dismissal of the
complaint with the admonition that respondent should observe extra care
and diligence in the practice of his profession to uphold its dignity and
integrity beyond reproach.
The IBP Board of Governors adopted and approved the report and
recommendation of the Investigating Commissioner, which we noted in
a resolution dated March 8, 1999.
Notwithstanding the admonition, respondent continued representing
Lydia Durano-Rodriguez before the Court of Appeals[6] and this
Court[7] and even moved for the execution of the decision.
Thus, a second disbarment case was filed against respondent for
violation of the March 8, 1999 Resolution in A.C. No. 4783 and for his
alleged deceitful conduct in using the title Judge although he was found
guilty of grave and serious misconduct.
Respondent used the title Judge in his office letterhead,
correspondences and billboards which was erected in several areas
within the San Jose Subdivision sometime in October 2001.
In his Comment and Explanation,[8] respondent claimed that he
continued to represent Lydia Durano-Rodriguez against petitioner
despite the March 8, 1999 Resolution because it was still pending when
the second disbarment case was filed. He maintained that the instant
petition is a rehash of the first disbarment case from which he was
exonerated. Concerning the title Judge, respondent stated that since the
filing of the instant petition he had ceased to attach the title to his name.
On July 7, 2003, the matter was referred to the IBP for investigation,
report and recommendation.[9]
Investigating Commissioner Leland R. Villadolid, Jr. reported that
respondent did not violate the admonition because it referred to future
cases only and not to cases subject of A.C. No. 4783. Besides, petitioner
never questioned the propriety of respondents continued representation
of Lydia Durano-Rodriguez on appeal until the case was terminated.
The Investigating Commissioner, however, believed that respondent was
deceitful when he used the title Judge, thus creating a false impression
that he was an incumbent.
The Investigating Commissioner recommended thus:
In view of the foregoing considerations, this Commissioner respectfully
recommends the following penalty range to be deliberated upon by the
Board for imposition on Respondent: minimum penalty of reprimand to a
maximum penalty of four (4) months suspension. It is further
PINEDAPCGRNMAN
recommended that in addition to the penalty to be imposed, a stern
warning be given to Respondent in that should he violate his
undertaking/promise not to handle any case in the future where the
Complainant would be the adverse party and/or should he again use the
title of Judge which would create an impression that he is still connected
to the judiciary, a more severe penalty shall be imposed on him by the
Commission.
RESPECTFULLY SUBMITTED.
The IBP Board of Governors approved with modification the report and
recommendation of the Investigating Commissioner, thus:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, with modification, the Report and Recommendation of
the Investigating Commissioner of the above-entitled case, herein made
part of this Resolution as Annex A, and, finding the recommendation fully
supported by the evidence on record and the applicable laws and rules,
and considering Respondents violation of Rule 1.01 and Rule 3.01 of the
Code of Professional Responsibility, Atty. Roberto Romanillos is hereby
SUSPENDED from the practice of law for six (6) months with a
WARNING that should he violate his undertaking/promise a more severe
penalty shall be imposed against him.
Undoubtedly, respondent represented the inconsistent interests of
SJHAI, DCI as substituted by Lydia Durano-Rodriguez and the
Montealegres. Respondent was admonished yet he continued to
represent Durano-Rodriguez against SJHAI.
It is inconsequential that petitioner never questioned the propriety of
respondents continued representation of Lydia Durano-Rodriguez. The
lack of opposition does not mean tacit consent. As long as the lawyer
represents inconsistent interests of two (2) or more opposing clients, he
is guilty of violating his oath. Rule 15.03 of the Code of Professional
Responsibility specifically mandates that a lawyer shall not represent
conflicting interests except by written consent of all concerned given after
a full disclosure. Incidentally, it is also misleading for respondent to insist
that he was exonerated in A.C. No. 4783.
We agree with the IBP that respondents continued use of the title Judge
violated Rules 1.01 and 3.01 of the Code of Professional Responsibility
prohibiting a lawyer from engaging in deceitful conduct and from using
any misleading statement or claim regarding qualifications or legal
services. The quasi-judicial notice he posted in the billboards referring to
himself as a judge is deceiving. It was a clear attempt to mislead the
public into believing that the order was issued in his capacity as a judge
when he was dishonorably stripped of the privilege.
Respondent did not honorably retire from the judiciary. He resigned from
being a judge during the pendency of Zarate v. Judge Romanillos, where
he was eventually found guilty of grave and serious misconduct and
would have been dismissed from the service had he not resigned.
In that case, respondent was found guilty of illegal solicitation and receipt
of P10,000.00 from a party litigant. We ruled thus:
Considering the foregoing, respondent Judge Roberto B. Romanillos is
hereby found guilty of grave and serious misconduct affecting his
integrity and honesty. He deserves the supreme penalty of dismissal.
However, respondent, in an obvious attempt to escape punishment for
his misdeeds, tendered his resignation during the pendency of this case.
Consequently, we are now precluded from dismissing respondent from
the service. Nevertheless, the ruling in People v. Valenzuela (135 SCRA
712 [1985]), wherein the respondent judge likewise resigned before the
case could be resolved, finds application in this case. Therein it was held
that the rule that the resignation or retirement of a respondent judge in
an administrative case renders the case moot and academic, is not a
hard and fast rule.
ACCORDINGLY, in view of our aforestated finding that respondent
Judge Romanillos is guilty of grave and serious misconduct which would
have warranted his dismissal from the service had he not resigned during
the pendency of this case, and it appearing that respondent has yet to
apply for his retirement benefits and other privileges if any; the Court,
Page 246
consistent with the penalties imposed in Valenzuela (supra.), hereby
orders the FORFEITURE of all leave and retirement benefits and
Intelligentia et Scientia Semper Mea
LEGAL ETHICS PINEDAPCGRNMAN
privileges to which herein respondent Judge Romanillos may be entitled Integrated Bar of the Philippines, and on the Office of the Court
WITH PREJUDICE to reinstatement and/or reemployment in any branch Administrator for circulation to all courts in the country.
or instrumentality of government, including government-owned or SO ORDERED.
controlled agencies or corporations.
SO ORDERED.[10] Rule 15.02 A lawyer shall be bound by the rule on privilege
The penalty imposed upon him in said case included forfeiture of all leave communication in respect of matters disclosed to him by a
and retirement benefits and privileges to which he may be entitled with prospective client.
prejudice to reinstatement and/or reemployment in any branch or
instrumentality of government, including government-owned or Rule on Revealing Clients Identity
controlled agencies or corporations. Certainly, the use of the title Judge General Rule: A lawyer may not invoke privilege
is one of suchprivileges. communication to refuse revealing a clients
We have previously declared that the use of titles such as Justice is identity. (Regala vs. Sandiganbayan, 262 SCRA 122,
reserved to incumbent and retired members of the Supreme Court, the September 20, 1996)
Court of Appeals and the Sandiganbayan and may not be used by any Exceptions:
other official of the Republic, including those given the rank of 1. When by divulging such identity, it would implicate the
Justice.[11] By analogy, the title Judge should be reserved only to judges, client to that same controversy for which the lawyers
incumbent and retired, and not to those who were dishonorably services were required.
discharged from the service. As correctly pointed out by the Investigating 2. It would open client to civil liability
Commissioner, the right to retain and use said title applies only to the 3. The disclosure of such identity will provide for the only
aforementioned members of the bench and no other, and certainly not to link in order to convict the accused, otherwise, the
those who were removed or dismissed from the judiciary, such as government has no case.
respondent. Requisites of Privileged Communication:
Membership in the legal profession is a special privilege burdened with 1. Atty.-client relationship (or a kind of consultancy
conditions.[12] It is bestowed upon individuals who are not only learned in relationship with a prospective client
law, but also known to possess good moral character.[13] Lawyers should 2. Communication made by client to lawyer in the course of
act and comport themselves with honesty and integrity in a manner lawyers professional employment
beyond reproach, in order to promote the publics faith in the legal 3. Communication is intended to be confidential (see Rule
profession.[14] 130, Sec. 21(b), Rules of Court)
To say that lawyers must at all times uphold and respect the law is to
When communication is not privileged:
state the obvious, but such statement can never be overemphasized.
1. after pleading has been filed
Considering that, of all classes and professions, [lawyers are] most
2. communication intended by the client to be sent to a third
sacredly bound to uphold the law, it is imperative that they live by the
person through his counsel (it loses its confidential
law. Accordingly, lawyers who violate their oath and engage in deceitful
character as soon as it reaches the hands of third
conduct have no place in the legal profession.[15]
person)
Disbarment is the most severe form of disciplinary sanction. We are
mindful that the power to disbar must always be exercised with great Even if the communication is unprivileged, the rule of
caution, for only the most imperative reasons,[16] and in clear cases of ethics prohibits him from voluntarily revealing or using
misconduct affecting the standing and moral character of the lawyer as to his benefit or to that of a third person, to the
an officer of the court and as a member of the bar.[17] disadvantage of the client, the said communication
This is not respondents first infraction as an officer of the court and a unless the client consents thereto.
member of the legal profession. He was stripped of his retirement This is applicable to students under the Student Practice
benefits and other privileges in Zarate v. Judge Romanillos.[18] In A.C. Law Program
No. 4783, he got off lightly with just an admonition. Considering his
previous infractions, respondent should have adhered to the tenets of his RAMOS VS ATTY IMBANG (SUPRA)
profession with extra fervor and vigilance. He did not. On the contrary,
he manifested undue disrespect to our mandate and exhibited a MA. LUISA HADJULA, A.C. No. 6711
propensity to violate the laws. He is thus unfit to discharge the duties of Complainant, Present:
his office and unworthy of the trust and confidence reposed on him as an
officer of the court. His disbarment is consequently warranted. PUNO, C.J., Chairperson,
*SANDOVAL-GUTIERREZ,
Section 27, Rule 138 of the Revised Rules of Court provides:
SEC. 27. Disbarment or suspension of attorneys by Supreme Court; CORONA,
grounds therefor. A member of the bar may be disbarred or suspended - versus - AZCUNA, and
from his office as attorney by the Supreme Court for any deceit, GARCIA, JJ.
malpractice, or other gross misconduct in such office, grossly immoral
conduct, or by reason of his conviction of a crime involving moral Promulgated:
turpitude, or for any violation of the oath which he is required to take
before admission to practice, or for a wilful disobedience of any lawful ATTY. ROCELES F. July 3, 2007
order of a superior court, or for corruptly or wilfully appearing as an MADIANDA,
attorney for a party to a case without authority so to do. The practice of Respondent.
soliciting cases at law for the purpose of gain, either personally or
through paid agents or brokers, constitutes malpractice. x------------------------------------------------------------------------------------x
WHEREFORE, respondent Atty. Roberto B. Romanillos is
DISBARRED and his name is ORDERED STRICKEN from the Roll of
Attorneys. Let a copy of this Decision be entered in respondents record DECISION
Page 247

as a member of the Bar, and notice of the same be served on the

GARCIA, J.:

Intelligentia et Scientia Semper Mea

LEGAL ETHICS
Under consideration is Resolution No. XVI-2004-472 of the Board of
Governors, Integrated Bar of the Philippines (IBP), relative to the
complaint for disbarment filed by herein complainant Ma. Luisa Hadjula
against respondent Atty. Roceles F. Madianda.
The case started when, in an AFFIDAVIT-COMPLAINT[1] bearing
date September 7, 2002 and filed with the IBP Commission on Bar
Discipline, complainant charged Atty. Roceles F. Madianda with violation
of Article 209[2] of the Revised Penal Code and Canon Nos. 15.02 and
21.02 of the Code of Professional Responsibility.
In said affidavit-complaint, complainant alleged that she and respondent
used to be friends as they both worked at the Bureau of Fire Protection
(BFP) whereat respondent was the Chief Legal Officer while she was the
Chief Nurse of the Medical, Dental and Nursing Services. Complainant
claimed that, sometime in 1998, she approached respondent for some
legal advice. Complainant further alleged that, in the course of their
conversation which was supposed to be kept confidential, she disclosed
personal secrets and produced copies of a marriage contract, a birth
certificate and a baptismal certificate, only to be informed later by the
respondent that she (respondent) would refer the matter to a lawyer
friend. It was malicious, so complainant states, of respondent to have
refused handling her case only after she had already heard her secrets.
Continuing, complainant averred that her friendship with respondent
soured after her filing, in the later part of 2000, of criminal and disciplinary
actions against the latter. What, per complainants account, precipitated
the filing was when respondent, then a member of the BFP promotion
board, demanded a cellular phone in exchange for the complainants
promotion.
According to complainant, respondent, in retaliation to the filing of the
aforesaid actions, filed a COUNTER COMPLAINT[3] with the
Ombudsman charging her (complainant)with violation of Section 3(a) of
Republic Act No. 3019,[4] falsification of public documents and
immorality, the last two charges being based on the disclosures
complainant earlier made to respondent. And also on the basis of the
same disclosures, complainant further stated, a disciplinary case was
also instituted against her before the Professional Regulation
Commission.
Complainant seeks the suspension and/or disbarment of respondent for
the latters act of disclosing personal secrets and confidential information
she revealed in the course of seeking respondents legal advice.
In an order dated October 2, 2002, the IBP Commission on Bar Discipline
required respondent to file her answer to the complaint.
In her answer, styled as COUNTER-AFFIDAVIT,[5] respondent denied
giving legal advice to the complainant and dismissed any suggestion
about the existence of a lawyer-client relationship between them.
Respondent also stated the observation that the supposed confidential
data and sensitive documents adverted to are in fact matters of common
knowledge in the BFP. The relevant portions of the answer read:
5. I specifically deny the allegation of F/SUPT. MA. LUISA C. HADJULA
in paragraph 4 of her AFFIDAVIT-COMPLAINT for reason that she never
WAS MY CLIENT nor we ever had any LAWYER-CLIENT
RELATIONSHIP that ever existed ever since and that never obtained
any legal advice from me regarding her PERSONAL PROBLEMS or
PERSONAL SECRETS. She likewise never delivered to me legal
documents much more told me some confidential information or
secrets. That is because I never entertain LEGAL QUERIES or
CONSULTATION regarding PERSONAL MATTERS since I know as a
PINEDAPCGRNMAN
LAWYER of the Bureau of Fire Protection that I am not allowed to
privately practice law and it might also result to CONFLICT OF
INTEREST. As a matter of fact, whenever there will be PERSONAL
MATTERS referred to me, I just referred them to private law practitioners
and never entertain the same, NOR listen to their stories or examine or
accept any document.
9. I specifically deny the allegation of F/SUPT. MA. LUISA C. HADJULA
in paragraph 8 of her AFFIDAVIT-COMPLAINT, the truth of the matter is
that her ILLICIT RELATIONSHIP and her illegal and unlawful activities
are known in the Bureau of Fire Protection since she also filed CHILD
SUPPORT case against her lover where she has a child .
Moreover, the alleged DOCUMENTS she purportedly have shown to me
sometime in 1998, are all part of public records .
Furthermore, F/SUPT. MA. LUISA C. HADJULA, is filing the instant case
just to get even with me or to force me to settle and withdraw the CASES
I FILED AGAINST HER since she knows that she will certainly be
DISMISSED FROM SERVICE, REMOVED FROM THE PRC ROLL and
CRIMINALLY CONVICTED of her ILLICIT, IMMORAL, ILLEGAL and
UNLAWFUL ACTS.
On October 7, 2004, the Investigating Commissioner of the IBP
Commission on Bar Discipline came out with a Report and
Recommendation, stating that the information related by complainant to
the respondent is protected under the attorney-client privilege
communication. Prescinding from this postulate, the Investigating
Commissioner found the respondent to have violated legal ethics when
she [revealed] information given to her during a legal consultation, and
accordingly recommended that respondent be reprimanded therefor,
thus:
WHEREFORE, premises considered, it is respectfully recommended
that respondent Atty. Roceles Madianda be reprimanded for revealing
the secrets of the complainant.
On November 4, 2004, the IBP Board of Governors issued Resolution
No. XVI-2004-472 reading as follows:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, the Report and Recommendation of the Investigating
Commissioner of the above-entitled case, herein made part of this
Resolution as Annex A; and , finding the recommendation fully supported
by the evidence on record and the applicable laws and rules, and
considering the actuation of revealing information given to respondent
during a legal consultation, Atty. Roceles Madianda is
hereby REPRIMANDED.
We AGREE with the recommendation and the premises holding it
together.
As it were, complainant went to respondent, a lawyer who incidentally
was also then a friend, to bare what she considered personal secrets
and sensitive documents for the purpose of obtaining legal advice and
assistance. The moment complainant approached the then receptive
respondent to seek legal advice, a veritable lawyer-client relationship
evolved between the two. Such relationship imposes upon the lawyer
certain restrictions circumscribed by the ethics of the profession. Among
the burdens of the relationship is that which enjoins the lawyer,
Page 248
respondent in this instance, to keep inviolate confidential information
acquired or revealed during legal consultations. The fact that one is, at
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
the end of the day, not inclined to handle the clients case is hardly of
consequence. Of little moment, too, is the fact that no formal professional
engagement follows the consultation.Nor will it make any difference that
no contract whatsoever was executed by the parties to memorialize the
relationship. As we said in Burbe v. Magulta,[6] -
A lawyer-client relationship was established from the very first moment
complainant asked respondent for legal advise regarding the formers
business. To constitute professional employment, it is not essential that
the client employed the attorney professionally on any previous
occasion.
It is not necessary that any retainer be paid, promised, or charged;
neither is it material that the attorney consulted did not afterward handle
the case for which his service had been sought.
It a person, in respect to business affairs or troubles of any kind, consults
a lawyer with a view to obtaining professional advice or assistance, and
the attorney voluntarily permits or acquiesces with the consultation, then
the professional employments is established.
Likewise, a lawyer-client relationship exists notwithstanding the close
personal relationship between the lawyer and the complainant or the
non-payment of the formers fees.
Dean Wigmore lists the essential factors to establish the existence of the
attorney-client privilege communication, viz:
(1) Where legal advice of any kind is sought (2) from a professional legal
adviser in his capacity as such, (3) the communications relating to that
purpose, (4) made in confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or by the legal
advisor, (8) except the protection be waived.[7]
With the view we take of this case, respondent indeed breached his duty
of preserving the confidence of a client. As found by the IBP
Investigating Commissioner, the documents shown and the information
revealed in confidence to the respondent in the course of the legal
consultation in question, were used as bases in the criminal and
administrative complaints lodged against the complainant.
The purpose of the rule of confidentiality is actually to protect the client
from possible breach of confidence as a result of a consultation with a
lawyer.
The seriousness of the respondents offense notwithstanding, the Court
feels that there is room for compassion, absent compelling evidence that
the respondent acted with ill-will.Without meaning to condone the error
of respondents ways, what at bottom is before the Court is two former
friends becoming bitter enemies and filing charges and counter-charges
against each other using whatever convenient tools and data
were readily available. Unfortunately, the personal information
respondent gathered from her conversation with complainant became
handy in her quest to even the score. At the end of the day, it appears
clear to us that respondent was actuated by the urge to retaliate without
perhaps realizing that, in the process of giving vent to a negative
sentiment, she was violating the rule on confidentiality.
IN VIEW WHEREOF, respondent Atty. Roceles F. Madianda is
hereby REPRIMANDED and admonished to be circumspect in her
handling of information acquired as a result of a lawyer-client
relationship. She is also STERNLY WARNED against a repetition of the
same or similar act complained of.
SO ORDERED.
PINEDAPCGRNMAN
ETHICAL CONSIDERATIONS IN TAKING A BAD CASE
Rule 15.04 A lawyer may, with the written consent of all
concerned, act as mediator, conciliator or arbitrator in settling
disputes.
ATTY JALANDONI VS VILLAROSA (SUPRA)
Rule 15.05 A lawyer, when advising his client, shall give a candid
and honest opinion on the merits and probable results of the
clients case, neither overstating nor understating the prospects of
the case.
[A.C. No. 6424. March 4, 2005]
CONSORCIA S. ROLLON, complainant, vs. Atty. CAMILO
NARAVAL, respondent.
DECISION
PANGANIBAN, J.:
Lawyers owe fidelity to their clients. The latters money or other property
coming into the formers possession should be deemed to be held in trust
and should not under any circumstance be commingled with the lawyers
own; much less, used by them. Failure to observe these ethical principles
constitutes professional misconduct and justifies the imposition of
disciplinary sanctions.
The Case and the Facts
Before us is a letter-complaint against Atty. Camilo Naraval, filed by
Consorcia S. Rollon with the Davao City Chapter of the Integrated Bar of
the Philippines (IBP) on November 29, 2001. The Affidavit[1] submitted
by complainant alleges the following:
Sometime in October of 2000, I went to the office of Atty. Camilo F.
Naraval together with my son, Freddie Rollon, to seek his assistance in
a case filed against me before the Municipal Trial Court in Cities Branch
6, Davao City entitled Rosita Julaton vs. Consorcia S. Rollon for
Collection of Sum of Money with Prayer for Attachment;
After going over the documents I brought with me pertaining to the said
case, Atty. Naraval agreed to be my lawyer and I was required to pay the
amount of Eight Thousand Pesos (Php 8,000.00) for the filing and partial
service fee, which amount was paid by me on October 18, 2000, a copy
of the Official Receipt is hereto attached as Annex A to form part hereof;
As per the instruction of Atty. Naraval, my son, Freddie, returned to his
office the following week to make follow-up on said case. However, I was
informed later by my son Freddie that Atty. Naraval was not able to act
on my case because the latter was so busy. Even after several follow-
ups were made with Atty. Naraval, still there was no action done on our
case;
Sometime in November 29, 2001, I decided to withdraw the amount I
paid to Atty. Naraval, because of the latters failure to comply with our
mutual agreement that he will assist me in the above-mentioned case;
My son Freddie Rollon went to Atty. Naravals office that same day to
inform Atty. Naraval of our decision to withdraw the amount I have paid
and to retrieve my documents pertaining to said case. Unfortunately,
despite our several follow-ups, Atty. Naraval always said that he cannot
return the documents because they were in their house, and that he
could not give us back the amount we paid him (Php 8,000.00) because
he has no money;
Having failed to obtain any response, I decided to refer the matter to Atty.
Ramon Edison Batacan, IBP President of Davao City and to Atty. Pedro
Castillo, the Commissioner on Bar D[i]scipline;
x x x x x x x x x.
In an Order dated March 12, 2002,[2] the IBP Commission on Bar
Discipline (CBD), through Director Victor C. Fernandez, directed
respondent to submit his answer to the Complaint. The same directive
was reiterated in the CBDs May 31, 2002 Order[3] issued through
Page 249
Commissioner Jovy C. Bernabe. Respondent did not file any answer
despite his receipt of the Orders.[4]
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Not having heard from him despite adequate notice, the CBD proceeded
with the investigation ex parte. Its Order[5] dated November 11, 2002,
issued through Commissioner Bernabe, required complainant to submit
her position paper within ten days from receipt thereof, after which the
case was to be deemed submitted for resolution.
The CBD received complainants Position Paper[6] on December 10,
2002.
Report of the Investigating Commissioner
In his Report and Recommendation dated October 16, 2003,
Investigating Commissioner Acerey C. Pacheco recommended that
respondent be suspended from the practice of law for one (1) year for
neglect of duty and/or violation of Canons 15 and 18 of the Code of
Professional Responsibility. The Report reads in part as follows:
Canon 18 of the Code of Professional Responsibility requires every
lawyer to serve his client with utmost dedication, competence and
diligence. He must not neglect a legal matter entrusted to him, and his
negligence in this regard renders him administratively liable x x x.
In the case at bar, the deplorable conduct of the respondent in
misrepresenting to the complainant that he will render legal services to
her, and after receiving certain amount from the latter as payment for
filing fee and service fee did nothing in return, has caused unnecessary
dishonor to the bar. By his own conduct the respect of the community to
the legal profession, of which he swore to protect, has been tarnished.
xxxxxxxxx
In fact, complainant claimed to have been shortchanged by the
respondent when he failed to properly appraised her of the status of her
case which she later on found to have become final and executory.
Apparently, the civil suit between Rosita Julaton and the complainant
have been decided against the latter and which judgment has long
become final and executory. However, despite full knowledge by the
respondent of such finality based on the documents furnished to him,
respondent withheld such vital information and did not properly appraise
the complainant. Thus, respondent violated the mandate in Canon 15 x
x x.[7]
IBP Board of Governors Resolution
On February 27, 2004, the IBP Board of Governors issued Resolution
No. XVI-2004-64 upholding the above-quoted Report. The Board
recommended the suspension of respondent from the practice of law for
two (2) years for violation of Rules 15 and 18 of the Code of Professional
Responsibility and the restitution of complainants P8,000.
The Courts Ruling
We agree with the Resolution of the IBP Board of Governors.
Respondents Administrative Liability
Ordinarily, lawyers are not obliged to act either as advisers or as
advocates of any person who may wish to become their client.[8] They
may decline employment and refuse to accept representation, if they are
not in a position to carry it out effectively or competently.[9] But once they
agree to handle a case, attorneys are required by the Canons of
Professional Responsibility to undertake the task with zeal, care and
utmost devotion.[10]
Acceptance of money from a client establishes an attorney-client
relationship and gives rise to the duty of fidelity to the clients
cause.[11] Every case accepted by a lawyer deserves full attention,
diligence, skill and competence, regardless of importance.[12] The Code
of Professional Responsibility clearly states:
CANON 17 A lawyer owes fidelity to the cause of his client and he shall
be mindful of the trust and confidence reposed in him.
CANON 18 - A lawyer shall serve his client with competence and
diligence.
Rule 18.03 - A lawyer shall not neglect a legal matter entrusted to him
and his negligence in connection therewith shall render him liable.
Rule 18.04 - A lawyer shall keep his client informed of the status of his
case and shall respond within a reasonable time to the clients request
for information.
Hence, practising lawyers may accept only as many cases as they can
efficiently handle.[13] Otherwise, their clients would be prejudiced. Once
PINEDAPCGRNMAN
lawyers agree to handle a case, they should undertake the task with
dedication and care. If they do any less, then they fail their lawyers
oath.[14]
The circumstances of this case indubitably show that after receiving the
amount of P8,000 as filing and partial service fee, respondent failed to
render any legal service in relation to the case of complainant. His
continuous inaction despite repeated followups from her reveals his
cavalier attitude and appalling indifference toward his clients cause, in
brazen disregard of his duties as a lawyer. Not only that. Despite her
repeated demands, he also unjustifiably failed to return to her the files of
the case that had been entrusted to him. To top it all, he kept the money
she had likewise entrusted to him.
Furthermore, after going through her papers, respondent should have
given her a candid, honest opinion on the merits and the status of the
case. Apparently, the civil suit between Rosita Julaton and complainant
had been decided against the latter. In fact, the judgment had long
become final and executory. But he withheld such vital information from
complainant. Instead, he demanded P8,000 as filing and service fee and
thereby gave her hope that her case would be acted upon.
Rule 15.05 of the Code of Professional Responsibility requires that
lawyers give their candid and best opinion to their clients on the merit or
lack of merit of the case, neither overstating nor understating their
evaluation thereof. Knowing whether a case would have some prospect
of success is not only a function, but also an obligation on the part of
lawyers.[15] If they find that their clients cause is defenseless, then it is
their bounden duty to advise the latter to acquiesce and submit, rather
than to traverse the incontrovertible.[16] The failure of respondent to fulfill
this basic undertaking constitutes a violation of his duty to observe
candor, fairness and loyalty in all his dealings and transactions with his
clients.[17]
Likewise, as earlier pointed out, respondent persistently refused to return
the money of complainant despite her repeated demands. His conduct
was clearly indicative of lack of integrity and moral soundness; he was
clinging to something that did not belong to him, and that he absolutely
had no right to keep or use.[18]
Lawyers are deemed to hold in trust their clients money and property that
may come into their possession.[19] As respondent obviously did nothing
on the case of complainant, the amount she had given -- as evidenced
by the receipt issued by his law office -- was never applied to the filing
fee. His failure to return her money upon demand gave rise to the
presumption that he had converted it to his own use and thereby
betrayed the trust she had reposed in him.[20] His failure to do so
constituted a gross violation of professional ethics and a betrayal of
public confidence in the legal profession.[21]
The Code exacts from lawyers not only a firm respect for law, legal
processes and the courts,[22] but also mandates the utmost degree of
fidelity and good faith in dealing with the moneys entrusted to them
pursuant to their fiduciary relationship.[23] Respondent clearly fell short of
the demands required of him as a member of the bar. His inability to
properly discharge his duty to his client makes him answerable not just
to her, but also to this Court, to the legal profession, and to the general
public.[24] Given the crucial importance of his role in the administration of
justice, his misconduct diminished the confidence of the public in the
integrity and dignity of the profession.[25]
WHEREFORE, Atty. Camilo Naraval is found GUILTY of violating Rule
15.05 and Canons 16, 17 and 18 of the Code of Professional
Responsibility and is hereby SUSPENDED from the practice of law for a
period of two (2) years, effective upon his receipt of this Decision.
Furthermore, he is ORDERED TO RESTITUTE, within thirty (30) days
from notice of this Decision, complainants eight thousand pesos
(P8,000), plus interest thereon, at the rate of six percent per annum, from
October 18, 2000, until fully paid. Let copies of this Decision be furnished
all courts, the Office of the Bar Confidant, as well as the National Office
and the Davao City Chapter of the Integrated Bar of the Philippines.
Page 250
SO ORDERED.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
[A.C. No. 5534. January 17, 2005]
JAYNE Y. YU, complainant, vs. RENATO LAZARO
BONDAL, respondent.
DECISION
CARPIO MORALES, J.:
Atty. Renato Lazaro Bondal (respondent) stands charged in a
complaint[1] filed by Jayne Y. Yu (complainant) for gross negligence and
violation of Canon 16[2] and Rule 16.03[3] of the Code of Professional
Responsibility arising from his alleged failure to attend to the five cases
she referred to him and to return, despite demand, the amount
of P51,716.54 she has paid him.
By complainants allegation, the following spawned the filing of the
present administrative complaint:
On March 30, 2000, she engaged the services of respondent as counsel
in the following cases: (1) Jayne Yu. v. Swire Realty and Development
Corp, for Rescission with Damages filed before the Housing and Land
Use Regulatory Board, (2) I.S. No. 00-22089-90, Jayne Yu v. Lourdes
Fresnoza Boon, for Estafa, (3) I.S. No. 2000-G-22087-88, Jayne Yu v.
Julie Teh, for violation of Batas Pambansa Blg. 22, (4) I.S. No. 2000-D-
11826, Jayne Yu v. Mona Lisa San Juan for violation of Batas Pambansa
Blg. 22, and (5) I.S. No. 2000-D-11827, Jayne Yu v. Elizabeth Chan
Ong, also for violation of Batas Pambansa Blg. 22.[4]
In the Retainer Agreement[5] dated March 30, 2000, complainant agreed
to pay respondent the amount of P200,000.00 as Acceptance Fee for
the five cases, with an Appearance Fee of P1,500.00 pesos per hearing;
and in the event that damages are recovered, she would pay respondent
10% thereof as success fee.
Complainant later issued two checks, BPI Family Bank No. 94944 and
BPI Family Bank No. 94968, dated February 20, 2001 and April 5, 2001
in the amount of P30,000.00 andP21,716.54, respectively.[6]
Despite receipt of above-said amounts, respondent failed to file a case
against Swire Realty and Development Corp;[7] due to respondents
negligence, the case for estafa against Lourdes Fresnoza Boon was
dismissed by the Office of the City Prosecutor of Makati City and was not
timely appealed to the Department of Justice;[8] respondent negligently
failed to inform complainant, before she left for abroad, to leave the
necessary documents for purposes of the preliminary investigation of the
case filed against Julie Teh before the Office of the City Prosecutor of
Makati City, which case was eventually dismissed by Resolution dated
August 14, 2000;[9] and respondent compelled her to settle the two cases
for violation of B.P. Blg. 22 against Mona Lisa San Juan and Elizabeth
Chan Ong under unfair and unreasonable terms.[10]
Respondent thus demanded from respondent, by letter[11] of June 14,
2001, for the return of all the records she had entrusted him bearing on
the subject cases.
Through complainants counsel (Chavez Laureta and Associates Law
Office) which sent a letter[12] to respondent, she reiterated her demand
for the return of the records of the cases.
Respondent did return but only the records bearing on the estafa case
against Lourdes Fresnoza Boon and the B.P. Blg. 22 case against Mona
Lisa San Juan.
Complainant through counsel thus demanded, by letter[13] of August 8,
2001, the return of the rest of the files, particularly that dealing with Swire
Realty and Development Corporation and Julie Teh. In the same letter,
complainant also demanded the refund of the amounts covered by the
above-said two BPI Family Bank Checks amounting to P51,716.54, they
being intended to represent payment of filing fees for the case against
Swire Realty and Development Corporation which respondent failed to
file.
As respondent failed and continues to refuse to comply with
complainants valid demands in evident bad faith and to her prejudice,
she filed the present complaint charging him with flagrant violation of
Canon 16 and Canon 16.03 of the Code of Professional Responsibility.
By Resolution[14] of February 4, 2002, this Court directed respondent to
file his Comment. Respondent, through his counsel, the Escobido and
Pulgar Law Offices, filed a motion for extension for thirty days or up to
PINEDAPCGRNMAN
April 9, 2002, which was granted by Resolution of May 27, 2002. No copy
was, however, furnished respondents counsel.[15]
As respondent failed to file his Comment on the present complaint, this
Court, by Resolution of July 21, 2003, considered the filing of
respondents comment deemed waived and allowed complainant to
present her evidence before the Office of the Bar Confidant.[16]
At the hearing before the Officer of the Bar Confidant, complainant
echoed her allegations in the complaint.
As to the other cases referred by complainant to respondent,
complainant testified that the case against Julie Enriquez-Teh was
dismissed because respondent failed to present the original checks
subject of the case;[17] that the estafa case against Ms. Lourdes Boon
was dismissed and was never appealed;[18] and that she was prodded
by respondent to settle the two cases for B.P. Blg. 22 even if she was
not satisfied with the terms thereof, respondent having assured her that
he would waive his 10% success fee in the case against Swire
Development.[19]
And complainant submitted the following documentary evidence: (1)
Retainer Agreement between her and Atty. Renato Lazaro Bondal;[20] (2)
BPI Family Bank Check No. 94944 dated February 20, 2001
for P30,000.00 payable to cash;[21] (3) BPI Family Bank Check No.
94968 dated April 5, 2001 for P21,716.54 payable to cash;[22] (4)
Resolution of the City Prosecutor of Makati dated August 18, 2000 on a
case between Jayne Yu and Lourdes Fresnoza Boon;[23] (5) Resolution
of the City Prosecutor of Makati on a case between her and Julie
Enriquez-Teh;[24] (5) her letter to respondent dated June 14, 2001
requesting the return of pertinent records of the cases referred to
him;[25] (6) letter of Francisco I. Chavez to respondent dated July 18,
2001 reiterating the request for the return of the records and an
accounting of the amount of P51,716.54;[26] (7) letter of Francisco I.
Chavez to respondent dated August 8, 2001 confirming the receipt of
two folders relative to the cases she filed against Lourdes Fresnoza Boon
and Mona Lisa San Juan, requesting Atty. Bondal to return the files
bearing on Swire Realty and Development Corporation and Julie Teh,
and demanding the refund of the amount of P51,716.54.[27]
The Office of the Bar Confidant, by Report and
Recommendation,[28] recommends the dismissal of the complaint for
failure of complainant to substantiate it.
From the records of the case, it is culled that except for the case against
Swire Development Corporation, the other 4 cases referred by
complainant to respondent were filed in court but were dismissed or
terminated for causes not attributable to respondent.
The case for estafa against Lourdes Fresnoza Boon in I.S. No. 00-
22089-90 was dismissed by the Makati Prosecutors Office by Resolution
dated August 18, 2000 due to lack of probable cause and, in any event,
the issues raised therein were in the nature of intra-corporate disputes
which are properly cognizable by another forum, viz:
After careful examination and evaluation of the evidence adduced both
by complainant and respondent, undersigned Investigating Prosecutor f
inds no probable cause to hold respondent for the offense charged of
Estafa. Apparently, there was no deceit and/or unfaithfulness or abuse
of confidence employed by respondent when complainant agreed to
invest her money in the restaurant business under the name and style of
La Gondola, Inc. which is owned by respondent. xxx In the present case,
though, complainant alleged that respondent immediately upon receipt
of the P4,800,000.00 representing her investment in the restaurant
business, executed earlier in favor of Philippine Commercial and
International Bank whereby La Gondola assumed the loans and credit
accommodations obtained by Lucre Export/Import Inc., using the funds
of La Gondola, Inc.; respondent being the President and majority owner
of the latter corporation. However, outside of the mere allegation of
complainant that respondent allegedly assumed the loans and credit
accommodations extended to the other company using the funds of La
Gondola, Inc., no concrete and real evidence were presented and/or
Page 251
proven to this effect by complainant. xxx
Intelligentia et Scientia Semper Mea
LEGAL ETHICS PINEDAPCGRNMAN
Moreover, it is apparent that the issues being raised by complainant acceptance fee is not a contingent fee, but is an absolute fee
appears to be intra-corporate disputes which could be very well settled arrangement which entitles a lawyer to get paid for his efforts regardless
in another forum.[29] (Underscoring supplied) of the outcome of the litigation. That complainant was dissatisfied with
Notably, a similar complaint for the same offense, docketed as I.S. No. the outcome of the four cases does not render void the above retainer
99-H-2780, had been previously filed by complainant against Ms. Boon agreement for respondent appears to have represented the interest of
which case was dismissed for insufficiency of evidence.[30] As thus complainant. Litigants need to be reminded that lawyers are not demi-
observed by the Office of the Bar Confidant, the filing of an appeal from gods or magicians who can always win their cases for their clients no
the prosecutors resolution would have been inutile since the facts and matter the utter lack of merit of the same or how passionate the litigants
issues raised in the estafa case had already been twice passed upon by may feel about their cause.[37]
the Office of the City Prosecutor, hence, it would likely be dismissed.[31] In sum, this Court finds well taken the finding of the Office of the Bar
No fault or negligence can also be attributed to respondent in the Confidant that complainant failed to establish the guilt of respondent by
dismissal of I.S. No. 2000-G-22087-88 against Julie Teh. By Resolution clear, convincing and satisfactory proof. The charges against him must
of August 14, 2000 of the Makati Prosecutors Office, it is clear that it was thus be dismissed.[38]
dismissed, in the main, on the ground that the offense charged did not However, since respondent had been advised by complainant through
actually exist and complainant failed to appear and present the original counsel Chavez Laureta and Associates, by letter of July 18, 2001, that
checks, viz: she intended to terminate his services, as of said date, he was obliged,
After a careful evaluation of the evidence on record, the undersigned under Rule 22.02 of the Code of Professional Responsibility, viz:
recommends for the dismissal of the present complaints on the following Rule 22.02 A lawyer who withdraws or is discharged shall, subject to a
grounds: retainer lien, immediately turn over all papers and property to which the
1. Despite reasonable opportunity given to her, complainant failed to client is entitled, and shall cooperate with his successor in the orderly
appear and present the original copies of the subject checks and other transfer of the matter, including all information necessary for the proper
documents attached to the complaint. handling of the matter,
2. The subject checks were presented after the 90-day period hence to immediately turn over all papers and property which complainant
there is no more presumption of knowledge of the insufficiency of funds. entrusted to his successor.
Accordingly, the burden is shifted upon the complainant to prove that at WHEREFORE, the complaint is hereby DISMISSED. Respondent is,
the time the checks were issued, the drawer knew that he had insufficient however, hereby directed to RETURN all the records in his possession
funds. There is no allegation much less proof to that effect. The result is relative to the cases he handled for complainant.
that the element of knowledge of insufficiency of funds or credit is not
present, therefore the crime does not exist.[32] Rule 15.06 A lawyer shall not state nor imply that he is able to
On the alleged failure of respondent to appear during the hearing of I.S. influence any public official, tribunal or legislative body.
No. 2000-G-22087-88 and his failure to present the original of the checks
subject thereof, they being then in the possession of complainant who TANU REDDI, A.C. No. 7027
was abroad at that time:[33] Such failure to present the original of the Complainant, Present:
checks cannot solely be attributed to respondent, for she herself was
guilty of neglect.[34] PUNO,* C.J.,
As for the alleged compulsion in the settlement of her two complaints for QUISUMBING,** Acting C.J.,
violation of B.P. Blg. 22 in accordance with the terms dictated by the YNARES-SANTIAGO,*
therein respondents Mona Lisa San Juan and Elizabeth Chan Ong, upon CARPIO,
the promise of respondent that he would waive the 10% success fee in - versus - AUSTRIA-MARTINEZ,
the complaint to be filed against Swire Development: Assuming the CORONA,
truthfulness of her allegation that respondent compelled her to settle, CARPIO MORALES,
what the terms were as alleged to have been dictated by Ms. San Juan AZCUNA,*
and Ms. Chan Ong, and the manner and/or extent of prejudice she TINGA,
suffered, complainant did not establish. Moreover, she failed to show that ATTY. DIOSDADO C. SEBRIO, JR., CHICO-NAZARIO,
the promise by respondent that he would waive the 10% success fee Respondent. VELASCO, JR.,*
was for the purpose of defrauding her or of such nature as to constitute NACHURA,
undue influence, thereby depriving her of reasonable freedom of choice. LEONARDO-DE CASTRO,
Subsequent to the amicable settlement, it appears that complainant BRION, &
never raised any objection to the terms of the compromise. As an PERALTA, JJ.
accepted rule, when a client, upon becoming aware of the compromise Promulgated:
and the judgment thereon, fails to promptly repudiate the action of his
attorney, he will not afterwards be heard to complain about it.[35] January 30, 2009
As for complainants claim that the amount of P51,716.54, which was the
only amount on record that complainant paid for respondents legal x--------------------------------------------------x
services, was intended for the filing fees in the complaint against Swire
Development Corporation, the same was not substantiated as in fact the DECISION
retainer agreement does not so confirm.
We would like to thank you for retaining our law firm in the handling and PER CURIAM:
representation of your
case. In regard to the five cases you referred to us, our aggregate Acce Tanu Reddi (complainant), an American citizen of Indian descent and a
ptance fee is P200,000 Pesos with anAppearance fee of P1,500.00 Pe practicing endodontist in New York, seeks the disbarment of Atty.
sos per hearing. As regards the damages to be recovered, we will get Diosdado C. Sebrio, Jr. (respondent) for allegedly deceiving her into
10% thereof by way of Success Fee.[36] (Underscoring supplied) giving him a total of US$ 3,000,000 for the purpose of, among other
If, admittedly, the only payment given to complainant by respondent is things, purchasing several real estate properties for resale.
Page 252

the amount of P51,716.54, then complainant still owes respondent more,

as respondent rendered his legal services in 4 out of the 5 cases. An From the records of the case, the following facts are gathered:

Intelligentia et Scientia Semper Mea

LEGAL ETHICS
Taking after her parents who had been involved in various charitable
activities in India, complainant nurtured philanthropic desires of her own
consisting primarily in opening a hospital with modern facilities in an
underdeveloped part of Asia.[1]
Together with Immaculada Luistro (Immaculada), a Filipino
citizen,[2] who was her assistant of over 10 years, complainant visited the
Philippines for the first time in 2000. Noting the level of poverty in the
country and the lack of medical services for the poor,[3] she decided to
put up a hospital.[4]
Immaculada suggested to complainant to consider engaging in the real
estate business in the Philippines in order to speed up the generation of
funds.[5] Heeding the suggestion, complainant returned to
the Philippines in 2003 to explore opportunities in the real estate
business.[6]
Complainant was introduced to respondent who would help her acquire
real properties for development and/or resale. Since she could not
acquire ownership of lands in thePhilippines, respondent advised her to
use corporate vehicles to effect the purchases. Three corporations were
thus formed Tagaytay Twins, Inc., Manila Chic Twins, Inc., and Tanu,
Inc.[7]
By complainants account, respondent cajoled her into buying several
parcels of land located at Tagaytay City, Las Pias City, Makati City,
Quezon City, and Pasay City.She related the details surrounding the
intended acquisition of property as follows:
Re the Tagaytay City Property
Respondent represented to complainant that his client Teresita Monzon
(Teresita) owned an untitled 27-hectare property located at Tagaytay
City. Through the Tagaytay Twins, Inc., complainant and Teresita
executed a Memorandum of Agreement dated March 21, 2003
(Tagaytay MOA)[8] prepared by respondent under which she agreed to
finance the titling of the property in the total amount of P20,000,000, and
that once titled, the property would be offered for sale, the proceeds of
which would be divided equally between her and Teresita. Complainant
thereupon made staggered payments of US$1,000, P2,000,000, and
US$36,360 to Teresita.[9]
Complainant was later to discover that 996 square meters of the 27-
hectare property had been purchased by Aldio Properties, Inc. in an
extrajudicial foreclosure sale, which sale Teresita challenged in an action
for annulment before the Regional Trial Court of Tagaytay City. In said
action, respondent was Teresitas counsel of record.[10]
Re the Las Pias City Property
Respondent offered to complainant the option to purchase a house and
lot located at Las Pias City, which were encumbered by a mortgage, and
which respondent represented as owned and being sold by one
Francisca Parales (Francisca)[11] to finance an urgently needed heart
surgery of her daughter.[12]
On respondents advice, complainant obtained a franchise to operate a
Jollibee food outlet, with the agreement that out of the profits that its
operation would generate, she would get 50% while respondent and
Immaculada would share the remaining 50%.[13] Complainant thus sent
respondent sums of money for the acquisition of both the Las Pias
property and a franchise to operate a Jollibee outlet.[14]
Re the Makati City Property
PINEDAPCGRNMAN
Respondent introduced complainant to a certain Mario C. Mangco
(Mangco), alleged legal officer of the intestate estate of one Faustino
Ramos (Ramos), which estate was alleged to be the owner of a real
property located at the consular area adjacent
to Forbes Park in Makati City.[15] Complainant having been interested in
acquiring the property, respondent prepared a Memorandum of
Agreement (Makati MOA) which she, together with Mangco, forged on
March 20, 2004.[16]
Under the Makati MOA, complainant agreed to, as she did,
release P10,000,000 representing the cost of development and titling of
the property, and payment of back taxes; and an additional P2,000,000
for the execution of the Makati MOA.
Complainant was later to learn that the property was neither owned by
the intestate estate of Ramos nor for sale.
Re the Quezon City Property
Respondent broached to complainant the idea of buying the land on
which SM North Mall in Quezon City stands, he representing that it
belongs to his client, purportedly a retired US Navy employee who
resides in Mindanao.[17] Complainant assented and transmitted large
sums of money to respondent for the purpose of, among other things,
filing a petition for injunction against SM North Mall, paying back taxes,
and titling of the land.[18]
Re the Pasay City Property
Complainant sent respondent hefty amounts of money for the purchase
of a vacant lot located along Roxas Boulevard in Pasay City, alleged to
belong to Florenda Estrada (Florenda) and Alma Mallari (Alma), but
which was mortgaged to one Atty. Go to secure a loan
of P5,000,000.[19] She also defrayed expenses, on the strength of
respondents representations, to secure title to the lot, settle the
mortgage obligation, relocate squatters on the lot, and bribe a judge to
close the transaction.[20]
Complainant subsequently discovered that there was no such vacant lot
along Roxas Boulevard in Pasay City; instead, she found out that the
vacant lot referred to was titled in the names of Philippine Bank of
Communications (PBC) and Banco De Oro Universal Bank (BDO).[21]
In light of the foregoing developments, complainants counsel, by letter
dated December 19, 2005,[22] demanded from respondent the return of
the amount of US$3,000,000, claimed to be part of the total sum of
money she had sent to him for all the transactions that did not come
about. No amount has been returned to complainant.
Hence, spawned the filing on January 27, 2006[23] of the present
complaint for disbarment against respondent.
By his Comment, respondent admits receiving a total of US$544,828
from complainant[24] which amount he claims was used not only for the
purchase of the Las Pias property and discharge of the mortgage
thereon, but also for the setting up of the earlier mentioned corporations,
as well as for the downpayment on the Makati property and related
expenses.[25]
Respondent likewise admits having represented to complainant that the
Las Pias City property belonged to one Francisca,[26] certificate of title to
which and the corresponding deed of sale signed by Francisca, by his
claim, are in his possession; but the title has not been transferred to
Tanu, Inc., as agreed, in view of complainants failure to provide the
Page 253
money needed therefor, he adding that he is also exercising his retaining
lien over the Las Pias documents.[27]
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Specifically with respect to the Makati property, respondent claims
having paid P500,000 to Mangco representing initial payment[28] thereof.
Regarding the Tagaytay City property, respondent admits that the
Tagaytay MOA exists, and avers that it is complainant who wants to get
out of a perfected sale in order to recover her partial payment amounting
to approximately P4,000,000.[29]
With respect to the Quezon City property, respondent states that he is
willing to surrender all the documents pertaining thereto, but would do so
only if complainant is first ordered to pay him his professional fees.[30]
As for the Pasay City property, respondent denies complainants claims
thereon as mere preposterous allegations.
Following the filing by complainant of her Reply, the Court referred the
case to the Integrated Bar of the Philippines (IBP) for investigation, report
and recommendation/decision by Resolution of January 22, 2007.[31]
At the mandatory conference scheduled by the IBP Commission on Bar
Discipline on September 13, 2007 before Commissioner Lolita A.
Quisumbing (the Commissioner),[32]respondent failed to appear despite
notice. He instead sent a representative who sought a resetting as,
allegedly, respondent was in Ilocos attending to an important family
matter.[33] The Commissioner, finding respondents absence
inexcusable, given that he had ample time to file a motion for resetting
but he did not, considered respondent to have waived his right to
participate in the proceedings.[34] Complainant thereupon presented
evidence ex-parte and submitted her position paper.[35]
In her Report and Recommendation[36] submitted to the IBP Board of
Governors on December 14, 2007, the Commissioner found respondent
to have committed fraudulent acts which constitute violations of the
lawyers oath and numerous provisions of the Code of Professional
Responsibility (CPR), viz:
1. Respondent violated CANON 1 which states: A lawyer shall uphold
the Constitution, obey the laws of the land and promote respect for the
law and for legal processes.
Respondent committed estafa punishable under Art. 315 of the Revised
Penal Code. With unfaithfulness and abuse of confidence, he
misappropriated millions of pesos which was [sic] given to him on his
misrepresentation that such were needed for the acquisition of the
aforementioned properties.
Respondent also committed an unlawful act (i.e., falsification as part of
his fraudulent scheme) when he tampered with the Articles of
Incorporation of Tanu, Inc.. A perusal of the Articles of Incorporation
given by respondent to complainant shows that the incorporators are
Tanu Reddi, Michael Lee, Prasuna Reddy, Ahalya Devi, and Robert
Juntilla. When complainant obtained a copy of the same in September
2005, she discovered that other names were inserted. The names of
respondent, Clarito D. Cardozo, Brian Pellazar, and Michael Angelo
Lopez were intercalated. (Exhibit W)
2. He likewise violated Rule 1.01 of the CPR which provides: A lawyer
shall not engage in unlawful, dishonest, immoral or deceitful conduct.
He engaged in unlawful, dishonest and deceitful conduct when he
offered properties for sale to complainant on the misrepresentation that
complainant was dealing with the true owners thereof. This is very clear
from the documents he asked complainant to sign; namely, the
Memorandum of Agreement (Exhibit D) for the Tagaytay property, Deed
of Conditional Sale (Exhibit U) for the Pasay City property, and
PINEDAPCGRNMAN
Memorandum of Agreement (Exhibit M) for the Makati City property. The
certificates of title, tax declaration and other documents obtained by
complainant from the various government agencies reveal that all these
properties aforementioned were either fictitious, not susceptible to sale,
simulated, or inexistent.
3. Respondent violated Canon 16 and Rule 16.01 of the CPR which
state:
CANON 16 A lawyer shall hold in trust all moneys and properties of his
client that may come into his possession.
Rule 16.01 A lawyer shall account for all money or property collected or
received for or from the client.
He failed to account for the sums of money he received from
complainant and failed to return the same upon demand. (Copy of
demand letter dated 19 December 2005, Exhibit T)
4. Respondent violated Rule 15.06 of the CPR which provides:
A lawyer shall not state or imply that he is able to influence any public
official, tribunal or legislative body.
He convinced complainant to pay bribe money to our judges since, he
claims, that it is a common practice in the Philippines.[37] (Underscoring
supplied)
The Commissioner thus recommended that respondent be disbarred;
that his name be ordered stricken from the roll of attorneys; and that he
be ordered to return the total amount of US$3,000,000 to complainant.
By Resolution of January 17, 2008,[38] the IBP Board of Governors
adopted and approved the Report and Recommendation of the
Commissioner, with the modification that respondent was ordered
to return only the admitted amount he received from complainant
(US$544,828), without prejudice to complainants recovery of the other
amounts claimed in the appropriate forum.
The Court sustains the IBP Board of Governors, except its
findings/conclusion that respondent committed estafa and
falsification. This is not the proper forum to determine whether he
committed these offenses.
The Court finds, however, that respondents dishonest and deceitful
conduct with respect to the intended transactions, real property
acquisitions which turned out to be bogus, is sufficiently established.
It bears emphasis that respondent admits having received from
complainant at least US$544,828. He claims, however, that the amount
was used for the purchase of the Las Pias property and the discharge of
the mortgage thereon, the setting up of the corporations earlier
mentioned, and the downpayment on the Makati property and related
representation expenses therefor. The Court finds that the claim does
not lie.
All that respondent presented to account for the money is a handwritten
acknowledgment of a supposed partial payment of P500,000 for the
Makati property, purportedly executed by one Mangco.[39] By any
standard, this document is a mere piece of paper, Mangco not having
been presented, if he exists at all, to confirm that he indeed issued the
receipt. Since respondent failed to credibly account, upon demand, for
the money held by him in trust an element of
misappropriation[40] complainants claim that respondent employed
Page 254
deceit on her is established.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS PINEDAPCGRNMAN
Respondents culpability is further highlighted by his utter lack of regard complainant is not precluded from litigating her claim for any balance due
for the seriousness of the charges against him. His defenses raised in her in the proper forum.
his Comment consist mainly in bare denials. When the integrity of a
member of the bar is challenged, it is not enough that he denies the WHEREFORE, respondent Diosdado C. Sebrio, Jr. is DISBARRED, and
charges against him; he must meet the issue and overcome the evidence his name is ORDERED STRICKEN from the Roll of Attorneys. He
against him.[41] He must show proof that he still maintains that degree of is ORDERED TO RETURN to complainant the amount of
morality and integrity which at all times is expected of him.[42] This, US$544,828. Let a copy of this Decision be entered in his record as a
respondent miserably failed to do. member of the Bar; and let notice of the same be served on the
Integrated Bar of the Philippines, and on the Office of the Court
Respondents justification for his non-presentation of any documents to Administrator for circulation to all courts in the country.
substantiate the so-called property acquisitions that he is exercising his
retaining lien over them as, allegedly, his professional fees have not SO ORDERED.
been paid is incredible.
Rule 15.07 A lawyer shall impress upon his client compliance with
If those documents actually exist, and considering that his license to the laws and the principles of fairness.
practice law is on the line, respondent could have readily attached even
photocopies thereof to his Comment in order to lend a semblance of
credibility to his claim. His retaining lien claim remains just that. Worse, RURAL BANK OF CALAPE, A.C. No. 5736
it only amounts to an admission that he acted as counsel for complainant; INC. (RBCI) BOHOL,
yet, he completely failed to show that in his dealings on her behalf, he Complainant, Present:
put her interests before his.
CARPIO, J., Chairperson,
As to the recommended penalty of disbarment, the Court finds the same - versus - NACHURA,
to be in order. PERALTA,
ABAD, and
Section 27, Rule 138 of the Rules of Court provides: PEREZ,* JJ.

A member of the bar may be disbarred or suspended from his office as ATTY. JAMES BENEDICT
attorney by the Supreme Court for any deceit, malpractice, or other gross FLORIDO, Promulgated:
misconduct in such office, grossly immoral conduct, or by reason of his Respondent.
conviction of a crime involving moral turpitude, or for any violation of the June 18, 2010
oath which he is required to take before admission to practice, or for a x--------------------------------------------------x
willful disobedience of any lawful order of a superior court, or for corruptly
or willfully appearing as an attorney for a party to a case without authority
to do so. x x x.
DECISION

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

US$544,828 from complainant, which he could not properly account
for. The orchestrated manner in which he carried out his fraudulent
scheme, in connivance with other persons, and by taking advantage of
complainants naivete in the workings of the real estate business in the
Philippines, depict a man whose character falls way, way short of the
exacting standards required of him as a member of the bar and an officer
of the court. Thus, respondent is no longer fit to remain as such.
The Court is mindful that disbarment is the most severe form of
disciplinary sanction and, as such, the power to disbar must always be
exercised with great caution, and only for the most imperative reasons
and in clear cases of misconduct affecting the standing and moral
character of the lawyer as an officer of the court and a member of the
bar.[43] If the practice of law, however, is to remain an honorable
profession and attain its basic ideals, those enrolled in its ranks should
not only master its tenets and principles but should also, in their lives,
accord continuing fidelity to them.[44] The requirement of good moral
character is, in fact, of much greater import, as far as the general public
is concerned, than the possession of legal learning.[45]
The Court also sustains the order of the IBP for respondent to return only
the amount of US$544,828. While complainant submitted documents
showing her bank remittances involving different sums of money, some
of these remittances were not made in the name of respondent.[46] And
as complainant herself declares, the amount of US$3,000,000 is a
mere estimate of her total claim.[47] Thus, only the return of
CARPIO, J.:
The Case
This is a complaint for disbarment filed by the members of the Board of
Directors[1] of the Rural Bank of Calape, Inc. (RBCI) Bohol against
respondent Atty. James Benedict Florido (respondent) for acts
constituting grave coercion and threats when he, as counsel for the
minority stockholders of RBCI, led his clients in physically taking over the
management and operation of the bank through force, violence and
intimidation.
The Facts
On 18 April 2002, RBCI filed a complaint for disbarment against
respondent.[2] RBCI alleged that respondent violated his oath and the
Code of Professional Responsibility (Code).
According to RBCI, on 1 April 2002, respondent and his clients, Dr.
Domeciano Nazareno, Dr. Remedios Relampagos, Dr. Manuel
Relampagos, and Felix Rengel (Nazareno-Relampagos group), through
force and intimidation, with the use of armed men, forcibly took over the
management and the premises of RBCI. They also forcibly evicted Cirilo
A. Garay (Garay), the bank manager, destroyed the banks vault, and
installed their own staff to run the bank.
Page 255

the admitted amount of US$544,828 is in order. As reflected above,

Intelligentia et Scientia Semper Mea

LEGAL ETHICS
In his comment, respondent denied RBCIs allegations. Respondent
explained that he acted in accordance with the authority granted upon
him by the Nazareno-Relampagos group, the lawfully and validly elected
Board of Directors of RBCI. Respondent said he was merely effecting a
lawful and valid change of management. Respondent alleged that a
termination notice was sent to Garay but he refused to comply. On 1 April
2002, to ensure a smooth transition of managerial operations,
respondent and the Nazareno-Relampagos group went to the bank to
ask Garay to step down. However, Garay reacted violently and grappled
with the security guards long firearm. Respondent then directed the
security guards to prevent entry into the bank premises of individuals
who had no transaction with the bank. Respondent, through the orders
of the Nazareno-Relampagos group, also changed the locks of the banks
vault.
Respondent added that the criminal complaint for malicious mischief filed
against him by RBCI was already dismissed; while the complaint for
grave coercion was ordered suspended because of the existence of a
prejudicial question. Respondent said that the disbarment complaint was
filed against him in retaliation for the administrative cases he filed against
RBCIs counsel and the trial court judges of Bohol.
Moreover, respondent claimed that RBCI failed to present any
evidence to prove their allegations. Respondent added that the affidavits
attached to the complaint were never identified, affirmed, or confirmed
by the affiants and that none of the documentary exhibits were originals
or certified true copies.
The Ruling of the IBP
On 28 September 2005, IBP Commissioner Leland R. Villadolid, Jr.
(Commissioner Villadolid, Jr.) submitted his report and declared that
respondent failed to live up to the exacting standards expected of him as
vanguard of law and justice.[3] Commissioner Villadolid, Jr.
recommended the imposition on respondent of a penalty of suspension
from the practice of law for six months to one year with a warning that
the repetition of similar conduct in the future will warrant a more severe
penalty.
According to Commissioner Villadolid, Jr., respondent knew or ought to
have known that his clients could not just forcibly take over the
management and premises of RBCI without a valid court
order. Commissioner Villadolid, Jr. noted that the right to manage and
gain majority control over RBCI was one of the issues pending before
the trial court in Civil Case No. 6628. Commissioner Villadolid, Jr. said
that respondent had no legal basis to implement the take over of RBCI
and that it was a naked power grab without any semblance of legality
whatsoever.
Commissioner Villadolid, Jr. added that the administrative complaint
against respondent before the IBP is independent of the dismissal and
suspension of the criminal cases against respondent. Commissioner
Villadolid, Jr. also noted that RBCI complied with the IBP Rules of
Procedure when they filed a verified complaint and submitted duly
notarized affidavits. Moreover, both RBCI and respondent agreed to
dispense with the mandatory conference hearing and, instead,
simultaneously submit their position papers.
On 20 March 2006, the IBP Board of Governors issued Resolution No.
XVII-2006-120 which declared that respondent dismally failed to live up
to the exacting standards of the law profession and suspended
respondent from the practice of law for one year with a warning that
repetition of similar conduct will warrant a more severe penalty.[4]
On 5 July 2006, respondent filed a motion for reconsideration. In its 11
December 2008 Resolution, the IBP denied respondents motion.[5]
PINEDAPCGRNMAN
The Ruling of the Court
We affirm the IBP Board of Governors resolution.
The first and foremost duty of a lawyer is to maintain allegiance to the
Republic of the Philippines, uphold the Constitution and obey the laws of
the land.[6] Likewise, it is the lawyers duty to promote respect for the law
and legal processes and to abstain from activities aimed at defiance of
the law or lessening confidence in the legal system.[7]
Canon 19 of the Code provides that a lawyer shall represent his client
with zeal within the bounds of the law. For this reason, Rule 15.07 of the
Code requires a lawyer to impress upon his client compliance with the
law and principles of fairness. A lawyer must employ only fair and honest
means to attain the lawful objectives of his client.[8] It is his duty to
counsel his clients to use peaceful and lawful methods in seeking justice
and refrain from doing an intentional wrong to their adversaries.[9]
We agree with Commissioner Villadolid, Jr.s conclusion:
Lawyers are indispensable instruments of justice and peace. Upon
taking their professional oath, they become guardians of truth and the
rule of law. Verily, when they appear before a tribunal, they act not
merely as representatives of a party but, first and foremost, as officers of
the court. Thus, their duty to protect their clients interests is secondary
to their obligation to assist in the speedy and efficient administration of
justice. While they are obliged to present every available legal remedy
or defense, their fidelity to their clients must always be made within the
parameters of law and ethics, never at the expense of truth, the law, and
the fair administration of justice.[10]
A lawyers duty is not to his client but to the administration of justice. To
that end, his clients success is wholly subordinate. His conduct ought to
and must always be scrupulously observant of the law and ethics.[11] Any
means, not honorable, fair and honest which is resorted to by the lawyer,
even in the pursuit of his devotion to his clients cause, is condemnable
and unethical.[12]
WHEREFORE, we find respondent Atty. James Benedict
Florido GUILTY of violating Canon 19 and Rules 1.02 and 15.07 of the
Code of Professional Responsibility.Accordingly,
we SUSPEND respondent from the practice of law for one year effective
upon finality of this Decision.
Let copies of this decision be furnished the Office of the Bar Confidant,
to be appended to respondents personal record as attorney. Likewise,
copies shall be furnished to the Integrated Bar of the Philippines and in
all courts in the country for their information and guidance.
SO ORDERED.
Rule 15.08 A lawyer who is engaged in another profession or
occupation concurrently with the practice of law shall make clear
to his client whether he is acting as a lawyer or in another capacity.
Lawyers should refrain from giving any advice unless they
have obtained sufficient understanding of their clients
cause. A careful investigation and examination of the facts
must first be had before any legal opinion be given by the
lawyer to the client.
To avoid breach of legal ethics, a lawyer should keep any
business, in which is engaged in concurrently with the
practice of law, entirely separate and apart from the latter.
Page 256
[A.C. No. 4763. March 20, 2003]
DR. GIL Y. GAMILLA, NORMA S. CALAGUAS, IRMA E.
POTENCIANO, EDITHA OCAMPO, LUZ DE GUZMAN, GLICERIA
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
BALDRES, FERDINAND LIMOS, MA. LOURDES C. MEDINA,
HIDELITA GABO, CORAZON CUI, REMEDIOS T. GARCIA, RENE
ARNEJO, RENE LUIS TADLE, LAURA ABARA, PHILIP AGUINALDO,
BENEDICTA ALAVA, LEONCIO CASAL, CARMELITA ESPINA,
ZENAIDA FAMORCA, CELSO NIERA, CESAR REYES, NATIVIDAD
SANTOS and MAFEL YSRAEL, complainants, vs. ATTY. EDUARDO
J. MARIO JR., respondent.
DECISION
BELLOSILLO, J.:
THIS DISBARMENT CASE EMANATED from an intra-union leadership
dispute some seventeen (17) years ago that spilled over to the instant
complaint alleging impropriety and double-dealing in the disbursement
of sums of money entrusted by the University of Sto. Tomas to
respondent Atty. Eduardo J. Mario Jr. as president of the UST Faculty
Union and his core of officers and directors for distribution among faculty
members of the university.[1]
For a sense of history, sometime in 1986 respondent Atty. Mario Jr. as
president of the UST Faculty Union and other union officers entered into
a collective bargaining agreement with the management of UST for the
provision of economic benefits amounting to P35 million. Instead of
creating a harmonious relationship between the contracting parties, the
collective bargaining agreement regrettably engendered disputes arising
from the interpretation and implementation thereof one of which even
reached this Court.[2]
The 1986 collective bargaining agreement expired in 1988 but efforts to
forge a new one unfortunately failed. In 1989 the faculty members of UST
went on strike and as a counter-measure UST terminated the
employment of sixteen (16) officers and directors of the UST Faculty
Union including respondent. The dismissal precipitated anew bitter legal
battles which were resolved by this Court in favor of the dismissed
employees by ordering their reinstatement with back wages.[3]
In 1990 Secretary of Labor Ruben D. Torres prescribed the terms and
conditions of a five (5)-year collective bargaining agreement between
UST and the UST Faculty Union retroactive to 1988 when the 1986
collective bargaining agreement expired. In the same year, the
administration of UST and the UST Faculty Union also entered into a
compromise agreement for the payment of P7,000,000.00 from
which P5,000,000.00 was intended to settle the back wages and other
claims of the sixteen (16) union officers and directors of the UST Faculty
Union, including herein respondent, who were earlier ordered reinstated
by this Court, and the sum of P2,000,000.00 to satisfy the remaining
obligations of UST under the 1986 collective bargaining agreement. It
appears from the record that only P5,000,000.00 for the back wages and
other claims of respondent Atty. Mario and other concerned union
officers and directors was paid immediately by UST while the satisfaction
of the balance of P2,000,000.00 was apparently deferred to some
unspecified time.
In 1992 UST and the UST Faculty Union executed a memorandum of
agreement to settle the salary increases and other benefits under the
collective bargaining agreement effective 1988 for the period 1 June
1991 to 31 May 1993 for a total of P42,000,000.00. It was agreed that
the benefits accruing from 1 June 1991 to 31 October 1992 were to be
taken from the sum of P42,000,000.00 which UST would release directly
to the faculty members, while the remainder of the P42,000,000.00
package would be ceded by UST to the UST Faculty Union which would
then disburse the balance to cover the benefits from 1 November 1992
to 31 May 1993. The memorandum of agreement also charged the
amount of P2,000,000.00 agreed upon in the 1990 compromise
agreement as well as the attorneys fees of Atty. Mario
worth P4,200,000.00 against the P42,000,000.00 outlay.
In accordance with the memorandum of agreement, UST took care of
the disbursement of P20,226,221.60 from the total commitment
of P42,000,000.00 to pay for the following expenses: (a) P2,000,000.00
as payment for unpaid obligations to faculty members under the 1986
collective bargaining agreement; (b) P13,833,597.96 for the salary
increases of faculty members from 1 June 1991 to 31 October 1992;
PINEDAPCGRNMAN
(c) P192,623.64 for telephone, electricity and water billings; and,
(d) P4,200,000.00 paid to the UST Faculty Union as attorneys fees. The
expenses left a collectible sum of P21,773,778.40 from the obligation
of P42,000,000.00. The university however relinquished
only P18,038,939.37 to the UST Faculty Union which wasP3,734,839.03
short of the balance of P21,773,778.40. In the meantime, the UST
Faculty Union placed P9,766,570.01 of the amount received from UST
in the money market to earn as it did make P1,146,381.27 in interest.
For benefits corresponding to 1 November 1992 to 31 May 1993, the
UST Faculty Union charged against the short-changed amount
of P18,038,939.37 a total of P16,723,638.27 consisting of the following
expenses: (a) P10,521,800.64 as the amount paid for salary increases
beginning 1 November 1992 to 31 May 1993; (b) P578,296.31 which was
refunded to the faculty members whose salaries were reduced as a result
of their participation in the 1989 strike; (c) P2,045,192.97 as amount paid
to the faculty members representing their December 1992 bonus; and,
(d) P3,578,348.35 for reimbursements to the University of Santo
Tomas. The expenses left a balance of P5,050,140.13, i.e., the
remainder of P1,315,301.10 out of theP18,038,939.37 earlier turned
over by UST to the UST Faculty Union, plus the deficit amount
of P3,734,839.03 which UST later turned over to the UST Faculty Union
after previously failing to deliver the amount. To the sum
of P5,050,140.13, the UST Faculty Union added the interest earnings
of P1,146,381.27 from money market investments as well as the amount
ofP192,632.64 representing the disallowed amount of expenses earlier
deducted by UST from the P42,000,000.00 package. All in all, the money
left in the possession of the UST Faculty Union was P6,389,154.04
which it distributed among the faculty members in 1994.
Complainants as members of the UST Faculty Union questioned the
alleged lack of transparency among the officers and directors of the
union in the management and disbursement of the monetary benefits for
the faculty members. They initiated two (2) complaints with the Office of
the Regional Director, National Capital Region, Department of Labor and
Employment, one on 18 October 1995, docketed as Case No. NCR-OD-
M-9412-022, and another, on 16 November 1996, docketed as Case No.
NCR-OD-M-9510-028. In both pleadings, they prayed for the expulsion
of the officers and directors of the union led by respondent Atty. Mario
because of their alleged failure to account for the balance of
the P42,000,000.00 ceded to them by UST and the attorneys fees
amounting to P4,200,000.00 which they deducted from the benefits
allotted to faculty members.[4]
On 2 July 1997 complainants filed the instant complaint for disbarment
against Atty. Mario accusing him of (a) compromising their entitlements
under the 1986 collective bargaining agreement without the knowledge,
consent or ratification of the union members, and worse, for
only P2,000,000.00 when they could have received more
than P9,000,000.00; (b) failing to account for the P7,000,000.00
received by him and other officers and directors in the UST Faculty Union
under the 1990 compromise agreement; (c) lack of transparency in the
administration and distribution of the remaining balance of
the P42,000,000.00 package under the 1992 memorandum of
agreement; (d) refusal to remit and account for the P4,200,000.00 in
favor of the faculty members although the amount was denominated as
attorneys fees. Complainants asserted that respondent violated Rules
1.01[5] and 1.02[6] of Canon 1; Rule 15.08[7]of Canon 15; Rules
16.01,[8] 16.02[9] and 16.03[10] of Canon 16; and Rule 20.04[11] of Canon
20, of the Code of Professional Responsibility.
On 4 November 1997, after several extensions Atty. Mario filed his
comment on the complaint. He alleged that the issues raised therein
were the same issues involved in the two (2) complaints before the
Bureau of Labor Relations and therefore constituted forum-shopping,
and further explained that he had adequately accounted for the
disbursement of the money demanded by complainants.
On 18 March 1998 we referred the disbarment complaint and the
Page 257
comment thereon to the Integrated Bar of the Philippines for
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LEGAL ETHICS
investigation, report and recommendation within ninety (90) days from
notice thereof.
On 18 May 1999 we received the Report of IBP Commissioner Lydia A.
Navarro as well as the Resolution of 30 March 1999 of the IBP Board of
Governors adopting and approving theReport which found the complaint
meritorious and suspended respondent Atty. Mario from the practice of
law until such time that the required detailed accounting of the
questioned remittances made by UST to the UST [Faculty Union] during
his incumbency as President and Legal Counsel has been officially
submitted and reported to the UST [Faculty Union] and to the IBP.
On 7 September 1999 respondent filed his comment on the
IBP Report and Resolution and alleged the same contentions he
previously asserted. On 27 October 1999 we referred the case back to
the IBP for a more detailed investigation and submission of report and
recommendation within sixty (60) days from notice.
In the meantime, or on 27 May 1999, the Regional Director found merit
in the two (2) complaints docketed as Case No. NCR-OD-M-9412-022
and Case No. NCR-OD-M-9510-028 and ordered the expulsion of
respondent and the other officers and directors of the union led by
respondent Atty. Mario because of their failure to account for the balance
of the P42,000,000.00 that had been delivered to them by the
management of UST, and their collection of exorbitant and illegal
attorneys fees amounting to P4,200,000.00.[12]
On 9 March 2000 the Bureau of Labor Relations in the appeal docketed
as BLR-A-TR-52-25-10-99 set aside the Order of the Regional
Director. It found that the balance of theP42,000,000.00 which UST
delivered to the UST Faculty Union had been fully and adequately
accounted for by respondent and the other officers and directors of the
union.[13] Nonetheless, the Bureau of Labor Relations ordered
respondent and the other officers and directors of the union to distribute
the attorneys fees of P4,200,000.00 among the faculty members and to
immediately hold the elections for union officers and directors in view of
the expiration of their respective terms of office.
On 16 March 2001 the Decision of the Bureau of Labor Relations was
affirmed in toto by the Court of Appeals in CA-G.R. SP No.
60657.[14] The Decision of the Court of Appeals was elevated to this
Court, docketed G.R. No. 149763, where the case is allegedly still
pending resolution.
On 25 September 2002 we received the detailed Report and
Recommendation of IBP Commissioner Lydia A. Navarro and the
IBP Resolution of 3 August 2002 of the Board of Governors adopting and
approving the Report which recommended the lifting of Atty. Marios
suspension from law practice since he had sufficiently accounted for the
funds in question.
For a start, it appears that complainants did not file a petition with this
Court to review the IBP Resolution exonerating respondent from the
accusations against him and lifting his suspension from the practice of
law, an action otherwise required under Sec. 12, Rule 139-B of the Rules
of Court if the case against respondent could still proceed in this
Court.Nevertheless since the IBP Resolution is merely
recommendatory, and considering further the instructional value of this
case to members of the Bench, many of whom are engaged
simultaneously in other businesses or professions, we find it prudent and
judicious to decide the instant case once and for all.
In fine, there are ethical lapses on the part of respondent Atty. Eduardo
J. Mario Jr. in the manner by which he secured the P7,000,000.00 by
virtue of the compromise agreement and the P4,200,000.00 attorneys
fees under the memorandum of agreement. Although the record shows
that the Bureau of Labor Relations found respondent as having
adequately accounted for the disbursement of the funds which the UST
Faculty Union received through the series of agreements with the
management of UST, this Court believes that Atty. Mario failed to avoid
conflict of interests, first, when he negotiated for the compromise
agreement wherein he played the diverse roles of union president, union
attorney and interested party being one of the dismissed employees
seeking his own restitution, and thereafter, when he obtained the
PINEDAPCGRNMAN
attorneys fees of P4,200,000.00 without full prior disclosure of the
circumstances justifying such claim to the members of the UST Faculty
Union.
As one of the sixteen (16) union officers and directors seeking
compensation from the University of Santo Tomas for their illegal
dismissal, respondent was involved in obvious conflict of interests when
in addition he chose to act as concurrent lawyer and president of the
UST Faculty Union in forging the compromise agreement. The test of
conflict of interest among lawyers is whether the acceptance of a new
relation will prevent an attorney from the full discharge of his duty of
undivided fidelity and loyalty to his client or invite suspicion of
unfaithfulness or double-dealing in the performance thereof.[15] In the
same manner, it is undoubtedly a conflict of interests for an attorney to
put himself in a position where self-interest tempts, or worse, actually
impels him to do less than his best for his client.
Thus it has been held that an attorney or any other person occupying
fiduciary relations respecting property or persons is utterly disabled from
acquiring for his own benefit the property committed to his custody for
management.[16] This rule is entirely independent of whether fraud has
intervened as in fact no fraud need be shown; no excuse will be heard
from an attorney because the rule stands on the moral obligation to
refrain from placing oneself in positions that ordinarily excite conflict
between self-interest and integrity.
Necessarily, a lawyer cannot continue representing a client in an action
or any proceeding against a party even with the clients consent after the
lawyer brings suit in his own behalf against the same defendant if it is
uncertain whether the defendant will be able to satisfy both
judgments.[17] No doubt, a lawyer is not authorized to have financial
stakes in the subject matter of the suit brought in behalf of his client.[18]
In the instant case, quite apart from the issue of validity of the 1990
compromise agreement, this Court finds fault in respondents omission of
that basic sense of fidelity to steer clear of situations that put his loyalty
and devotion to his client, the faculty members of UST, open to
question. Atty. Mario both as lawyer and president of the union was duty
bound to protect and advance the interest of union members and the
bargaining unit above his own. This obligation was jeopardized when his
personal interest as one of the dismissed employees of UST complicated
the negotiation process and eventually resulted in the lopsided
compromise agreement that rightly or wrongly brought money to him and
the other dismissed union officers and directors, seemingly or otherwise
at the expense of the faculty members.
The facts would affirm this observation. In brokering the compromise
agreement, respondent received P5,000,000.00 as compensation for
the dismissed union officials while onlyP2,000,000.00 apparently settled
USTs obligations in favor of the faculty members under the 1986
collective bargaining agreement when their original claim amounted to at
leastP9,000,000.00. Worse, the P2,000,000.00 concession for
accountabilities demandable long ago in 1986 was paid only in 1992
under the memorandum of agreement, or a period of more than two (2)
years after the execution of the compromise agreement, in contrast to
the immediate payment of the P5,000,000.00 to Atty. Mario and the other
union officers and directors.
Respondent Atty. Mario ought to have disclosed to the members of the
UST Faculty Union, if not the entire bargaining unit of faculty members,
his interest in the compromise agreement as one of the dismissed union
officers seeking compensation for the claim of back wages and other
forms of damages, and also the reasons for reducing the claim of the
faculty members from more than P9,000,000.00 to
only P2,000,000.00. As the record shows, the explanations for
respondents actions were disclosed only years after the consummation
of the compromise agreement, particularly only after the instant
complaint for disbarment was filed against him, when the accounting
should have been forthcoming either before or during the settlement of
the labor case against the management of UST.
Page 258
Equally important, since respondent and the other union officers and
directors were to get for themselves a lions share of the compromise as
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
they ultimately did, Atty. Mario should have unambiguously divulged and
made clear to his client the compelling probability of conflict of
interests. He should have voluntarily turned over the reins of legal
representation to another lawyer who could have acted on the matter
with a deep sense of impartiality over the several claims against UST
and an unfettered commitment to the cause of the faculty members.
Furthermore, there was lack of notice and transparency in respondents
dual role as lawyer and president of the UST Faculty Union when he
obtained P4,200,000.00 as attorneys fees.Without ruling on the validity
of the collection of attorneys fees so as not to pre-empt the decision in
G.R. No. 149763 on this issue, the record does not show any justification
for such huge amount of compensation nor any clear differentiation
between his legal services and his tasks as union president comprising
in all probability the same duties for which he had collected a hefty
compensation as attorney for the union.
The situation of Atty. Mario is not any different from that of an executor
or administrator of an estate who may not charge against the estate any
professional fee for legal services rendered by him because his efforts
as such are already paid for in his capacity as executor or
administrator.[19] Indeed, he could have avoided complaints and
perceptions of self-enrichment arising from the levy of attorneys fees by
spelling out the terms and bases for the claim of P4,200,000.00 since
the compensation for his services as president of the union should have
otherwise covered his legal services as well.
Regardless of the motivations of respondent in perfecting the
compromise agreement or demanding the inexplicable attorneys fees,
his actions were not transparent enough to allow the bargaining unit
ample information to decide freely and intelligently. Clearly, he violated
Canon 15 of the Code of Professional Responsibility requiring every
lawyer to observe candor, fairness and loyalty in all his dealings and
transactions with his clients. Lawyers are vanguards in the bastion of
justice so they are without doubt expected to have a bigger dose of
service-oriented conscience and a little less of self-interest.
As indispensable part of the system of administering justice, attorneys
must comply strictly with the oath of office and the canons of professional
ethics - a duty more than imperative during these critical times when
strong and disturbing criticisms are hurled at the practice of law. The
process of imbibing ethical standards can begin with the simple act of
openness and candor in dealing with clients, which would progress
thereafter towards the ideal that a lawyers vocation is not synonymous
with an ordinary business proposition but a serious matter of public
interest.
The evidence on record proves that Atty. Mario failed to disclose at
crucial moments significant information about the manner by which he
secured the P7,000,000.00 by virtue of the compromise agreement and
the P4,200,000.00 attorneys fees under the memorandum of
agreement. A simple accounting of the money that he and others
concerned received from UST, as well as an explanation on the details
of the agreements, would have enlightened the faculty members about
the probability of conflict of interests on respondents part and guided
them to look for alternative actions to protect their own interests.
In light of the irrefragable fact of respondents misdemeanor, a possible
mitigation of his actionable conduct was that the attorneys fees and the
compromise agreement were negotiated and finalized under the most
strenuous circumstances where his leadership and that of his core
officers and directors were incessantly challenged by complainants
allegedly aided by factions within UST itself. He might also have believed
that the settlement achieved immense benefits for his constituents which
would not have been otherwise obtained if he had chosen to relinquish
the rein of legal representation to some other lawyer. Finally, it was not
improbable for him to suppose though wrongly that he could represent
and in some manner serve the interests of all of them, including his own,
by pushing for and seeking the approval of the agreements himself. [20]
We reiterate that the objective of a disciplinary case is not so much to
punish the individual attorney as to protect the dispensation of justice by
sheltering the judiciary and the public from the misconduct or inefficiency
PINEDAPCGRNMAN
of officers of the court. Restorative justice not retribution is our goal in
this type of proceedings. In view of this, instead of taking a more stern
measure against respondent, a reprimand and a warning would be
sufficient disciplinary action in accordance with our ruling in Sumangil v.
Sta. Romana.[21] Hence, Atty. Mario is admonished to refrain from all
appearances and acts of impropriety including circumstances indicating
conflict of interests, and to behave at all times with circumspection and
dedication befitting a member of the Bar, especially observing candor,
fairness and loyalty in all transactions with his client.[22]
WHEREFORE, respondent Atty. Eduardo J. Mario Jr. is
REPRIMANDED for his misconduct with a warning that a more drastic
punishment will be imposed on him upon a repetition of the same act.
SO ORDERED.
CANON 16 A lawyer shall hold in trust all moneys and properties
of his client that may come into his possession.
Art. 1491. The following persons cannot acquire by purchase, even
at a public or judicial auction, either in person or through the
mediation of another:
(1) The guardian, the property of the person or persons who may
be under his guardianship;
(2) Agents, the property whose administration or sale may have
been entrusted to them, unless the consent of the principal has
been given;
(3) Executors and administrators, the property of the estate under
administration;
(4) Public officers and employees, the property of the State or of
any subdivision thereof, or of any government-owned or controlled
corporation, or institution, the administration of which has been
intrusted to them; this provision shall apply to judges and
government experts who, in any manner whatsoever, take part in
the sale;
(5) Justices, judges, prosecuting attorneys, clerks of superior and
inferior courts, and other officers and employees connected with
the administration of justice, the property and rights in litigation or
levied upon an execution before the court within whose jurisdiction
or territory they exercise their respective functions; this prohibition
includes the act of acquiring by assignment and shall apply to
lawyers, with respect to the property and rights which may be the
object of any litigation in which they may take part by virtue of their
profession.
(6) Any others specially disqualified by law.
Rule 16.01 A lawyer shall account for all money or property
collected or received for or from the client.
ATTY. RICARDO M. A.C. No. 7820
SALOMON, JR.,
Complainant, Present:
QUISUMBING, J., Chairperson,
CARPIO MORALES,
- versus - TINGA,
VELASCO, JR., and
BRION, JJ.
Promulgated:
ATTY. JOSELITO C. FRIAL,
Respondent. September 12, 2008
x-----------------------------------------------------------------------------------------x
DECISION
VELASCO, JR., J.:
Page 259
In his sworn complaint[1] filed before the Integrated Bar of the Philippines
(IBP) on December 22, 2006, complainant Atty. Ricardo M. Salomon, Jr.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
charged respondent Atty. Joselito C. Frial with violating his Lawyers Oath
and/or gross misconduct arising from his actuations with respect to two
attached vehicles. Complainant, owner of the vehicles in question, asked
that Atty. Frial be disbarred.
The instant complaint has its beginning in the case, Lucy Lo v. Ricardo
Salomon et al., docketed as Civil Case No. 05-111825 before the
Regional Trial Court in Manila, in which a writ of preliminary attachment
was issued in favor of Lucy Lo, Atty. Frials client. The writ was used to
attach two (2) cars of complainanta black 1995 Volvo and a green 1993
Nissan Sentra.
According to Atty. Salomon, the attaching sheriff of Manila, instead of
depositing the attached cars in the court premises, turned them over to
Atty. Frial, Los counsel. Atty. Salomon claimed that on several
occasions, the Nissan Sentra was spotted being used by unauthorized
individuals. For instance, on December 26, 2005, barangay captain
Andrew Abundo saw the Nissan Sentra in front of a battery shop
on Anonas St., Quezon City. On February 18, 2006, Architect Roberto
S. Perez and three others saw and took video and photo shots of the
same car while in the Manresa Shell station at P. Tuazon Blvd. corner
20th Avenue, Quezon City. Also sometime in June 2006, Robert M.
Perez, complainants driver, saw the said car in another Shell station
near Kamias Street. On December 16, 2006, Arlene Carmela M.
Salomon spotted it driven by bondsman Ferdinand Liquigan allegedly
with Atty. Frials consent. As Atty. Salomon further alleged, when the
misuse of the car was reported, paving for Liquigans apprehension, Atty.
Frial, in a letter, acknowledged having authorized Liquigan to bring the
car in custodia legis to a mechanic.
As to the Volvo, Atty. Salomon averred that during mediation, Atty. Frial
deliberately withheld information as to its whereabouts. As it turned out
later, the Volvo was totally destroyed by fire, but the court was not
immediately put on notice of this development.
In his Answer,[2] Atty. Frial admitted taking custody of the cars thru his
own undertaking, without authority and knowledge of the court. The
subject vehicles, according to him, were first parked near the YMCA
building in front of the Manila City Hall where they remained for four
months. He said that when he went to check on the vehicles condition
sometime in December 2005, he found them to have been infested and
the wirings underneath the hoods gnawed by rats. He denied personally
using or allowing others the use of the cars, stating in this regard that if
indeed the Nissan Sentra was spotted on Anonas St., Quezon
City on December 26, 2005, it could have been the time when the car
was being transferred from the YMCA. The February 18, 2006 and June
2006 sightings, so Atty. Frial claimed, possibly occurred when the Nissan
Sentra was brought to the gas station to be filled up. He said that the car
could not have plausibly been spotted in Project 3 on December 13,
2006, parked as it was then in front of Liquigans house for mechanical
check-up.
During the mandatory conference/hearing before the IBP Commission
on Bar Discipline, the parties agreed on the following key issues to be
resolved: (1) whether or not Atty. Frial used the cars for his personal
benefit; and (2) whether or not Atty. Frial was guilty of infidelity in the
custody of the attached properties.
Thereafter and after the submission by the parties of their respective
position papers, the Commission submitted a Report dated October 9,
2007 which the IBP Board of Governors forthwith adopted and then
transmitted to this Court. In the Report, the following were deduced from
the affidavits of Andrew Abundo, Roberto Perez, Robert Perez, and
Dante Batingan: (1) at no time was Atty. Frial seen driving the Sentra;
(2) Abundo learned that at that time the car was spotted at the battery
shop, the unnamed driver bought a new battery for the car which was
not inappropriate since a battery was for the preservation of the car; (3)
PINEDAPCGRNMAN
Atty. Frial admitted that the Nissan Sentra was seen gassed up on
February 18, 2006 and in June 2006 and there was no reason to gas up
the Nissan Sentra on those times unless it was being used; (4) Roberto
Perez said the Nissan Sentra was used to buy goats meat; and (5)
photos of the Nissan Sentra in different places obviously showed it was
being used by others.
In the same Report, the Commission observed that while there is
perhaps no direct evidence tying up Atty. Frial with the use of the Nissan
Sentra, the unyielding fact remains that it was being used by other
persons during the time he was supposed to have custody of it. In
addition, whoever drove the Nissan Sentra on those occasions must
have received the car key from Atty. Frial. When Atty. Frial took custody
of the Nissan Sentra and Volvo cars, he was duty bound to keep and
preserve these in the same condition he received them so as to fetch a
good price should the vehicles be auctioned.
As to the burnt Volvo, Atty. Frial admitted receiving it in excellent
condition and that there was no court order authorizing him to remove
the car from the YMCA premises. Admitted too was the fact that he
secured the release of the Volvo on the strength alone of his own written
undertaking;[3] and that the car was almost totally destroyed by fire
onFebruary 4, 2006 at 1:45 a.m.[4] while parked in his residence. He
could not, however, explain the circumstances behind the destruction,
but admitted not reporting the burning to the court or the sheriff. While
the burning of the car happened before the mediation hearing, Atty. Frial,
upon inquiry of Atty. Salomon, did not give information as to the
whereabouts of the cars.
The destruction of the Volvo in Atty. Frials residence was not an ordinary
occurrence; it was an event that could have not easily escaped his
attention. Accordingly, there is a strong reason to believe that Atty. Frial
deliberately concealed the destruction of said vehicle from the court
during the hearings in Civil Case No. 05-111828, which were the
opportune times to reveal the condition of the Volvo car.
On the basis of the foregoing premises, the Commission concluded that
Atty. Frial committed acts clearly bearing on his integrity as a lawyer,
adding that he failed to observe the diligence required of him as
custodian of the cars. The Commission thus recommended that Atty.
Frial be suspended from the practice of law for one (1) year.
The findings and the recommendation of the Commission are well-taken.
A writ of attachment issues to prevent the defendant from disposing of
the attached property, thus securing the satisfaction of any judgment that
may be recovered by the plaintiff or any proper party.[5] When the objects
of the attachment are destroyed, then the attached properties would
necessarily be of no value and the attachment would be for naught.
From the evidence adduced during the investigation, there is no question
that Atty. Frial is guilty of grave misconduct arising from his violation of
Canon 11 of the Canons of Professional Ethics that states:
11. Dealing with trust property
The lawyer should refrain from any action whereby for his personal
benefit or gain he abuses or takes advantage of the confidence reposed
in him by his client.
Money of the client or collected for the client or other trust property
coming into the possession of the lawyer should be reported and
accounted for promptly and should not under any circumstances be
commingled with his own or be used by him. (Emphasis ours.)
Page 260
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
A lawyer is first and foremost an officer of the court. As such, he is
expected to respect the courts order and processes. Atty. Frial miserably
fell short of his duties as such officer. He trifled with the writ of attachment
the court issued.
Very patently, Atty. Frial was remiss in his obligation of taking good care
of the attached cars. He also allowed the use of the Nissan Sentra car
by persons who had no business using it. He did not inform the court or
at least the sheriff of the destruction of the Volvo car. What is worse is
that he took custody of them without so much as informing the court, let
alone securing, its authority.
For his negligence and unauthorized possession of the cars, we find Atty.
Frial guilty of infidelity in the custody of the attached cars and grave
misconduct. We must mention, at this juncture, that the victorious parties
in the case are not without legal recourse in recovering the Volvos value
from Atty. Frial should they desire to do so.
The Court, nevertheless, is not inclined to impose, as complainant urges,
the ultimate penalty of disbarment. The rule is that disbarment is meted
out only in clear cases of misconduct that seriously affect the standing
and moral character of a lawyer as an officer of the court and member of
the bar.[6] With the view we take of the case, there is no compelling
evidence tending to show that Atty. Frial intended to pervert the
administration of justice for some dishonest purpose.
Disbarment, jurisprudence teaches, should not be decreed where any
punishment less severe, such as reprimand, suspension, or fine, would
accomplish the end desired.[7]This is as it should be considering the
consequence of disbarment on the economic life and honor of the erring
person. In the case of Atty. Frial, the Court finds that a years suspension
from the practice of his legal profession will provide him with enough time
to ponder on and cleanse himself of his misconduct.
WHEREFORE, Atty. Joselito C. Frial is adjudged guilty of grave
misconduct and infidelity in the custody of properties in custodia legis.
He is hereby SUSPENDED from the practice of law for a period of one
(1) year effective upon his receipt of this Decision. Let notice of this
Decision be entered in his personal record as an attorney with the Office
of the Bar Confidant and notice of the same served on the IBP and on
the Office of the Court Administrator for circulation to all the courts
concerned.
A.C. No. 7057 July 25, 2006
DAVID L. ALMENDAREZ, JR., complainant,
vs.
ATTY. MINERVO T. LANGIT, respondent.
DECISION
CARPIO, J.:
The Case
On 5 May 2004, David L. Almendarez, Jr. ("complainant") filed this
complaint-affidavit1 before the Integrated Bar of the Philippines (IBP),
seeking the disbarment of Atty. Minervo T. Langit ("respondent") for acts
unbecoming a lawyer.
The facts are undisputed:
Complainant, as attorney-in-fact of his mother Pura Lioanag Vda. de
Almendarez, was the plaintiff in an ejectment case before the Municipal
Trial Court of Dagupan City, Branch 2 ("trial court"). Respondent served
as complainant's counsel. While the case was pending, defendant Roger
Bumanlag ("Bumanlag") deposited monthly rentals for the property in
dispute to the Branch Clerk of Court.
On 3 February 1994, the trial court rendered a decision in the ejectment
case based on a compromise agreement executed by complainant and
Bumanlag. On 18 December 1995, the trial court issued an alias writ of
execution for the satisfaction of the decision. A court order2 dated 2
March 2000 granted the Omnibus Motion for Execution and Withdrawal
PINEDAPCGRNMAN
of Deposited Rentals filed by respondent as complainant's counsel.
Respondent filed a second motion for withdrawal of deposited rentals,
which the trial court also granted on 16 March 2000.
Sometime in May 2003, complainant learned that respondent was able
to withdraw the rentals deposited by Bumanlag. Felicidad Daroy
("Daroy"), Officer-in-Charge Clerk of Court, confirmed this to
complainant who received from Daroy copies of the two withdrawal slips
drawn from the trial court's savings account. One slip dated 10 March
2000 was for P28,000,3 and another slip dated 19 April 2000 was
for P227,000.4 Thus, respondent received a total of P255,000, as
evidenced by two receipts5 signed by him. The withdrawals were made
through Daroy's authorized representative Antonia Macaraeg, but Daroy
personally delivered the money to respondent. Respondent did not
inform complainant of these transactions.
Complainant, through his new counsel Atty. Miguel D. Larida, sent
respondent on 30 June 2003 a final demand letter for the accounting and
return of the P255,000.6 Respondent failed to reply.
Hence, complainant filed this case for disbarment against respondent for
failing to account for complainant's funds. Complainant further accuses
respondent of neglecting to pursue the implementation of the writ of
execution issued in the ejectment case.
On 12 May 2004, IBP Director for Bar Discipline Rogelio A. Vinluan ("IBP
Director Vinluan") ordered respondent to submit his Answer to the
complaint. Respondent did not file an answer despite receipt of the
notice.7
On 4 October 2004, IBP Investigating Commissioner Caesar R. Dulay
("IBP Commissioner Dulay") notified the parties to appear before him for
a mandatory conference on 15 November 2004, later reset to 17 January
2005. Only complainant appeared at the conference, prompting IBP
Commissioner Dulay to order the conference terminated and to declare
that respondent had waived his right to participate in the proceedings.
IBP Commissioner Dulay directed the parties to file their respective
position papers. Complainant submitted his position paper on 22 March
2005. Again, respondent took no action.
Findings and Recommendation of the IBP
On 8 June 2005, IBP Commissioner Dulay submitted his Report and
Recommendation ("Report")8 with the finding that respondent failed to
account for money he held in trust for complainant. The Report
considered complainant's evidence "clear and convincing" enough to
justify disciplinary action against respondent for violation of Rule 16.01
of the Code of Professional Responsibility. IBP Commissioner Dulay
recommended that respondent be declared guilty of gross misconduct
and suspended for one year, aside from being ordered to render an
accounting of the money he had received.
In a Resolution9 dated 17 December 2005, the IBP Board of Governors
approved the Report, with the modification that the penalty of suspension
be increased to two years.
The Court's Ruling
We sustain the findings of the IBP.
Respondent committed a flagrant violation of his oath when he received
the sum of money representing the monthly rentals intended for his
client, without accounting for and returning such sum to its rightful owner.
Respondent received the money in his capacity as counsel for
complainant. Therefore, respondent held the money in trust for
complainant. The Code of Professional Responsibility ("Code") states:
CANON 16 A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND
PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS
POSSESSION.
Rule 16.01A lawyer shall account for all money or property collected
or received for or from the client.
Rule 16.03A lawyer shall deliver the funds and property to his client
when due or upon demand. However, he shall have a lien over the funds
and may apply so much thereof as may be necessary to satisfy his lawful
fees and disbursements, giving notice promptly thereafter to his client.
Page 261
He shall also have a lien to the same extent on all judgments and
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
executions he has secured for his client as provided for in the Rules of
Court.
Respondent should have immediately notified complainant of the trial
court's approval of the motion to withdraw the deposited rentals. Upon
release of the funds to him, respondent could have collected any lien
which he had over them in connection with his legal services, provided
he gave prompt notice to complainant. A lawyer is not entitled to
unilaterally appropriate his client's money for himself by the mere fact
that the client owes him attorney's fees.10 In this case, respondent did
not even seek to prove the existence of any lien, or any other right that
he had to retain the money.
Respondent's failure to turn over the money to complainant despite the
latter's demands gives rise to the presumption that he had converted the
money for his personal use and benefit. This is a gross violation of
general morality as well as of professional ethics, impairing public
confidence in the legal profession.11 More specifically, it renders
respondent liable not only for violating the Code but also for contempt,
as stated in Section 25, Rule 138 of the Rules of Court:
SEC. 25. Unlawful retention of client's funds; contempt When an
attorney unjustly retains in his hands money of his client after it has been
demanded he may be punished for contempt as an officer of the Court
who has misbehaved in his official transactions; but proceedings under
this section shall not be a bar to a criminal prosecution.
Additionally, respondent failed to observe Canon 1712 of the Code, which
obligates the lawyer to take up the cause of his client with entire zeal and
devotion. It seems that after respondent received the withdrawn
deposits, he never contacted complainant again. He did not pursue the
implementation of the writ of execution issued in the ejectment case, to
the prejudice of complainant. By his inaction, respondent violated the
trust and confidence reposed in him. For in agreeing to be complainant's
counsel, respondent undertook to take all steps necessary to safeguard
complainant's interest in the case.
The misconduct of respondent is aggravated by his unjustified refusal to
heed the orders of the IBP requiring him to file an answer to the
complaint-affidavit and, afterwards, to appear at the mandatory
conference. Although respondent did not appear at the conference, the
IBP gave him another chance to defend himself through a position paper.
Still, respondent ignored this directive, exhibiting a blatant disrespect for
authority. Indeed, he is justly charged with conduct unbecoming a
lawyer, for a lawyer is expected to uphold the law and promote respect
for legal processes.13 Further, a lawyer must observe and maintain
respect not only to the courts, but also to judicial officers and other duly
constituted authorities,14 including the IBP. Under Rule 139-B of the
Rules of Court, the Court has empowered the IBP to conduct
proceedings for the disbarment, suspension, or discipline of attorneys.
The relation of attorney and client is highly fiduciary, requiring utmost
good faith, loyalty, and fidelity on the part of the attorney. Respondent
miserably failed in this regard. Instead, he demonstrated a lack of
integrity, care, and devotion required by the legal profession from its
members. Whenever a lawyer is no longer worthy of the trust and
confidence of the public, this Court has the right and duty to withdraw his
privilege as officer of the Court and member of the Bar.15
WHEREFORE, we find Atty. Minervo T. Langit GUILTY of violating
Canons 1, 11, 16, and 17 of the Code of Professional Responsibility.
We SUSPEND respondent from the practice of law for two years
effective upon finality of this Decision. We ORDER respondent
to RESTITUTE, within 30 days from finality of this Decision,
complainant's P255,000, with interest at 12% per annum from 30 June
2003 until fully paid. We DIRECTrespondent to submit to the Court proof
of payment within 15 days from payment of the full amount.
Let copies of this Decision be furnished all courts, the Office of the Bar
Confidant, as well as the Integrated Bar of the Philippines, for their notice
and guidance.
SO ORDERED.
PINEDAPCGRNMAN
[A.C. No. 4904. August 12, 2004]
ANA A. CHUA and MARCELINA HSIA, complainants, vs. ATTY.
SIMEON M. MESINA, JR., respondent.
DECISION
PER CURIAM:
By a verified complaint[1] received by the Office of the Bar Confidant on
May 5, 1998,[2] Ana Alvaran Chua and Marcelina Hsia administratively
charged Atty. Simeon M. Mesina, Jr., for breach of professional ethics,
gross professional misconduct, and culpable malpractice.
As related by complainants, the following facts gave rise to the filing of
the complaint.
Respondent was, for years, Ana Alvaran Chua and her now deceased
husband Chua Yap Ans legal counsel and adviser upon whom they
reposed trust and confidence. They were in fact lessees of a building
situated at Burgos Street, Cabanatuan City (Burgos property) owned by
respondents family, and another property containing an area of 854 sq.
m., situated at Melencio Street, Cabanatuan City (Melencio property),
also owned by respondents family whereon they (spouses Chua)
constructed their house. These two properties were mortgaged by the
registered owner, respondents mother Felicisima Melencio vda. de
Mesina (Mrs. Mesina), in favor of the Planters Development Bank to
secure a loan she obtained.
As Mrs. Mesina failed to meet her obligation to the bank, respondent
convinced complainant Ana Chua and her husband to help Mrs. Mesina
by way of settling her obligation in consideration for which the Melencio
property would be sold to them at P850.00/sq. m.
Accommodating respondents request, the spouses Chua and their
business partner, herein co-complainant Marcelina Hsia, settled Mrs.
Mesinas bank obligation in the amount ofP983,125.40.
A Deed of Absolute Sale dated January 19, 1985[3] conveying the
Melencio property for P85,400.00 was thereafter executed by Mrs.
Mesina, whose name appears therein as Felicisima M. Melencio, in favor
of complainants.
As complainants were later apprised of the amount of capital gains tax
they were to pay, they consulted respondent about it. Respondent thus
suggested to them that another Deed of Absolute Sale should be
executed, antedated to 1979 before the effectivity of the law mandating
the payment of capital gains tax. As suggested by respondent, another
Deed of Absolute Sale antedated February 9, 1979[4] was executed by
Mrs. Mesina, whose name again appears therein as Felicisima M.
Melencio, in favor of complainants wherein the purchase price was also
indicated to be P85,400.00.
After liquidating the advances made by the Chua spouses in the
redemption of the MESINA properties, Mrs. Mesina was found to have
an existing balance due the spouses in the amount of P400,000.00, on
account of which they advised respondent about it. Respondent, by
Affidavit of February 18, 1986, acknowledged such obligation to be his
and undertook to settle it within two years.
Complainants were subsequently issued on January 21, 1986 a title over
the Melencio property.
Not long after the execution of the February 9, 1979 Deed of Absolute
Sale or in February 1986, one Juanito Tecson (Tecson) filed an
Affidavit[5] dated February 20, 1986 before the Cabanatuan City
Prosecutors Office charging respondents mother, the spouses Chua,
Marcelina Hsia and the two witnesses to the said Deed of Absolute Sale,
for Falsification of Public Document and violation of the Internal Revenue
Code. In his complaint affidavit, Tecson alleged that he was also a lessee
of the Melencio property and was, along with the Chua spouses,
supposed to purchase it but that contrary to their agreement, the property
was sold only to complainant and her co-complainant, to his
exclusion. Tecson went on to relate that the February 9, 1979 Deed of
Absolute Sale did not reflect the true value of the Melencio property and
was antedated to evade payment of capital gains tax.
Tecson submitted documents showing that indeed the July 9, 1979 Deed
Page 262
of Absolute Sale was antedated.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Respondent thereupon hatched a plan to dodge the falsification charge
against Mrs. Mesina et al. He proposed to complainants that they would
simulate a deed of sale of the Melencio property wherein complainants
would resell it to Mrs. Mesina.
Heeding the proposal of respondent, complainants executed a Deed of
Absolute Sale dated April 1, 1986[6] conveying to Felicisima M. Melencio
the Melencio property for P85,400.00.
A new title was accordingly issued on April 4, 1986 in the name of
Felicisima M. Melencio, the owners copy of which was entrusted to
complainants.
Tecson subsequently filed before the Cabanatuan City Prosecutors
Office an Affidavit of Desistance dated September 5, 1986[7] alleging that
his filing of the criminal complaint arose out of mere misunderstanding
and difference with herein complainants and their co-respondents and
he had no sufficient evidence against them.
Some years later or on May 2, 1990, respondent approached
complainants and told them that he would borrow the owners copy of
Mrs. Mesinas title with the undertaking that he would, in four months, let
Mrs. Mesina execute a deed of sale over the Melencio property in
complainants favor. In fact, respondent gave complainants a written
undertaking[8] dated May 2, 1990 reading:
Received the owners duplicate copy of TCT No. 4383 issued by the
Register of Deeds, Cabanatuan City registered in the name of Felicisima
Mesina, widow, consisting of about 854 square meters more or less
located at calle Melencio, Cabanatuan City from Mrs. Ana Chua and
Marcelina Hsia.
I promise to and undertake to have the Deed of Sale of the above-
mentioned property in favor of Ana
Chua and Marcelina Hsia to be signed by Mrs. Felicisima Mesina, withi
n four (4) months from datehereof so that the above-mentioned property
and title maybe transferred in the name of Ana Chua and Macelina Hsia.
(Underscoring supplied)
In the meantime, Mrs. Mesina died in the early part of 1991.
Despite respondents repeated promises to effect the transfer of title in
complainants name, he failed to do so. Complainants were later
informed that the Melencio property was being offered for sale to the
public.
The spouses Chua and complainant Marcelina Hsia thus filed on August
24, 1992 a Complaint[9] against respondent and his two siblings before
the Regional Trial Court (RTC) of Nueva Ecija in Cabanatuan City, for
Declaration of Nullity of Sale and Reconveyance of Real Property.
As of the time of the filing of the present administrative complaint in 1998,
the civil case against the Mesina siblings was still pending.
This Court, by Resolution of July 13, 1998,[10] directed respondent to file
Comment on the complaint within ten days.
By Resolution of December 2, 1998,[11] this Court, noting that the copy
of the Resolution of July 13, 1998 requiring respondent to comment on
the complaint sent to him at his office address at S. M. Mesina Law
Office, 30 Jupiter St., Paseo de Roxas, Bel-Air Subd., Makati City was
returned unserved with the notation Moved, considered the Resolution
of July 13, 1998 served on respondent by substituted service pursuant
to Rule 13, Section 8 of the 1997 Rules of Civil Procedure. Respondent
was accordingly deemed to have waived the filing of the required
comment.
By the same Resolution of December 2, 1998, the case was referred to
the Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation within ninety days.
The IBP, acting on the complaint, issued a notice of hearing on
September 14, 2001,[12] copy of which was sent to respondent at his
office address via registered mail, covered by Registry Receipt No. 2605
of the Meralco Post Office.[13] On the scheduled date of hearing,
complainants personally appeared with their counsel. Respondent failed
to show up.
Given the length of time that the case remained pending from its filing,
the IBP Commission on Bar Discipline, by Order of October 12,
2001,[14] directed complainants to just file their position paper with
PINEDAPCGRNMAN
affidavits and supporting documents in lieu of actual presentation of
witnesses and to serve a copy thereof to respondent at his last known
address.
In compliance with the IBP Order, complainants filed on April 1, 2002
their position paper,[15] annexed to which were photocopies of: 1) a May
5, 1993 Certification[16] issued by the Metrobank Cabanatuan Branch
certifying that it issued the demand drafts to the payees enumerated
below, which were debited from the account of Mr. Chua Yap An under
Savings Account No. 760:
D/D No. Payee Amount Date of Issue
214597 Planters Dev. Bank P 805,299.54 12-19-85
214760 Planters Dev. Bank 100,000.00 01-14-86
214761 Atty. Simeon Mesina, Jr. 77,826.10 01-14-86;
2) Affidavit dated February 18, 1986[17] of respondent acknowledging a
debt of P400,000.00 to complainant Ana Alvaran Chua and promising to
pay interest thereon within 2 years to commence upon the signing
thereof [February 16, 1998] and, in the event no partial or full payment
of the principal is made within 2 years, Ana Alvaran Chua is under no
obligation to pay any lease rentals over the lot situated in Burgos
Avenue, Cabanatuan City where the Oceanic Hardware Bldg. is
erected; 3) Deed of Absolute Sale dated January 19, 1985[18] and
4) Deed of Absolute Sale dated July 9, 1979,[19] both executed by
Felicisima M. Melencio in favor of complainant; 5) TCT No. T-
48114[20] issued by the Cabanatuan City in the name of complainants on
January 21, 1986; 6) Affidavit of Juanito C. Tecson[21] dated January 20,
1986 charging complainants et al. for Falsification of Public Documents;
7) Deed of Absolute Sale dated April 1, 1986 executed by complainants
in favor of Mrs. Mesina;[22] and 8) TCT No. T-48383issued on April 4,
1986 in the name of Felicisima M. Melencio;[23] and 9) Complaint of
spouses Chua Yap An and Ana Alvaran Chua and Marcelina Hsia, for
Declaration of Nullity of Deed of Sale and Reconveyance of Real
Property against respondent and his two siblings.[24]
A copy of complainants position paper was sent on March 18, 2002 to
respondent at his office address by registered mail covered by Registry
Receipt No. 5278.[25] There is no showing if respondent received this
mail matter.
The IBP once more scheduled, by notice of December 13, 2002,[26] a
hearing of the administrative case to January 15, 2003, copy of which
notice was sent to respondent at his office address by registered mail
covered by Registry Receipt No. 2953 issued by the Meralco Post
Office.[27]
On the scheduled hearing on January 15, 2003, the IBP Investigating
Commissioner, by Order of even date,[28] noted the presence of
complainants, and the absence of respondent, copy of the notice of
hearing to whom was returned unserved with the notation RTS-Moved.
The case was thereupon deemed submitted for report and
recommendation.
On June 21, 2003, the IBP passed Resolution No. XV-2003-
342[29] adopting and approving the report and recommendation of Atty.
Rebecca Villanueva-Maala, the Investigating Commissioner of the case.
In her March 3, 2003 Report and Recommendation,[30] Investigation
Commissioner Maala observed as follows:
A lawyer should not engage or participate on any unlawful, dishonest,
immoral or deceitful conduct. The moral character he displayed when he
applied for admission at the Bar must be maintained
incessantly. Otherwise, his privilege to practice the legal profession may
be withdrawn from him (Rule 1.01, Code of Professional Responsibility).
On the basis of the uncontroverted facts and evidence
presented, respondent
Atty. Simeon M. Mesina has committed gross misconduct which shows
him to be unfit for the office and unworthy of the privilege which his
license and law confer upon him,
and recommended that respondent be suspended for a period of One
(1) Year.
Page 263
This Court finds that indeed, respondent is guilty of gross misconduct.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS PINEDAPCGRNMAN
First, by advising complainants to execute another Deed of Absolute
Sale antedated to 1979 to evade payment of capital gains taxes, he
violated his duty to promote respect for law and legal processes,28 and A.C. No. 7337 September 29, 2014
not to abet activities aimed at defiance of the law;29 That respondent ROLANDO VIRAY, Complainant,
intended to, as he did defraud not a private party but the government is vs.
aggravating.30 ATTY. EUGENIO T. SANICAS, Respondent.
Second, when respondent convinced complainants to execute another RESOLUTION
document, a simulated Deed of Absolute Sale wherein they made it DEL CASTILLO, J.:
appear that complainants reconveyed the Melencio property to his This is a verified Complaint for Disbarment/Gross Immoral Conduct1 filed
mother, he committed dishonesty.31 with this Court on September 18, 2006 by complainant Rolando Viray
Third, when on May 2, 1990 respondent inveigled his own clients, the (complainant) against respondent Atty. Eugenio T. Sanicas
Chua spouses, into turning over to him the owners copy of his mothers (respondent).
title upon the misrepresentation that he would, in four months, have a Factual Antecedents
deed of sale executed by his mother in favor of complainants, he likewise Complainant alleges that he engaged the services of respondent relative
committed dishonesty. to a labor case2 he filed against Ester Lopez and Teodoro Lopez III
That the signature of Felicisima M. Melencio in the 1985 document32 and (spouses Lopez). On February 26, 2001, the Labor Arbiter ruled in favor
that in the 1979 document33 are markedly different is in fact is a badge of complainant and disposed of the case as follows:
of falsification of either the 1979 or the 1985 document or even both. WHEREFORE, premises considered, judgment is hereby rendered
A propos is this Courts following pronouncement in Nakpil v. Valdez34 ordering respondents Ester Lopez and Teodoro Lopez III to pay
As a rule, a lawyer is not barred from dealing with his client complainant Rolando Viray of the following, to wit:
but the business transaction must be characterized with utmost honesty 1. Backwages ........................... P146,726.67
and good faith. The measure of good faith which an attorney is require 2. Separation Pay ......................... 24,000.00
d toexercise in his dealings with his client is a much higher standard tha 3. Service Incentive Leave Pay ......... .1,538.46
t is required in business dealings where the parties trade at arms length 4. Attorney's Fees ........................ .17,226.51
. Business transactions between an attorney and his client are disfavored or a total amount of One Hundred Eighty Nine Thousand Fom Hw1dred
and discouraged by the policy of the law. Hence, courts carefully watch Ninety One Pesos & 64/100 (Pl89,491.60) [sic] to be deposited with the
these transactions to assure that no advantage is taken by a lawyer over Cashier of this Office, wjthin ten (10) days from receipt hereof
his client. This rule is founded on public policy for, by virtue of his office, All other claims are hereby denied for lack of merit.
an attorney is in an easy position to take advantage of the credulity and SO ORDERED.3
ignorance of his client. Thus, no presumption of innocence or Subsequently, an Alias Writ of Execution4 was issued relative to
improbability of wrongdoing is considered in an attorneys aforesaid decision. During the implementation of said writ, however,
favor.35 (Underscoring supplied) complainant discovered that respondent had already collected the total
Respondent having welched on his promise to cause the reconveyance amount of P95,000.00 from spouses Lopez. Respondent received said
of the Melencio property to complainants, consideration of whether he amount in the following manner:
should be ordered to honor such promise should be taken up in the civil Voucher
case filed for the purpose, the issue there being one of ownership while Date Amount Purpose
No.
that in the case at bar is moral fitness.37
In fine, respondent violated his oath of office and, more specifically, the 0210512004 7802 P20,000.00 Attorney's fees
following canons of the Code of Professional Responsibility:
CANON 1. A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY 02/13/2004 7833 10,000.00 Partial payment for
THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND judgment
LEGAL PROCESSES.
0212612004 7848 10,000.00 Partial payment for
Rule 1.01. - A lawyer shall not engage in unlawful, dishonest, immoral or
judgment
deceitful conduct.
Rule 1.02. - A lawyer shall not counsel or abet activities aimed at 03/12/2004 7894 20,000.00 Partial payment for
defiance of the law or at lessening confidence in the legal system. judgment
CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE
INTEGRITY AND DIGNITY OF THE LEGAL PROFESSION AND 0410212004 7932 5,000.00 Partial payment for
SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR. judgment
Rule 7.03. - A lawyer shall not engage in conduct that adversely reflects
on his fitness to practice law, nor shall he, whether in public or private 0410612004 7941 5,000.00 Partial payment for
life, behave in a scandalous manner to the discredit of the legal judgment
profession.
04/13/2004 7944 5,000.00 Partial payment for
CANON 15. A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND
judgment
LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS
CLIENTS. 04/16/2004 7954 10,000.00 Partial payment for
Rule 15.07. - A lawyer shall impress upon his client compliance with the judgment
laws and the principles of fairness.
CANON 17. A LAWYER OWES FIDELITY TO THE CAUSE OF HIS 0413012004 7977 10,000.00 Partial payment for
CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND judgment
CONFIDENCE REPOSED IN HIM.
WHEREFORE, respondent ATTY. SIMEON M. MESINA, JR. is, for Total Amount: P95,000.00
gross misconduct, hereby DISBARRED. Complainant also discovered that respondent misrepresented to
Let copies of this Decision be furnished all courts, the Integrated Bar of spouses Lopez that he is authorized to receive payments on his behalf,
Page 264

the Philippines, and the Office of the Bar Confidant. when in truth and in fact he is not. Consequently, complainant made
SO ORDERED. several verbal demands to the respondent to remit to him the amount

Intelligentia et Scientia Semper Mea

LEGAL ETHICS
of P95,000.00, less his attorney's fees of P20,000.00. But respondent
did not budge. Thus, complainant lodged a complaint before the Office
of the Punong Barangay of Brgy. Felisa, Bacolod City. Respondent,
however, ignored the summons to attend a conference before the
barangay to resolve the issues.
In his Comment,5 respondent admits that he received P95,000.00 from
spouses Lopez on installments, but denies that he was not authorized to
accept it. He explains that complainant agreed to pay him additional
attorney's fees equivalent to 25o/o of the total monetary award, on top of
the attorney's fees that may be awarded by the labor tribunal, and to
refund all expenses respondent incurred relative to the case. Thus, from
the total award ofP189,491.60, the sum of P17,226.57 representing
respondent's professional fees has to be deducted, leaving a balance
of P172,275.13.6 Then from said amount, complainant proposed that he
will get P100,000.00 and the balance of P72,275.13 shall belong to
respondent as and for his additional 25o/o attorney's fees and
reimbursement for all expenses he incurred while handling the case.
However, after receiving the amount ofP95,000.00 and deducting
therefrom the amounts of P20,000.007 attorney's fees, P17,000.00
earlier given to complainant, and P2,000.00 paid to the sheriff, what was
left to respondent was only P56,000.00. Respondent whines that this
amount is way below the promised 25o/o attorney's fees and refund of
expenses in the total amount of P72,275.13.
Respondent asserts that, in any event, complainant will still be receiving
a sum greater than what he expects to receive. He avers that
complainant is still entitled to receive from spouses Lopez the sum
of P93,491.60. Adding the Pl 7,000.00 respondent previously remitted to
complainant, the latter will get a total amount of P110,491.60. This
amount, according to respondent, exceeds the amount of P100,000.00
complainant agreed to and expected to receive.
IBP's Report and Recommendation
On February 26, 2007,8 we referred this case to the Integrated Bar of the
Philippines (IBP) for investigation, report and recommendation. On
January 31, 2011, the Investigating Commissioner issued his Report and
Recommendation9 with the following recommendation:
In view of the foregoing, it is respectfully recommended that the
respondent be meted the penalty of two (2) years suspension.
Respondent is also ordered to return, in restitution all the amounts in his
possession which are due to complainant, less his rightful attorney's
fees.10 On October 28, 2011, the IBP Board of Governors adopted
Resolution No. XX-2011-139,11 which approved the Report and
Recommendation of the Investigating Commissioner suspending
respondent from the practice of law for two years, but with the
modification that respondent should restitute the sum of P85,500.0012 to
the complainant.
Issue
The essential issue in this case is whether the respondent is guilty of
gross misconduct for his failure to promptly account to his client the funds
received in the course of his professional engagement and return the
same upon demand.
The Court's Ruling
"The Code of Professional Responsibility demands the utmost degree of
fidelity and good faith in dealing with the moneys entrusted to lawyers
because of their fiduciary relationship."13 Specifically, Rule 16.01 of the
Code imposes upon the lawyer the duty to "account for all money or
property collected or received for or from the client." Rule 16.03 thereof,
on the other hand, mandates that "[a] lawyer shall deliver the funds xx x
of his client when due or upon demand."
In this case, respondent on nine separate occasions from February 5,
2004 to April 30, 2004 received payments for attorney's fees and partial
payments for monetary awards on behalf of complainant from spouses
Lopez. But despite the number of times over close to three months he
had been receiving payment, respondent neither informed the
complainant of such fact nor rendered an accounting thereon. It was only
when an Alias Writ of Execution was issued and being implemented
when complainant discovered that spouses Lopez had already given
PINEDAPCGRNMAN
respondent the total amount of P95,000.00 as partial payment for the
monetary awards granted to him by the labor tribunal.
To make matters worse, respondent withheld and refused to deliver to
the complainant said amount, which he merely received on behalf of his
client, even after demand. Complainant brought the matter before the
barangay, but respondent simply ignored the same. Such failure and
inordinate refusal on the part of the respondent to render an accounting
and return the money after demand raises the presumption that he
converted it to his own use.14 His unjustified withholding of the funds also
warrants the imposition of disciplinary action against him.15
Respondent justifies his action by asserting that complainant authorized
him to receive payment. He implies that he is also authorized to apply
the sum of money he received from spouses Lopez to his additional
25o/o attorney's fees and reimbursement for all expenses he incurred for
the case, in the total amount of P72,275.13. However, after deducting
from the amount of P95,000.00 the amounts of P20,000.00, P17,000.00,
andP2,000.00, what was left to respondent, to his dismay was
only P56,000.00.
The Court is not impressed. As aptly observed by the Investigating
Commissioner, other than his self-serving statements, there is nothing in
the records which would support respondent's claim that he was
authorized to receive the payments. Neither is there proof that
complainant agreed to pay him additional 25% attorney's fees and
reimburse him for all expenses he allegedly incurred in connection with
the case. Respondent did not present any document, retainer's
agreement, or itemized breakdown of the amount to be reimbursed to
support his claim.1wphi1 In any event, even assuming that respondent
was authorized to receive payments, the same does not exempt him from
his duty of promptly informing his client of the amounts he received in
the course of his professional employment. "The fiduciary nature of the
relationship between counsel and client imposes on a lawyer the duty to
account for the money or property collected or received for or from the
client. He is obliged to render a prompt accounting of all the property and
money he has collected for his client."16 "The fact that a lawyer has a lien
for his attorney's fees on the money in his hands collected for his client
does not relieve him from the obligation to make a prompt
accounting."17 Moreover, a lawyer has no right "to unilaterally
appropriate his client's money for himself by the mere fact alone that the
client owes him attorney's fees."18
In sum, "[r]espondent's failure to immediately account for and return the
money when due and upon demand violated the trust reposed in him,
demonstrated his lack of integrity and moral soundness, and warrants
the imposition of disciplinary action."19
The Penalty
"The penalty for gross misconduct consisting in the failure or refusal
despite demand of a lawyer to account for and to return money or
property belonging to a client has been suspension from the practice of
law for two years."20 Thus, the IBP Board of Governors did not err in
recommending the imposable penalty. Considering, however, that this is
respondent's first offense and he is already a nonagenarian,21 the Court,
in the exercise of its compassionate judicial discretion, finds that a
penalty of one year suspension is sufficient. WHEREFORE, the Court
finds respondent Atty. Eugenio T. Sanicas GUILTY of gross misconduct
and accordingly SUSPENDS him from the practice of law for one (1) year
upon the finality of this Resolution, with a warning that a repetition of the
same or similar act or offense shall be dealt with more severly.
Atty. Sanicas is ordered to return to complainant, within 90 days from
finality of this Resolution, the net amount ofP85,500.00 with interest at
the rate of 6% per annum from finality of this Resolution until the full
amount is returned. Failure to comply with the foregoing directive will
warrant the imposition of a more severe penalty.
Let copies of this Resolution be furnished the Office of the Bar Confidant
and noted in Atty. Sanicas' record as a member of the Bar.
Page 265
Rule 16.02 A lawyer shall keep the funds of each client separate
and apart from his own and those of others kept by him.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
[A.C. No. 1526. January 31, 2005]
NAZARIA S. HERNANDEZ (DECEASED), SUBSTITUTED BY
LUCIANO S. HERNANDEZ, JR., complainant, vs. ATTY. JOSE C.
GO, respondent.
DECISION
PER CURIAM:
For our resolution is the verified letter-complaint[1] for disbarment against
Atty. Jose C. Go dated June 23, 1975 filed by Nazaria S. Hernandez
(now deceased). Both parties are from Zamboanga City.
The allegations in the letter-complaint are:
Sometime in 1961, complainants husband abandoned her and her son,
Luciano S. Hernandez, Jr. Shortly thereafter, her husbands numerous
creditors demanded payments of his loans. Fearful that the various
mortgage contracts involving her properties will be foreclosed and aware
of impending suits for sums of money against her, complainant engaged
the legal services of Atty. Jose C. Go, herein respondent.
Respondent instilled in complainant a feeling of helplessness, fear,
embarrassment, and social humiliation. He advised her to give him her
land titles covering Lots 848-A, 849-Q, and 849-P at Zamboanga City so
he could sell them to enable her to pay her creditors. He then persuaded
her to execute deeds of sale in his favor without any monetary or
valuable consideration. Complainant agreed on condition that he would
sell the lots and from the proceeds pay her creditors.
Complainant also owned Lots 2118, 2139, and 1141-A, likewise located
in Zamboanga City, which were mortgaged to her creditors. When the
mortgages fell due, respondent redeemed the lots. Again, he convinced
her to execute deeds of sale involving those lots in his favor. As a result,
respondent became the registered owner of all the lots belonging to
complainant.
Sometime in 1974, complainant came to know that respondent did not
sell her lots as agreed upon. Instead, he paid her creditors with his own
funds and had her land titles registered in his name, depriving her of her
real properties worth millions.
In our Resolution dated September 24, 1975, respondent was required
to file his comment on the complaint.
Instead of filing his comment, respondent submitted a motion to dismiss
on the ground that the complaint is premature since there is pending
before the then Court of First Instance of Zamboanga City Civil Case No.
1781[2] for recovery of ownership and declaration of nullity of deeds of
sale filed by complainant against him involving the subject lots.
On November 14, 1975, we issued a Resolution denying respondents
motion and requiring him to submit his answer.
In his answer dated December 19, 1975, respondent denied the
allegations in the instant complaint. He averred that he sold, in good faith,
complainants lots to various buyers, including himself, for valuable
consideration. On several occasions, he extended financial assistance
to complainant and even invited her to live with his family. His children
used to call her Lola due to her frequent visits to his residence. He prayed
that the complaint be dismissed for failure to state a cause of action.
On January 17, 1977, we referred the case to the Office of the Solicitor
General (OSG) for investigation, report, and recommendation.
It was only on March 13, 1990 or after 13 years, 1 month and 26 days
that the OSG filed a motion to refer the instant case to the IBP for the
retaking of the testimonies of complainants witnesses and the
submission of its report and recommendation.
On April 4, 1990, we issued a Resolution referring the case to the IBP
for investigation, report, and recommendation.
The Report and Recommendation dated June 15, 2004 of Atty. Lydia A.
Navarro, Commissioner of the IBP Commission on Bar Discipline, is
quoted as follows:
A careful examination and evaluation of the evidence submitted by the
parties showed that all the properties of the complainant are presently
owned by the respondent by virtue of several deeds of sale executed by
the complainant in favor of the respondent without monetary
PINEDAPCGRNMAN
consideration except Lot 849-D situated in Tomas Claudio which was
returned by the respondent to the complainant on September 5, 1974.
It is evident from the records that respondent was the one who notarized
the documents involving the said properties redeemed or repurchased
by the complainant from her creditors which ended up in respondents
name like in the deed of sale executed by Victoriano Dejerano in favor
of Nazaria Hernandez over Lots 1141-A-3-A and 1141-A-3-B; deed of
sale executed by Antonio Masrahon on September 3, 1961regarding Lot
No. 1141-A; deed of absolute sale executed by Francisco Esperat over
the Curuan properties on November 9, 1971 and the cancellation of the
mortgage executed by Alfonso Enriquez on July 18, 1964 over the
Tomas Claudio properties.
The foregoing legal activities and operations of the respondent in
addition to his having discussed, advised and gave solutions to
complainants legal problems and liabilities to her creditors and even
requested her creditors for extension of time to pay complainants
accounts constitute practice of law as legal counsel for consultation
aside from representing complainant in other cases; a mute proof of a
lawyer-client relations between them, a fact also admitted by the
respondent.
It is incumbent upon the respondent to have rendered a detailed report
to the complainant on how he paid complainants creditors without selling
her properties. Instead of selling to buyers at higher price, he paid them
out of his own funds; then later on admitted that he was one of the
purchasers of complainants properties in utter disregard of their
agreement and no evidence was submitted by the respondent
concerning the value of the said sale of complainants properties.
As such, respondent did not adhere faithfully and honestly in his
obligation and duty as complainants legal adviser and counsel when he
took advantage of the trust and confidence reposed in him by the
complainant in ultimately putting complainants properties in his name
and possession in violation of Canon 17 of the Code of Professional
Responsibility.
WHEREFORE, in view of the foregoing, the undersigned respectfully
recommends that respondent Atty. Jose C. Go be suspended from the
practice of law for a period of six (6) months from receipt hereof and the
IBP Chapter where he is a registered member be furnished a copy of the
same for implementation hereof, subject to the approval of the Honorable
Members of the Board of Governors.
On July 30, 2004, the IBP Board of Governors passed Resolution No.
XVI-2004-39 adopting and approving the Report of Commissioner
Navarro with modification in the sense that the recommended penalty of
suspension from the practice of law was increased from six (6) months
to three (3) years.
We sustain the Resolution of the IBP Board of Governors finding that
respondent violated the Code of Professional Responsibility. However,
we have to modify its recommended penalty.
Canon 16 of the Code of Professional Responsibility, the principal source
of ethical rules for lawyers in this jurisdiction, provides:
A lawyer shall hold in trust all moneys and properties of his client
that may come into his possession.
Respondent breached this Canon. His acts of acquiring for himself
complainants lots entrusted to him are, by any standard, acts constituting
gross misconduct, a grievous wrong, a forbidden act, a dereliction in
duty, willful in character, and implies a wrongful intent and not mere error
in judgment.[3] Such conduct on the part of respondent degrades not only
himself but also the name and honor of the legal profession. He violated
this Courts mandate that lawyers must at all times conduct themselves,
especially in their dealing with their clients and the public at large, with
honesty and integrity in a manner beyond reproach.[4]
Canon 17 of the same Code states:
A lawyer owes fidelity to the cause of his client and he shall be
mindful of the trust and confidence reposed in him.
The records show that complainant reposed such high degree of trust
Page 266
and confidence in herein respondent, that when she engaged his
services, she entrusted to him her land titles and allowed him to sell her
Intelligentia et Scientia Semper Mea
LEGAL ETHICS PINEDAPCGRNMAN
lots, believing that the proceeds thereof would be used to pay her Let copies of this Decision be furnished the Bar Confidant, the Integrated
creditors. Respondent, however, abused her trust and confidence when Bar of the Philippines and all courts throughout the country.
he did not sell her properties to others but to himself and spent his own SO ORDERED.
money to pay her obligations. As correctly observed by Investigating IBP
Commissioner Lydia Navarro, respondent is duty-bound to render a ERLINDA R. TAROG, A.C. No. 8253
detailed report to the complainant on how much he sold the latters lots Complainant, (Formerly CBD Case No.
and the amounts paid to her creditors. Obviously, had he sold the lots to
03-1067)
other buyers, complainant could have earned more. Records show that
she did not receive any amount from respondent. Clearly, respondent
did not adhere faithfully and honestly in his duty as complainants Present:
counsel.
Undoubtedly, respondents conduct has made him unfit to remain in the CORONA, Chief Justice,
legal profession. He has definitely fallen below the moral bar when he CARPIO,
engaged in deceitful, dishonest, unlawful and grossly immoral acts. We - versus - CARPIO MORALES,
have been exacting in our demand for integrity and good moral character VELASCO, JR.,
of members of the Bar. They are expected at all times to uphold the NACHURA,
integrity and dignity of the legal profession[5] and refrain from any act or LEONARDO-DE CASTRO,
omission which might lessen the trust and confidence reposed by the BRION,
public in the fidelity, honesty, and integrity of the legal PERALTA,
profession.[6] Membership in the legal profession is a privilege.[7] And
BERSAMIN,
whenever it is made to appear that an attorney is no longer worthy of the
ATTY. ROMULO L. RICAFORT, DEL CASTILLO,
trust and confidence of his clients and the public, it becomes not only the
right but also the duty of this Court, which made him one of its officers Respondent. ABAD,
and gave him the privilege of ministering within its Bar, to withdraw the VILLARAMA, JR.,
privilege.[8]Respondent, by his conduct, blemished not only his integrity PEREZ,
as a member of the Bar, but also the legal profession. MENDOZA, and
Public interest requires that an attorney should exert his best efforts and SERENO, JJ.
ability to protect the interests of his clients. A lawyer who performs that
duty with diligence and candor not only protects his clients cause; he Promulgated:
also serves the ends of justice and does honor to the bar and helps
maintain the respect of the community to the legal profession. March 15, 2011
It is a time-honored rule that good moral character is not only a condition
precedent to admission to the practice of law. Its continued possession x-----------------------------------------------------------------------------------------x
is also essential for remaining in the legal profession.[9]
Section 27, Rule 138 of the Revised Rules of Court mandates that a DECISION
lawyer may be disbarred or suspended by this Court for any of the
following acts: (1) deceit; (2) malpractice; (3)gross misconduct in PER CURIAM:
office; (4) grossly immoral conduct; (5) conviction of a crime involving
moral turpitude; (6) violation of the lawyers oath; (7) willful disobedience We resolve a complaint for disbarment for alleged grave misconduct
of any lawful order of a superior court; and (8) willfully appearing as an brought against Atty. Romulo L. Ricafort for his failure to account for and
attorney for a party without authority to do so.[10] to return the sums of money received from his clients for purposes of the
In Rayos-Ombac vs. Rayos,[11] we ordered the disbarment of lawyer civil action to recover their property from a foreclosing banking institution
when he deceived his 85-year old aunt into entrusting him with all her he was handling for them. The original complainant was Arnulfo A.
money and later refused to return the same despite demand. In Navarro
Tarog, but his wife, Erlinda R. Tarog, substituted him upon his
vs. Meneses III,[12] we disbarred a member of the Bar for his refusal or
intervening death.
failure to account for the P50,000.00 he received from a client to settle a
case. In Docena vs. Limson,[13] we expelled from the brotherhood of
lawyers, an attorney who extorted money from his client through deceit Antecedents
and misrepresentation. In Busios vs. Ricafort,[14] an attorney was
stripped of his license to practice law for misappropriating his clients In 1992, the Tarogs sought the advice of Atty. Jaime L. Miralles regarding
money. their bank-foreclosed property located in the Bicol Region. Atty. Miralles
Considering the depravity of respondents offense, we find the penalty advised them to engage a Bicol-based attorney for that purpose. Thus,
recommended by the IBP too light. It bears reiterating that a lawyer who they went to see Atty. Ricafort accompanied by Vidal Miralles, their friend
takes advantage of his clients financial plight to acquire the latters who was a brother of Atty. Miralles.[1] They ultimately engaged Atty.
properties for his own benefit is destructive of the confidence of the public Ricafort as their attorney on account of his being well-known in the
in the fidelity, honesty, and integrity of the legal profession. Thus, for community, and being also the Dean of the College of Law of Aquinas
violation of Canon 16 and Canon 17 of the Code of Professional University where their son was then studying.
Responsibility, which constitutes gross misconduct, and consistent with
the need to maintain the high standards of the Bar and thus preserve the
Having willingly accepted the engagement, Atty. Ricafort required the
faith of the public in the legal profession, respondent deserves the
ultimate penalty, that of expulsion from the esteemed brotherhood of Tarogs to pay P7,000.00 as filing fee, which they gave to him.[2] He
lawyers. explained the importance of depositing P65,000.00 in court to counter
WHEREFORE, respondent JOSE S. GO is found guilty of gross the P60,000.00 deposited by Antonio Tee, the buyer of the foreclosed
misconduct and is DISBARRED from the practice of law. His name is property. After they informed him that they had only P60,000.00, he
Page 267

ordered STRICKEN from the Roll of Attorneys EFFECTIVE required them to add some more amount (dagdagan niyo ng konti).[3] To
IMMEDIATELY. raise the P65,000.00 for the Tarogs, therefore, Vidal solicited a loan from

Intelligentia et Scientia Semper Mea

LEGAL ETHICS
one Sia with the guarantee of his brother Atty. Miralles. Sia issued a
check in that amount in the name of Arnulfo.[4]
On November 7, 1992, the Tarogs and Vidal went to the office of Atty.
Ricafort to deliver the P65,000.00. When Arnulfo said that he had first to
encash the check at the bank, Atty. Ricafort persuaded him to entrust
the check to him instead so that he (Atty. Ricafort) would be the one to
encash it and then deposit the amount in court. On that representation,
Arnulfo handed the check to Atty. Ricafort.[5]
After some time, the Tarogs visited Atty. Ricafort to verify the status of
the consignation. Atty. Ricafort informed them that he had not deposited
the amount in court, but in his own account. He promised to return the
money, plus interest. Despite several inquiries about when the amount
would be returned, however, the Tarogs received mere assurances from
Atty. Ricafort that the money was in good hands.
The Tarogs further claimed that the Regional Trial Court, Branch 52, in
Sorsogon (RTC), where their complaint for annulment of sale was being
heard, had required the parties to file their memoranda. Accordingly, they
delivered P15,000.00 to Atty. Ricafort for that purpose, but he did not file
the memorandum.[6]
When it became apparent to the Tarogs that Atty. Ricafort would not
make good his promise of returning the P65,000.00, plus interest,
Arnulfo demanded by his letter dated December 3, 2002 that Atty.
Ricafort return the P65,000.00, plus interest, and the P15,000.00 paid
for the filing of the memorandum.[7] Yet, they did not receive any reply
from Atty. Ricafort.
In his defense, Atty. Ricafort denied that the P65,000.00 was intended to
be deposited in court, insisting that the amount was payment for his legal
services under a package deal, that is, the amount included his
acceptance fee, attorneys fee, and appearance fees from the filing of the
complaint for annulment of sale until judgment, but excluding appeal. He
claimed that the fees were agreed upon after considering the value of
the property, his skill and experience as a lawyer, the labor, time, and
trouble involved, and his professional character and social standing; that
at the time he delivered the check, Arnulfo read, understood, and agreed
to the contents of the complaint, which did not mention anything about
any consignation;[8] and that Arnulfo, being a retired school principal, was
a learned person who would not have easily fallen for any scheme like
the one they depicted against him.
Findings of the IBP Commissioner
Following his investigation, Commissioner Wilfredo E.J.E. Reyes of the
Integrated Bar of the Philippines-Commission on Bar Discipline rendered
his Report and Recommendation dated October 7, 2004,[9] in which he
concluded that:
It is respectfully recommended that respondent, Atty. Romulo L. Ricafort
be DISBARRED and be ordered to return the amount of P65,000
and P15,000 which he got from his client.
RESPECTFULLY SUBMITTED.
Commissioner Reyes regarded the testimonies of Erlinda and Vidal more
credible than the testimony of Atty. Ricafort, observing:
PINEDAPCGRNMAN
Based on the said testimony, statements and actuations of complainant
Erlinda Tarog and his collaborating witness, we find their statements to
be credible.
Atty. Ricafort in his testimony attempted to show that the amount
of P65,000.00 was paid to him by the complainant as acceptance fee on
a package deal basis and under said deal, he will answer the filing fee,
attorneys fees and other expenses incurred up to the time the judgment
is rendered. He presented a transcript of stenographic notes wherein it
was stated that complainant himself did not consign the money in
court. The respondent admitted in his testimony that he did not have any
retainer agreement nor any memorandum signed or any receipt which
would prove that the amount of P65,000.00 was received as an
acceptance fee for the handling of the case.
Atty. Romulo Ricafort stated that there was no retainer agreement and
that he issued only receipt because the late Arnulfo Tarog will not pay
unless a receipt is issued.
The Undersigned Commissioner asked the respondent Basically you
describe that thing that will happen in the litigation related to the payment
of fees. But when you received thatP65,000.00 did you not put anything
there that you will describe the nature of legal work which you will
undertake considering that you have considered this P65,000.00 as your
attorneys fees?And Atty. Ricafort stated: Yes I did. I do not know why
they were not showing the receipt. That is a big amount, Your
Honor. They demanded for me the receipt of P30,000.00 how much
more with that P65,000.00. They demanded for the receipt of
that P65,000.00 but I cannot explain the reason why
During the clarificatory questioning, the Undersigned Commissioner also
asked Atty. Ricafort why he did not answer the demand letter sent by
Arnulfo Tarog and the proof of service of the said letter was presented
by the complainant. Conveniently, Atty. Ricafort stated that he did not
receive the letter and it was received by their helper who did not forward
the letter to him. He also adopted the position that the complainant was
demanding the P65,000.00 wherefore this case was filed. When
confronted by the testimony of Mr. Vidal Miralles, the respondent Atty.
Ricafort just denied the allegation that he received the P65,000.00 for
deposit to the court. He also denied that Mr. Miralles has visited his
residence for follow-up the reimbursement.
The Undersigned Commissioner asked the respondent if he has
personal animosity with Arnuldo Tarog, Erlinda Tarog and Vidal Miralles
and if there are any reason why this case was filed against him. In his
answer the respondent stated that we have been very good friends for
the past ten (10) years and he said that in fact he was surprised when
the complaint was filed against him and they even attached the decision
of the Supreme Court for his suspension and maybe they are using this
case to be able to collect from him.
The main defense of the respondent is that the complainant in this case
testified that the total amount to redeem his property is P240,000.00 and
when asked whether he consigned the money to the court to redeem the
property he answered in the negative.
The alleged payment of P65,000.00 was made prior to the said
testimony sometime in 1992. Hence, it was stated on complainants
affidavit that on November 7, 1992, prior to filing said complaint I had
Page 268
given him the sum of Sixty Five Thousand Pesos to be deposited to the
Regional Trial Court representing redemption money of the Real Estate
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Mortgage. The amount ofP65,000.00 is very much close to the amount
of the principal obligation of the complainant and it is not surprising for a
non-lawyer to hold on to the belief that with the filing of the case for
annulment of foreclosure his case would be strengthened by making a
deposit in court hence, the motivation to produce the deposit was logical
and natural insofar as the complainant is concerned. The testimony of
the complainant in court that the bank needed P240,000.00 for the
redemption of the property will have no bearing on the actuation of the
complainant who has been required to deposit P65,000.00 by his lawyer.
The Undersigned Commission has no alternative but to believe in the
credibility and truthfulness of complainants narration that of Mrs. Erlinda
Tarog and Vidal Miralles.[10]
Commissioner Reyes concluded that Atty. Ricafort violated Canon 15,
and Rules 16.01, 16.02 and 16.03 of Canon 16 of the Code of
Professional Responsibility by taking advantage of the vulnerability of his
clients and by being dishonest in his dealings with them by refusing to
return the amount of P65,000.00 to them.
On November 4, 2004, the IBP Board of Governors adopted Resolution
No. XVI-2004-473,[11] resolving to return the matter to Commissioner
Reyes for a clarification of whether or not there was evidence to support
the claim that the P65,000.00 had been in payment of attorneys fees and
other expenses.
On October 11, 2005, Commissioner Reyes issued a second Report and
Recommendation,[12] in which he declared that Atty. Ricafort did not
present any retainer agreement or receipt to prove that the amount
of P65,000.00 had been part of his attorneys fees; that Atty. Ricafort had
willfully ignored the demand of Arnulfo by not replying to the demand
letter; that, instead, Atty. Ricafort had insisted that the househelp who
had received the demand letter had not given it to him; and that in his
(Commissioner Reyes) presence, Atty. Ricafort had also promised to the
complainant that he would settle his liability, but Atty. Ricafort did not
make good his promise despite several resettings to allow him to settle
his obligation.
Action of IBP Board of Governors
Through Resolution No. XVII-2006-569,[13] therefore, the IBP Board of
Governors adopted and approved the Report and Recommendation of
Commissioner Reyes and recommended the disbarment of Atty. Ricafort
and the order for him to return the amounts of P65,000.00
and P15,000.00 to Erlinda, viz:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, the Report and Recommendation of the Investigating
Commissioner of the above-entitled case herein made part of this
Resolution as Annex A and, finding the recommendation fully supported
by the evidence on record and the applicable laws and rules, and
considering that Respondent has taken advantage of his client [sic]
vulnerability and has been dishonest with his dealings to his client, Atty.
Romulo L. Ricafort is hereby DISBARRED and Ordered to Return the
amount ofP65,000 and P15,000 to complainant.
Atty. Ricafort moved for reconsideration,[14] maintaining that a retainer
agreement was immaterial because he had affirmed having received
the P65,000.00 and having issued a receipt for the amount; that he had
not kept the receipt because the practice of lawyers in most instances is
that receipt is issued without duplicate as it behooves upon the client to
demand for a receipt;[15] that considering that the Tarogs had produced
PINEDAPCGRNMAN
a photocopy of the receipt he had issued for the P30,000.00 in
connection with their appeal, it followed that a similar receipt for attorneys
fees had been made at the time when the case had been about to be
filed in the RTC; that the testimonies of Erlinda and Vidal were
inconsistent with Arnulfos affidavit; and that he did not receive Arnulfos
demand letter, which was received by one Gemma Agnote (the name
printed on the registry receipt), whom he did not at all know.
Acting on Atty. Ricaforts motion for reconsideration, the IBP Board of
Governors downgraded the penalty from disbarment to indefinite
suspension,[16] thus:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED the Recommendation of the Board of Governors First
Division of the above-entitled case, herein made part of this Resolution
as Annex A; and, finding the recommendation fully supported by the
evidence on record and the applicable laws and rules, the Motion for
Reconsideration is hereby DENIED with modification of Resolution No.
XVII-2006-509 of the Board of Governors dated 18 November 2006, that
in lieu of the Disbarment of Atty. Romulo Ricafort, he is INDEFINITELY
SUSPENDED from the practice of law and Ordered to return the amount
of P65,000 and P15,000 to complainant.
Atty. Ricafort filed a second motion for reconsideration,[17] assailing the
resolution of the IBP Board of Governors for violating Section 12, Rule
139-B of the Rules of Court requiring the decision of the IBP Board of
Governors to be in writing and to clearly and distinctly state the facts and
reasons on which the decision was based.
Hence, the administrative case is now before the Court for resolution.
Ruling
We affirm the findings of the Commissioner Reyes, because they were
supported by substantial evidence. However, we impose the penalty of
disbarment instead of the recommended penalty of indefinite
suspension, considering that Atty. Ricafort committed a very serious
offense that was aggravated by his having been previously
administratively sanctioned for a similar offense on the occasion of which
he was warned against committing a similar offense.
A.
Version of the complainants was
more credible than version of Atty. Ricafort
Atty. Ricafort admitted receiving the P65,000.00 from the Tarogs. Even
so, we have two versions about the transaction. On the one hand, the
Tarogs insisted that the amount was to be consigned in court for
purposes of their civil case; on the other hand, Atty. Ricafort claimed that
the amount was for his fees under a package deal arrangement.
Commissioner Reyes considered the Tarogs version more credible.
We hold that Commissioner Reyes appreciation of the facts was correct
and in accord with human experience.
Firstly, it is easier to believe that Atty. Ricafort persuaded the Tarogs on
the need for that amount to be deposited in court for purposes of their
civil case. Being non-lawyers, they had no idea about the requirement
Page 269
for them to consign any amount in court, due to the substantive and
procedural implications of such requirement being ordinarily known only
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
to lawyers. Their ready and full reliance on Atty. Ricaforts
representations about the requirement to consign that amount in court
was entirely understandable in view of their awareness of Atty. Ricaforts
standing in the legal community of the place. Besides, as Commissioner
Reyes observed, it was not far-fetched for the Tarogs to believe that an
amount close in value to their original obligation was necessary to be
deposited in court to boost their chances of recovering their property.
Secondly, Atty. Ricaforts denial of receipt of Arnulfos demand letter was
incredible. He already initially admitted receiving the letter through a
househelp.[18] His denial came only subsequently and for the first time
through his motion for reconsideration dated December 30, 2006,[19] in
which he completely turned about to declare that the Gemma Agnote
who had received the letter was unknown to him.[20] Expectedly,
Commissioner Reyes disregarded his denial, because not only was the
denial an apparently belated afterthought, it was even contradicted by
his earlier admission of receipt. In any event, the fact that Gemma
Agnote was even the househelp whom Atty. Ricafort had adverted to
becomes very plausible under the established circumstances.
Thirdly, Atty. Ricafort explained that he had no copies of the receipts for
the P65,000.00 and P15,000.00 issued to the Tarogs because the
practice of lawyers in most instances is that receipt is issued without
duplicate as it behooves upon the client to demand for a receipt.[21] But
such explanation does not persuade us. Ethical and practical
considerations made it both natural and imperative for him to issue
receipts, even if not demanded, and to keep copies of the receipts for his
own records. He was all too aware that he was accountable for the
moneys entrusted to him by the clients, and that his only means of
ensuring accountability was by issuing and keeping receipts. Rule 16.01
of theCode of Professional Responsibility expressly enjoins such
accountability, viz:
Rule 16.01 - A lawyer shall account for all money or property collected
or received for or from the client.
Definitely, Atty. Ricafort had a highly fiduciary and confidential relation
with the Tarogs. As such, he was burdened with the legal duty to
promptly account for all the funds received from or held by him for
them.[22]
And, fourthly, to buttress his denial that the P65,000.00 was not intended
for deposit in court, Atty. Ricafort insisted that Arnulfo did not object to
the omission from the complaint in the civil action of any mention of
consignation. However, the complaint that he himself had written and
filed for the Tarogs contradicted his insistence, specifically in its
paragraph 16, which averred the plaintiffs (i.e., Tarogs) readiness and
willingness to deposit the amount of P69,345.00 (inclusive of the
redemption price and interest) in court, thus:
16. And to show willingness and sincerity of the plaintiffs, they are ready
and willing to deposit the amount of P69,345.00 as redemption price plus
reasonable accrued interests, if there are any; [23]
Nor could the Tarogs have conjured or invented the need for
consignation. The consignation was a notion that could have emanated
only from him as their lawyer. In fact, Erlinda recalled while testifying
before the IBP Commission on Bar Discipline that they had brought to
their meeting with Atty. Ricafort only P60,000.00 for the consignation, but
that Atty. Ricafort had to instruct them to raise the amount. The excerpt
of her pertinent testimony follows:
PINEDAPCGRNMAN
Comm. Reyes: Madam Witness, in this affidavit you stated that your late
husband and Mr. Vidal Miralles went to the office of Atty. Ricafort to
advise the latter that we already had the sum ofP65,000.00 in the form
of check, how did you come to know this fact?
Witness: Paano po ba sabi nya na magdeposit ng P65,000.00 tapos
may P60,000.00 kami sabi niya dagdagan niyo ng konti.
Comm. Reyes: Kinausap ba niya kayo?
Witness: Nandoon po ako.
Comm. Reyes: Where you present when the check was given?
Witness: Yes.
Comm. Reyes: So, alam niyo, nakita niyo na binigay
yong P65,000.00 na tseke?
Witness: Opo.
Comm. Reyes: Alam niyo ba kung ano ang nangyari doon sa tseke na
idiniposit?
Witness: Noong una sinabi niya sa amin na ididiposit niya sa court.
Comm. Reyes: Nalaman niyo ba na hindi naman pala idiniposit sa
court?
Witness: Opo.
Comm. Reyes: Kailan niyo nalaman?
Witness: Nagsabi siya tapos sinabi pa niya na yong interest sa bank
ay ibinigay niya sa amin ang sabi naming salamat.[24]
B.
Atty. Ricaforts acts and actuations constituted
serious breach of his fiduciary duties as an attorney
The Code of Professional Responsibility demands the utmost degree of
fidelity and good faith in dealing with the moneys entrusted to lawyers
because of their fiduciary relationship.[25] In particular, Rule 16.01 of
the Code of Professional Responsibility states:
Rule 16.01 - A lawyer shall account for all money or property collected
or received for or from the client.
Undoubtedly, Atty. Ricafort was required to hold in trust any money and
property of his clients that came into his possession,[26] and he needed
to be always mindful of the trust and confidence his clients reposed in
him.[27] Thus, having obtained the funds from the Tarogs in the course of
his professional employment, he had the obligation to deliver such funds
to his clients (a) when they became due, or (b) upon demand.[28]
Furthermore, Rule 16.02 of the Code of Professional
Responsibility, imposes on an attorney the positive obligation to keep all
funds of his client separate and apart from his own and from those of
others kept by him, to wit:
Page 270
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Rule 16.02 - A lawyer shall keep the funds of each client separate and
apart from his own and those of others kept by him.
Atty. Ricaforts act of obtaining P65,000.00 and P15,000.00 from the
Tarogs under the respective pretexts that the amount would be
deposited in court and that he would prepare and file the memorandum
for the Tarogs erected a responsibility to account for and to use the
amounts in accordance with the particular purposes intended. For him to
deposit the amount of P65,000.00 in his personal account without the
consent of the Tarogs and not return it upon demand, and for him to fail
to file the memorandum and yet not return the amount of P15,000.00
upon demand constituted a serious breach of his fiduciary duties as their
attorney. He reneged on his duty to render an accounting to his clients
showing that he had spent the amounts for the particular purposes
intended.[29] He was thereby presumed to have misappropriated the
moneys for his own use to the prejudice of his clients and in violation of
the clients trust reposed in him.[30] He could not escape liability, for upon
failing to use the moneys for the purposes intended, he should have
immediately returned the moneys to his clients.[31]
Atty. Ricaforts plain abuse of the confidence reposed in him by his clients
rendered him liable for violation of Canon 16,[32] particularly Rule
16.01, supra, and Canon 17,[33] all of the Code of Professional
Responsibility. His acts and actuations constituted a gross violation of
general morality and of professional ethics that impaired public
confidence in the legal profession and deserved punishment.[34]
Without hesitation, therefore, we consider Atty. Ricaforts acts and
conduct as gross misconduct, a serious charge under Rule 140 of
the Rules of Court, to wit:
Section 8. Serious charges. Serious charges include:
xxx
3. Gross misconduct constituting violations of the Code of Judicial
Conduct;
xxx
That this offense was not the first charged and decided against Atty.
Ricafort aggravated his liability. In Nuez v. Ricafort,[35] decided in
2002, the Court found him to have violated Rules 1.01[36] of Canon 1 and
Rule 12.03[37] and Rule 12.04[38] of Canon 12 of the Code of Professional
Responsibility in relation to his failure to turn over the proceeds of the
sale of realty to the complainant (who had authorized him to sell the
realty in her behalf). His failure to turn over the proceeds compelled the
complainant to commence in the RTC a civil action to recover the
proceeds against him and his wife. The
Court meted on him the penalty of indefinite suspension, and warned him
against the commission of similar acts, stating:
We concur with the findings of the Investigating Commissioner, as
adopted and approved by the Board of Governors of the IBP, that
respondent Atty. Romulo Ricafort is guilty of grave misconduct in his
dealings with complainant. Indeed, the record shows respondents grave
misconduct and notorious dishonesty.
There is no need to stretch ones imagination to arrive at an inevitable
conclusion that respondent gravely abused the confidence that
complainant reposed in him and committed dishonesty when he did not
turn over the proceeds of the sale of her property. Worse, with palpable
bad faith, he compelled the complainant to go to court for the recovery
PINEDAPCGRNMAN
of the proceeds of the sale and, in the process, to spend money, time
and energy therefor. Then, despite his deliberate failure to answer the
complaint resulting in his having been declared in default, he appealed
from the judgment to the Court of Appeals. Again, bad faith attended
such a step because he did not pay the docket fee despite notice.
Needless to state, respondent wanted to prolong the travails and agony
of the complainant and to enjoy the fruits of what rightfully belongs to the
latter. Unsatisfied with what he had already unjustly and unlawfully done
to complainant, respondent issued checks to satisfy the alias writ of
execution. But, remaining unrepentant of what he had done and in
continued pursuit of a clearly malicious plan not to pay complainant of
what had been validly and lawfully adjudged by the court against him,
respondent closed the account against which the checks were drawn.
There was deceit in this. Respondent never had the intention of paying
his obligation as proved by the fact that despite the criminal cases for
violation of B.P. Blg. 22, he did not pay the obligation.
All the foregoing constituted grave and gross misconduct in blatant
violation of Rule 1.01 of Canon 1 of the Code of Professional
Responsibility which provides:
A lawyer shall not engage in unlawful, dishonest and immoral or deceitful
conduct.
Respondents claim of good faith in closing his account because he
thought complainant has already encashed all checks is preposterous.
The account was closed on or before 26 February 1996. He knew that
there were still other checks due on 29 February 1996 and 15 March
1996 which could not be encashed before their maturity dates.
By violating Rule 1.01 of Canon 1 of the Code of Professional
Responsibility, respondent diminished public confidence in the law and
the lawyers (Busios v. Ricafort, 283 SCRA 407 [1997]; Ducat v. Villalon,
337 SCRA 622 [2000]). Instead of promoting such confidence and
respect, he miserably failed to live up to the standards of the legal
profession (Gonato v. Adaza, 328 SCRA 694 [2000];Ducat v.
Villalon, supra).
Respondents act of issuing bad checks in satisfaction of the alias writ of
execution for money judgment rendered by the trial court was a clear
attempt to defeat the ends of justice. His failure to make good the checks
despite demands and the criminal cases for violation of B.P. Blg. 22
showed his continued defiance of judicial processes, which he, as an
officer of the court, was under continuing duty to uphold.[39]
Bearing in mind his administrative record, and considering that the
penalty for violation of Canon 16 ranges from suspension for six
months,[40] to suspension for one year,[41] to suspension for two
years,[42] depending on the amount involved and the severity of the
lawyers misconduct, we rule that disbarment is the commensurate
punishment for Atty. Ricafort, who has shown no reformation in his
handling of trust funds for his clients.
WHEREFORE, we find and declare Atty. Romulo L. Ricafort guilty of a
violation of Canon 16, Rule 16.01 and Canon 17 of the Code of
Professional Responsibility and, accordingly, disbar him. The Bar
Confidant is directed to strike out his name from the Roll of Attorneys.
Atty. Ricafort is ordered to return to Erlinda R. Tarog the sums
Page 271
of P65,000.00 and P15,000.00, plus interest of six percent per
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
annum reckoned from the demand made on December 3, 2002, within
twenty days from notice.
This decision is effective immediately.
Let a copy of this decision be furnished to the Office of the Court
Administrator for circulation to all courts, and to the Integrated Bar of the
Philippines, for its reference.
SO ORDERED.
Rule 16.03 A lawyer shall deliver the funds and property of his
client when due or upon demand. However, he shall have a lien
over the funds and may apply so much thereof as may be necessary
to satisfy his lawful fees and disbursements, giving notice promptly
thereafter to his client. He shall also have a lien to the same extent
on all judgments and executions he has secured for his client as
provided for the Rules of Court.
Attorneys Liens an attorney shall have a lien upon the funds,
documents and papers of his client which have lawfully come into his
possession and may retain the same until his lawful fees and
disbursements have been paid, and may apply such finds to the
satisfaction thereof. He shall also have a lien to the same extent upon
all judgements for the payment of money, and executions issued in
pursuance of such judgements which he has secured in a litigation of his
client, from and after the time when he shall have caused a statement of
his claim of such lien to be entered upon the records of the court
rendering such judgement, or issuing such execution, and shall have
caused written notice thereof to be delivered to his client and to the
adverse party; and he shall have the same right and power over such
judgments and executions as his client would have to enforce his lien
and secure the payment of his fees and disbursements. (Sec, 37, Rule
138, RRC)
[A.C. No. 4349. December 22, 1997]
LOURDES R. BUSIOS, complainant, vs. ATTY. FRANCISCO
RICAFORT, respondent.
RESOLUTION
PER CURIAM:
In a sworn complaint for disbarment dated 31 October 1994 but received
by us on 21 November 1994, complainant Lourdes R. Busios charged
respondent Atty. Francisco Ricafort, a practicing lawyer in Oas, Albay,
with having committed the crime of estafa under Article 315 (1) (b) of the
Revised Penal Code by misappropriating the sum of P32,000.00. Of this
amount,P30,000.00 was entrusted to respondent for deposit in the bank
account of complainants husband, while P2,000.00 represented the
amount respondent demanded from complainant supposedly for a bond
in Civil Case No. 5814, when no such bond was required.
In the resolution of 18 January 1995, we required respondent to
comment on the complaint. Despite his receipt of a copy of the resolution,
respondent did not comply, compelling us in the resolution of 17 July
1995 to require him to show cause why he should not be disciplinarily
dealt with or held in contempt for such failure.
Again respondent failed to comply. Hence in the resolution of 25
September 1996, we ordered him once more to file his comment within
ten (10) days from notice, and within the same period, to pay a fine
of P1,000.00 or suffer imprisonment of ten (10) days should he fail to so
pay. In a Compliance and Motion dated 24 October 196, respondent
transmitted the fine ofP1,000.00 by way of postal money order, but asked
for five (5) days from date to file his comment. As respondent still failed
to so file, we then declared, in the resolution of 2 December 1996, that
respondent was deemed to have waived his right to file his comment,
and referred the complaint to the Office of the Bar Confidant for reception
of complainants evidence and submission of a report and
recommendation thereon.
PINEDAPCGRNMAN
On 16 October 1997, the Bar Confidant, Atty. Erlinda C. Verzosa,
submitted her Report and Recommendation, material portions of which
read as follows:
Respondent Atty. Francisco Ricafort stands charged with having
misappropriated the sum of P30,000.00 intended for his clients as well
as having deceived his clients into giving him the sum of P2,000.00
purportedly to be deposited as a bond in the case he was handling.
Complainant Lourdes R. Busios is one of the heirs of Pedro Rodrigo who
are the defendants in Civil Case No. 1584, apparently a case involving
the properties of the late Pedro Rodrigo, father of herein complainant.
Respondent was the counsel of record for the defendants in the said
case. On July 10, 1994, complainant representing her co-heirs, executed
a special power of attorney, appointing and constituting respondent
and/or Pedro Rodrigo, Jr. to be her true and lawful attorney-in-fact with
the following powers:
1. To attend to and represent me, testify, or otherwise enter into
compromise during the pre-trial stage or other proceedings in Civil Case
No. 1584, entitled Heirs of Rosario Rodrigo-Reantaso, vs. Heirs of Pedro
Rodrigo Sr., et al. now pending before the Regional Trial Court, Branch
12, Ligao, Albay;
2 To demand, collect and receipt for any and all sums of money that may
now be deposited in said court by the defendant Oas Standard High
School or hereafter be deposited by said defendant, due and owing to
me or said Heirs of Pedro Rodrigo Sr., representing the rentals of said
defendants for the lease of the property involved in said case; and
3 To sign, authenticate, issue and deliver any and all deeds, instruments,
papers and other records necessary and pertinent to the above stated
transactions.
On August 10, 1994, the Regional Trial Court of Ligao, Albay, Br. 12
issued an order, directing the Clerk of Court to release any and all
deposits of rentals made in connection with this case (Civil Case No.
1584) to the defendants Heirs of Pedro Rodrigo through Lourdes Rodrigo
Businos who were receiving the rentals from Oas Standard High School
prior to the institution of this case.
In a letter dated August 10, 1994, the Clerk of Court of RTC, Ligao
informed herein complainant that respondent had already received the
rental deposit of P25,000.00 on eve date (see Annex C to the complaint).
Respondent also received from Oas Standard High School on August
17, 1994 the sum of P5,000.00 as payment for rental of school site for
the month of July 1994 (See Annex D to the complaint). The said sum
was entrusted to respondent with an obligation on his part to deposit the
same in the account of complainants husband at PNB, Ligao Branch.
Instead, however, of depositing the money, respondent converted the
money to his own personal use, and despite several demands, he failed
to return the same to complainant. She was thus constrained to file a
criminal case for estafa and an administrative case for disbarment
against him. Thus, on November 21, 1994, complainant filed the instant
administrative case against respondent.
Complainant further accuses respondent for demanding and
receiving P2,000.00 from her which he said will be used for the bond in
Civil Case No. 1584, but said amount was never used as intended since
no bond was required in the said case. Thus, respondent merely
pocketed the said amount.
xxx xxx xxx
Complainant, upon questioning by the undersigned, testified that: She
authorized respondent to withdraw the money amounting to P35,000.00
representing the rental fee paid by Oas Standard High School from the
Clerk of Court, with the instruction to deposit the same in her savings
account at the PNB. After she was informed by the court that respondent
had already withdrawn the money, she expected in vain to receive the
money a week later in Tarlac as respondent failed to effect the deposit
of the said sum in her account. She demanded from him to give her the
money, but he informed her that he had already spent the same. He
promised, though to pay her the said amount. (pp. 7-8, TSN, Reception
Page 272
of Evidence, April 18, 1997). She clarified that respondent withdrew only
the sum of P30,000.00 from the Clerk of Court, while the P5,000.00 was
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
withdrawn by respondent from Oas Standard High School (TSN, p. 8).
Despite several demands, both from her and her lawyer, respondent
failed to make good his promise to give her the money he withdrew from
the Clerk of Court and Oas Standard High School (TSN, pp. 11-13). She
was then constrained to file a criminal case for estafa and an
administrative case against respondent sometime in November of 1994
to recover the money in question (TSN, pp. 14-16).On their third hearing
of the estafa case sometime in 1995, respondent came with the money
and paid complainant inside the courtroom (TSN, pp. 15, 19-20).
Because of this development, she did not anymore pursue the estafa
case against respondent (TSN, p. 17). She has no intention, however, of
withdrawing the instant complaint (TSN, p. 18).
She further testified that respondent demanded from her the sum
of P2,000.00 for the bond required in the civil case. (TSN, p. 18).
Respondent did not give her a receipt for the said amount. (TSN, p. 19).
Respondent gave back the P2,000.00 to complainant. He paid
complainant a total of P60,000.00 representing the money he withdrew
from the Clerk of Court and Oas Standard High School, the P2,000.00
he got from complainant and attorneys fees, which he undertook to foot
as a way of settlement. (TSN, p. 19).
Although complainant failed to submit the original or certified true copies
of the documents in support of her complaint against respondent,
respondents repeated failure to comply with several resolutions of the
Court requiring him to comment on the complaint lends credence to the
allegations of the complainant. It manifests his tacit admission thereto.
We have no other alternative, therefore, but to accept the said
documents at their [sic] face value.
There is no doubt that respondent is guilty of having used the money of
his clients without their consent. As the evidentiary value of the
documents should be given more weight than the oral testimony of
complainant, we place the amount illegally used by respondent
at P30,000.00 and not P35,000.00 as claimed by complainant.
Respondents illegal use of his clients money is made more manifest [by]
his letters to complainant, all promising the latter to make good his
promise to pay the money he withdrew from the Clerk of Court and Oas
Standard High School (See Annex E to the complaint).
It bears emphasis that a lawyer, under his oath, pledges himself not to
delay any man for money or malice and is bound to conduct himself with
all good fidelity to his clients. He is obligated to report promptly the
money of his client that has come into his possession. He should not
commingle it with his private property or use it for his personal purposes
without his cllients [sic] consent. He should maintain a reputation for
honesty and fidelity to private trust (Daroy vs. Legaspi, 65 SCRA 304).
Money collected by a lawyer in pursuance of a judgment in favor of his
clients is held in trust and must be immediately turned over to them (Aya
vs. Bigornia, 57 Phil. 8).
Respondent, by converting the money of his clients to his own personal
use without their consent , and by deceiving the complainant into giving
him the amount of P2,000.00 purportedly to be used as a bond which
was not required, is, undoubtedly, guilty of deceit, malpractice and gross
misconduct. By so doing, he betrays the confidence reposed in him by
his clients. Not only has he degraded himself but as an unfaithful lawyer
he has besmirched the fair name of an honorable profession.
His belated payment of the amount he illegally used and fraudulently
obtained do not relieve him from any liability if only to impress upon him
that the relation between an attorney and his client is highly fiduciary in
its nature and of a very delicate, exacting and confidential character,
requiring high degree of fidelity and good faith. In view of that special
relationship, lawyers are bound to promptly account for money or
property received by them on behalf of their clients and failure to do so
constitutes professional misconduct (Daroy vs. Legaspi, supra).
Moreover, his repeated failure to comply with the resolutions of the Court,
requiring him to comment on the complaint indicate the high degree of
irresponsibility of respondent.
PINEDAPCGRNMAN
PREMISES CONSIDERED, it is respectfully recommended that
respondent Atty.Francisco Ricafort be SUSPENDED from the practice of
law for a period of ONE (1) YEAR.
While the findings are in order, the penalty recommended is not
commensurate to respondents infractions.
Plainly, respondent breached Section 25 of Rule 138 of the Rules of
Court, Rule 1.01 of Canon 1 and Rules 16.01, 16.02 and 16.03 of Canon
16 of the Code of Professional Responsibility which read:
SEC. 25 Unlawful retention of clients funds; contempt.--When an
attorney unjustly retains in his hands money of his client after it has been
demanded he may be punished for contempt as an officer of the Court
who has misbehaved in his official transactions; but proceedings under
this section shall not be a bar to a criminal prosecution.
CANON 1- A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY
THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND
LEGAL PROCESSES.
Rule 1.01- A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct.
CANON 16 - A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND
PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS
POSSESSION.
Rule 16.01-- A lawyer shall account for all money or property collected
or received for or from the client.
Rule 16.02-- A lawyer shall keep the funds of each client separate and
apart from his own and those of others kept by him.
Rule 16.03-- A lawyer shall deliver the funds and property of his client
when due or upon demand. However, he shall have a lien over the funds
and may apply so much thereof as may be necessary to satisfy his lawful
fees and disbursements, giving notice promptly thereafter to his client.
He shall also have a lien to the same extent on all judgments and
executions he has secured for his client as provided for in the Rules of
Court.
Respondents transgressions manifested dishonesty and amounted to
grave misconduct and grossly unethical behavior which caused
dishonor, not merely to respondent, but to the noble profession to which
he belongs, for it cannot be denied that the respect of litigants for the
profession is inexorably diminished whenever a member of the Bar
betrays their trust and confidence.
This Court has been nothing short of exacting in its demand for integrity
and good moral character from members of the Bar. In Marcelo v.
Javier (A.C. No. 3248, 18 September 1992, 214 SCRA 1, 12-13),
reiterated in Fernandez v. Grecia, (A.C. No. 3694, 17 June 1993, 223
SCRA 425, 434), this Court declared:
A lawyer shall at all times uphold the integrity and dignity of the legal
profession. The trust and confidence necessarily reposed by clients
require in the attorney a high standard and appreciation of his duty to his
clients, his profession, the courts and the public. The bar should maintain
a high standard of legal proficiency as well as of honesty and fair dealing
. Generally speaking, a lawyer can do honor to the legal profession by
faithfully performing his duties to society, to the bar, to the courts and to
his clients. To this end, nothing should be done by any member of the
legal fraternity which might tend to lessen in any degree the confidence
of the public in the fidelity, honesty and integrity of the profession.
Here, respondent chose to forget that by swearing the lawyers oath, he
became a guardian of truth and the rule of law and an indispensable
instrument in the fair and impartial administration of justice -- a vital
function of democracy a failure of which is disastrous to society.
Any departure from the path which a lawyer must follow as demanded
by the virtues of his profession shall not be tolerated by this Court as the
disciplining authority. This is specially so, as here, where respondent
even deliberately defied the lawful orders of the Court for him to file his
comment on the complaint, thereby transgressing Canon 11 of the Code
of Professional Responsibility which requires a lawyer to observe and
maintain the respect due the courts.
Page 273
WHEREFORE, for dishonesty, grave misconduct, grossly unethical
behavior in palpable disregard of Section 25 of Rule 138 of the Rules of
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Court, Rule 1.01 of Canon 1 and Rules 16.01, 16.02 and 16.03 of Canon
16 of the Code of Professional Responsibility, aggravated by a violation
of Canon 11 thereof, and consistent with the urgent need to maintain the
esteemed traditions and high standards of the legal profession and to
preserve undiminished public faith in the members of the Philippine Bar,
the Court Resolves to DISBAR respondent ATTY. FRANCISCO
RICAFORT from the practice law. His name is hereby stricken from the
Roll of Attorneys.
This resolution shall take effect immediately and copies thereof furnished
the Office of the Bar Confidant, to be appended to respondents personal
record; the National Office and the Albay Chapter of the Integrated bar
of the Philippines; the Philippines Judges Association; and all courts of
the land for their information and guidance.
SO ORDERED.
A.M. No. 2144 April 10, 1989
CELEDONIO QUILBAN, ROMUALDO DALAGAN, FORTUNATO
RAMIREZ AMADOR ALARCON and LUIS AGAWAN, complainant,
vs.
ATTY. SANTIAGO R. ROBINOL, respondent.
A.M. No. 2180 April 10, 1989
ATTY. SANTIAGO R. ROBINOL, complainant,
vs.
ATTY. A. R. MONTEMAYOR, respondent.
RESOLUTION
PER CURIAM:
Subjected to frustrations were the dreams of thirty-two (32) squatter
families to own the land of approximately 50 square meters each on
which their respective homes were built. To vindicate their rights they
have aired their plight before this Court. Thwarted, too, was the
benevolence shown by the original owner of the land which parted with
its property at a giveaway price thinking that it was accommodating the
landless squatters.
The antecedent facts follow:
The Colegio de San Jose, a Jesuit corporation, (Colegio, for short) used
to own a parcel of land at the Seminary Road, Barrio Bathala, Quezon
City. Through its administrator, Father Federico Escaler, it sold said land
to the Quezon City Government as the site for the Quezon City General
Hospital but reserved an area of 2,743 square meters as a possible
development site. Squatters, however, settled in the area since 1965 or
1966.
Sometime in 1970, the Colegio, through Father Escaler gave permission
to Congressman Luis R. Taruc to build on the reserved site a house for
his residence and a training center for the Christian Social Movement.
Seeing the crowded shanties of squatters, Congressman Taruc
broached to Father Escaler the Idea of donating or selling the land cheap
to the squatters. Congressman Taruc then advised the squatters to form
an organization and choose a leader authorized to negotiate with Father
Escaler. Following that advice, the squatters formed the "Samahang
Pagkakaisa ng Barrio Bathala" (Samahan, for brevity), with Bernabe
Martin as President (Exhibit "24", Robinol), who was entrusted with the
task of negotiating on their behalf for the sale of the land to them.
But instead of working for the welfare of the Samahan, Martin went to
one Maximo Rivera, a realtor, with whom he connived to obtain the sale
to the exclusion of the other Samahan members. On 28 March 1971, the
land was ultimately sold to Rivera at P 15 per square meter or a total
consideration of P 41,961.65. The prevailing price of the land in the
vicinity then was P 100 to P 120 per square meter. It was evident that
Father Escaler had been made to believe that Rivera represented the
squatters on the property. On the same date, 28 March 1971, Rivera
obtained TCT No. 175662 to the property in his name alone.
In 1972, thirty-two heads of families of the Samahan filed Civil Case No.
Q-16433, Branch IV, Quezon City, entitled "Celedonio Quilban, et al.,
Plaintiffs, vs. Maximo Rivera, et al., Defendants." with the principal
PINEDAPCGRNMAN
prayer that said defendants be ordered to execute a deed of conveyance
in favor of said plaintiffs after reimbursement by the latter of the
corresponding amount paid by Rivera to the Colegio. The Court of First
Instance of Quezon City, however, dismissed the case.
To prosecute the appeal before the Court of Appeals, the Samahan
members hired as their counsel Atty. Santiago R. Robinol for which the
latter was paid P 2,000.00 as attorney's fees on 8 October 1975 (Exhibit
"I"). Atty. Robinol was also to be given by the members a part of the land,
subject matter of the case, equal to the portion that would pertain to each
of them. What was initially a verbal commitment on the land sharing was
confirmed in writing on 10 March 1979 (Exhibit "2").
On 14 November 1978, the Court of Appeals reversed the CFI Decision
by:
(1) ordering defendant Maximo Rivera and all his co-defendants to
execute a deed of conveyance of the land in question in favor of herein
plaintiffs after the payment of the corresponding amount paid by the
defendants to the Colegio de San Jose, Inc., and in case of refusal or
failure on their part to do so, ordering the Clerk of Court to execute the
same in favor of plaintiffs and declaring TCT No. 175662 (Annex E) null
and void and ordering the Register of Deeds of Quezon City to cancel
said certificate and issue a new one in lieu thereof in the name of
plaintiffs-appellants, upon presentation of the deed of conveyance to be
executed in favor of appellants and (2) ordering appellees jointly and
severally to pay appellants the sum of P 2,000.00 as attomey's fees, plus
costs." (p. 30, Report and Recommendation)
To raise the amount of P 41,961.65 ordered paid by the Court of Appeals,
plus expenses for ejectment of the non-plaintiffs occupying the property,
conveyance, documentation, transfer of title etc., the five officers of the
Samahan collected, little by little, P 2,500.00 from each head of family.
The Treasurer, Luis Agawan, issued the proper receipts prepared by
Atty. Robinol. On 18 May 1979, the sum of P 68,970.00 was turned over
to Atty. Robinol by the officers; on 31 May 1979 the amounts of P
l,030.00 and P 2,500.00 respectively; and on 2 June 1979, the sum of P
2,500.00, or a total of P 75,000.00.
After almost a year, the five officers discovered that no payment had
been made to Rivera. When queried, Atty. Robinol replied that there was
an intervention filed in the civil case and that a Writ of Execution had not
yet been issued by the Court of First Instance of Quezon City. However,
it turned out that the motion for intervention had already been dismissed.
After confronting Atty. Robinol with that fact, the latter gave other
excuses, which the officers discovered to have no basis at all.
On 6 March 1980, 21 out of 32 plaintiffs arrived at a "first consensus" to
change their counsel, Atty. Robinol (Exhibit "3"). The officers of the
Samahan thereafter approached Atty. Anacleto R. Montemayor, who
agreed to be their counsel, after he was shown the document of 6 March
1980 containing the consensus of the Samahan members to change
Atty. Robinol as their lawyer. Upon Atty. Montemayor's advice, the
officers sent Atty. Robinol a letter dated 17 March 1980 informing the
latter of their decision to terminate his services and demanding the return
of the P 75,000.00 deposited with him (Exhibit "5"). Atty. Robinol turned
deaf ears to the demand. A subsequent letter of the same tenor, dated
31 March 1980 (Exhibit "6"), was similarly disregarded by Atty. Robinol.
On 20 March 1980, Atty. Montemayor formally entered his appearance
in Civil Case No. Q-16433 as counsel for the plaintiffs (Exhibit "8"), vice
Atty. Robinol, on the strength of the authority dated 18 March 1980 given
him by plaintiffs in said civil case through the five officers (Exhibit "9").
Atty. Montemayor then filed on 20 March 1980 a Motion for Execution
praying that the defendants and/or the Clerk of Court be directed to
execute a deed of conveyance in favor of the plaintiffs (Exhibit "10"). At
the hearing of the Motion for Execution on 5 June 1980, Atty. Robinol
manifested that he had no objection to the appearance of and his
substitution by Atty. Montemayor (Exhibits "11" & "11-A").
Because Atty. Robinol, however, still questioned the first consensus
dated 6 March 1980, another document labelled the "second consensus"
Page 274
(Exhibit "E") was signed by 21 plaintiffs during a meeting held for the
purpose on 24 November 1980 to the effect that they had decided to
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
change Atty. Robinol as their counsel because he had delayed paying
for their land notwithstanding the Decision of the Court of Appeals in their
favor.
Administrative Case No. 2144
On 15 April 1980 the Samahan officers filed this Administrative
Complaint before this Court requesting the invention of Atty. Robinol for
refusal to return the P 75,000.00 and praying that the Court exercise its
power of discipline over members of the Bar unworthy to practice law.
The details of their Complaint were embodied in their Joint Affidavit
executed on 14 April 1980 describing what had transpired between them
and Atty. Robinol.
In his defense, Atty. Robinol maintains that he was hired by
Complainants to appeal their case to the Court of appeals after they had
lost in the lower Court; that their agreement as to attomey's fees was on
a contingent basis if he obtains a reversal of the lower Court Decision,
they wig give him a portion of the property subject matter of the litigation
equal to the portion that will pertain to each of the 32 plaintiffs in Civil
Case No. Q-16433; that he did not receive P 70,000.00 from
Complainants on 18 May 1979 but only P 56,470.00; that he prepared
and signed the receipt dated 18 May 1979 showing that he received P
70,000.00 only to save complainants from embarrassment and shame
should their co-plaintiff ask for proof that they (Complainants) have paid
their shares, which they have not; that the correct amount in his
possession is only P 62,470.00-it would really be P 75,000.00 had the
five Complainants paid their shares in the amount of P 12,500.00 at P
2,500.00 each and one Fortunate Ramirez paid his balance of P 30.00;
that he had the right to hold the money in his possession as guarantee
for the payment of his attomey's fees of get a portion of the property that
win pertain to each of the plaintiffs, he wants his portion converted to
cash, and the cash equivalent of his portion is P 50,000.00 (2,743 square
meters divided by 32 plaintiffs equals 85 square meters for each plaintiff,
multiplied by P 500.00 up per square meter); that considering that P
50,000.00 is even less than one-half (1/ 2) per cent of the total value of
the property, which is more than a million pesos, such amount is not
unreasonable; that he is ready to give back the amount of P 12,470.00,
representing the difference between P 50,000.00 and the amount of P
62,470.00 in his possession; that complainants cannot make this Court
a collection agency and that while this Court has the exclusive
disciplinary power over members of the Bar, it is equally true that the
Court cannot pass judgment on Complainants' plea that the amount
deposited by respondent be returned to them as this prayer should be
ventilated in an ordinary action; that he does not have the slightest
intention to appropriate the money in his possession (P 62,470.00) for
himself, but he is holding it until his attomey's fees are satisfied there
being no guarantee for its satisfaction because of Complainants'
adamant refusal to pay him; that there was no previous notice to him of
his discharge; and that Atty. Montemayor accepted the case without his
Robinols formal withdrawal and conformity.
Administrative Case No. 2180
Pursuing that tack on 29 July 1980, Atty. Robinol filed a complaint for
Disbarment against Atty. Anacleto R. Montemayor for alleged gross
unethical conduct unbecoming of a lawyer in that Atty. Montemayor
readily accepted the case without his Robinols formal withdrawal and
conformity and knowing fully well that there was no consensus of all the
plaintiffs to discharge him as their counsel.
For his part, Atty. Montemayor denied that the attomey's fees agreed
upon by plaintiffs and Atty. Robinol were purely on a contingent basis,
the truth being that the attomey's fees were payable on a cash basis of
P 2,000.00 retainer fee, as evidenced by the receipt signed by Atty.
Robinol (Annex "I"), plus whatever amount is adjudicated as attomey's
fees by the Court of Appeals; that the contingent fee referred to by Atty.
Robinol was the result of his insistent demand after the Court of Appeals
Decision in Civil Case No. Q-16433 was already final, as shown by the
date of the agreement (Annex "2"); that twenty [20] out of thirty-two [32]
members of the Samahan signed the agreement to discharge Atty.
Robinol and hire a substitute counsel as shown by Annex "3", which is a
PINEDAPCGRNMAN
majority of the membership and, therefore, a valid consensus; that he
agreed to act as counsel if only to arrest the growing belief of the
Samahan that most members of the Philippine Bar are unprincipled; that
although there was no formal Motion for substitution, there was
substantial compliance with Sec. 26, Rule 138 of the Rules of Court, as
shown by the formal entry of appearance in Civil Case No. Q-1 6433
(Annex "8"), the written consent of the clients (Annex "9"), notice to Atty.
Robinol of his discharge and substitution (Annexes "10' and "11"), non-
objection by Robinol of his appearance as counsel (Annex "l 2"), and
implied consent of the Court to the substitution as shown by its Order of
29 May 1980 (Annex "l 3"); that his professional and personal actuations
as counsel for the plaintiffs in Civil Case No. Q-16433, CFI-Quezon City,
do not cause dishonor either to himself or to the Philippine Bar; and that
the Complaint against him should be dismissed.
On 1 September 1980 and on 17 December 1980, the Court referred
Adm. Case No. 2144 and Adm. Case No. 2180, respectively, to the
Office of the Solicitor General for investigation, report and
recommendation. On 15 December 1988, the Solicitor General
submitted his compliance and recommended:
1. That Atty. Santiago R. Robinol be suspended for three months for
refusing to deliver the funds of the plaintiffs in his possession, with the
warning that a more severe penalty will be imposed for a repetition of the
same or similar act, and that he be ordered to return to the plaintiffs,
through the complainants in Adm. Case No. 2134, the sum of P
75,000.00.
2. That the case against Atty. Anacleto R. Montemayor, Adm. Case No.
2180, be dismissed, since he has not committed any misconduct
imputed to him by Atty. Robinol. (pp. 59-60, Rollo)
Except for the disciplinary sanction suggested for Atty. Robinol, we
concur with the recommendations.
Re: Atty. Santiago R. Robinol
Atty. Robinol has, in fact, been guilty of ethical infractions and grave
misconduct that make him unworthy to continue in the practice of the
profession. After the Court of Appeals had rendered a Decision favorable
to his clients and he had received the latter's funds, suddenly, he had a
change of mind and decided to convert the payment of his fees from a
portion of land equivalent to that of each of the plaintiffs to P 50,000.00,
which he alleges to be the monetary value of that area. Certainly, Atty.
Robinol had no right to unilaterally appropriate his clients' money not only
because he is bound by a written agreement but also because, under
the circumstances, it was highly unjust for him to have done so. His
clients were mere squatters who could barely eke out an existence They
had painstakingly raised their respective quotas of P 2,500.00 per family
with which to pay for the land only to be deprived of the same by one
who, after having seen the color of money, heart lessly took advantage
of them.
Atty. Robinol has no basis to claim that since he was unjustly dismissed
by his clients he had the legal right to retain the money in his possession.
Firstly, there was justifiable ground for his discharge as counsel. His
clients had lost confidence in him for he had obviously engaged in
dilatory tactics to the detriment of their interests, which he was duty-
bound to protect. Secondly, even if there were no valid ground, he is
bereft of any legal right to retain his clients' funds intended for a specific
purpose the purchase of land. He stands obliged to return the money
immediately to their rightful owners.
The principle of quantum meruit applies if a lawyer is employed without
a price agreed upon for his services in which case he would be entitled
to receive what he merits for his services, as much as he has earned. In
this case, however, there was an express contract and a stipulated mode
of compensation. The implied assumpsit onquantum meruit therefore, is
inapplicable.
But Atty. Robinol seeks to impress upon the Court that he had received
only the sum of P 62,470.00 and not P 75,000.00 claiming that five (5)
officers of the Samahan had not yet paid their shares to P 12,500.00.
Page 275
We agree with the Solicitor General that complainants' evidence on this
score is the more credible and that he had, in fact, received the total sum
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
of P 75,000.00 inclusive of the share of P 12,500.00 of the five (5) officers
of the Somalian For, in the pleadings filed by Atty. Robinol himself in the
civil case below, namely, the Motion for Execution on 5 June 1979; the
Motion for Postponement on 31 August 1979; and the Motion to Set
Hearing of Motion for Execution on 10 March 1980, he made mention of
seven (7) persons, who, as of that time, had not yet submitted their
corresponding shares which list, however, did not include any of the five
(5) officers of the Samahan.
Inevitable, therefore, is the conclusion that Atty. Robinol has rendered
himself unfit to continue in the practice of law. He has not only violated
his oath not to delay any man for money and to conduct himself with all
good fidelity to his clients. He has also brought the profession into
disrepute with people who had reposed in it full faith and reliance for the
fulfillment of a life-time ambition to acquire a homelot they could call their
own.
Re: Atty. Anacleto R. Montemayor
In so far as Atty. Montemayor is concerned, we agree with the findings
of the Solicitor General that he has not exposed himself to any plausible
charge of unethical conduct in the exercise of his profession when he
agreed to serve as counsel for the plaintiffs in Civil Case No. Q-16433.
Of the thirty-two (32) plaintiffs in said civil case, twenty-one (21) had
signed the first consensus of 6 March 1980 expressing their resolve to
change their lawyer. In as much as Atty. Robinol sought to exclude seven
(7) of the plaintiffs (out of 32) for non-payment of their shares, only twenty
five (25) of them should be considered in determining the majority.
Consequently, twenty-one (21) out of twenty-five (25) is sufficient to
make the said consensus binding. It is more than a simple majority.
Moreover, the following developments estop Atty. Robinol from
questioning his discharge as counsel: On 17 March 1980 he was
informed in writing by plaintiffs of the termination of his services (Exhibit
"5"). That was followed by another letter of 31 March 1980 of the same
tenor (Exhibit "6"). In his Memorandum of 12 December 1985 and during
the proceedings before the lower Court on 5 June 1980 he had stated
that he had no objection to Atty. Montemayor's appearance in Civil Case
Q-16433. When the latter did enter his appearance, therefore, on 20
March 1980 it was only after assuring himself that Atty. Robinol's
services had been formally terminated. He had in no way encroached
upon the professional employment of a colleague.
There is no gainsaying that clients are free to change their counsel in a
pending case at any time (Section 26, Rule 138, Rules of Court) and
thereafter employ another lawyer who may then enter his appearance.
In this case, the plaintiffs in the civil suit below decided to change their
lawyer, Atty. Robinol, for loss of trust and confidence. That act was well
within their prerogative.
In so far as the complaint for disbarment filed by Atty. Robinol against
Atty. Montemayor is concerned, therefore, we find the same absolutely
without merit.
ACCORDINGLY, 1) In Administrative Case No. 2144, Atty. Santiago R.
Robinol is hereby DISBARRED for having violated his lawyer's oath to
delay no man for money, broken the fiduciary relation between lawyer
and client, and proven himself unworthy to continue in the practice of
law. By reason of his unethical actuations, he is hereby declared to have
forfeited his rights to attomey's fees and is ordered to return the amount
of P 75,000.00 to the plaintiffs in Civil Case No. Q-16433 through the
complainant in the aforementioned Administrative Case.
2) Administrative Case No. 2180 against Atty. Anacleto R. Montemayor
for disbarment is hereby DISMISSED for lack of merit.
Let copies of this Resolution be entered in the respective personal
records of Attys. Santiago R. Robinol and Anacleto R. Montemayor.
This Resolution is immediately executory.
SO ORDERED.
Rule 16.04 A lawyer shall not borrow money from his client unless
the clients interests are fully protected by the nature of the case or
by independent advice. Neither shall a lawyer lend money to a
PINEDAPCGRNMAN
client except, when in the interest of justice, he has to advance
necessary expenses in the legal matter he is handling for the client.
Attorneys lien is not an excuse for non-rendition of
accounting
Cannot disburse clients money to clients creditors without
authority.
Failure to deliver upon demand gives rise to the presumption
that he has misappropriated the funds for his own use to the
prejudice of the client and in violation of the trust reposed in
him.
Notify client if retaining lien shall be implemented
When a lawyer enforces a charging lien against his client, the
client-lawyer relationship is terminated.
The principle behind Rule 16.04 is to prevent the lawyer from
taking advantage of his influence over the client or to avoid
acquiring a financial interest in the outcome of the case.
[A.M. No. 5925. March 11, 2003]
RUBY MAE BARNACHEA, complainant, vs. ATTY. EDWIN T.
QUIOCHO, respondent.
RESOLUTION
CALLEJO, SR., J.:
On January 3, 2002, Ruby Mae Barnachea filed a verified complaint for
breach of lawyer-client relations against respondent Atty. Edwin T.
Quiocho.
It appears that respondent had not been in the private practice of the law
for quite some time. However, in September 2001, he decided to revive
his legal practice with some associates. Complainant engaged the legal
services of respondent for the latter to cause the transfer under her name
of the title over a property covered by Transfer Certificate of Title No.
334411 previously owned by her sister, Lutgarda Amor D. Barnachea.
The latter sold said property to complainant under an unnotarized deed
of absolute sale. Complainant drew and issued BPI Family Bank Check
No. 0052304 in the amount of P11,280.00 and BPI Family Bank Check
No. 0052305 in the amount of P30,000.00, both dated September 5,
2001, or the total amount of P41,280.00 for the expenses for said
transfer and in payment for respondents legal services. Respondent
enchased the checks.
However, despite the lapse of almost two months, respondent failed to
secure title over the property in favor of complainant. The latter
demanded that respondent refund to her the amount of P41,280.00 and
return the documents which she earlier entrusted to him. However,
respondent failed to comply with said demands. On November 1, 2001,
complainant received a letter from respondent informing her that he had
failed to cause the transfer of the property under her name and that he
was returning the documents and title she had entrusted to him and
refunding to her the amount of P41,280.00 through his personal check
No. DIL 0317787. Said check was drawn against his account with the
Bank of Commerce (Diliman Branch) in the amount of P41,280.00 and
was postdated December 1, 2001. Respondent told complainant that he
needed more time to fund the check. However, respondent failed to fund
the check despite the demands of complainant.
In his Answer to the complaint, respondent denied that complainant
contracted his legal services. Although respondent admitted having
received the two checks from complainant, he claimed that said checks
were intended to cover actual and incidental expenses for transportation,
communication, representation, necessary services, taxes and fees for
the cancellation and transfer of TCT No. 334411 under the name of
complainant and not for legal services. He asserted that he acted in good
faith as shown by the fact of his return of complainants documents with
an explanatory letter and his issuance of a personal check
for P41,280.00 dated December 1, 2001. He insisted that he would not
compromise for such meager amount his personal standing as well as
Page 276
his membership in the legal profession. His failure to transfer the title of
the property under the name of the complainant was caused by his
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
difficulty in making good the claimed amount, compounded by his
affliction with diabetes and the consequent loss of sight of his right eye.
Respondent further alleged that he was a licensed real estate and
insurance broker and had been a freelance business management
consultant. At the same time he engaged in real estate brokering, pre-
need products marketing for Prudential Life, and life insurance
underwriting for Insular Life. In 1999, he gave up the practice of his
profession as a lawyer and subsequently managed to put up a business
center with fellow insurance underwriters for their common insurance
underwriting practice. He further claimed that sometime in August, 2001,
an insurance client introduced complainant as an insurance prospect to
him. In the course of their dealing, complainant intimated to respondent
her willingness to consider respondents insurance proposal provided the
latter would help her facilitate the cancellation and eventual transfer to
her name the property covered by TCT No. 334411 in the name of
complainants sister, Lutgarda Amor D. Barnachea. Respondent agreed
to help complainant in the transfer of the title to her name, with the
condition that no diligent study or verification of complainants
documents, nor preparation of any additional document or any
application or petition whatsoever, will be made by respondent. He
explained to complainant that his task was merely to go through the
regular process of presenting the available documents, paying the taxes
and fees, and following up the processing for the cancellation and
issuance of the certificate of title. In other words, respondent offered to
complainant services which a non-lawyer familiar with the procedure and
the related offices can perform and provide to the complainant with
respect to the transfer of the title of the property in her name.
Respondent asserted that in the latter part of September 2001, he
discovered and became aware for the first time that the original copy of
TCT No. 334411 with the Register of Deeds of Quezon City was
destroyed in a fire in Quezon City Hall several years earlier and that
complainants copy of the title needed to be reconstituted before it can be
cancelled and transferred.At about the same time, the working relations
of respondent in the business center with his non-lawyer associates had
become difficult and strained, impelling him to sever his business
relations with them and cease from to going to the business center.
Consequently, telephone communications between respondent and
complainant at the business center was cut.Communications became
much more limited when, apart from the fact that respondent did not have
a landline at his residence, respondents mobile phone was stolen
sometime in October 2001.
The Integrated Bar of the Philippines (IBP) designated Atty. Dennis B.
Funa as Commissioner to conduct a formal investigation of the
complaint. Despite several settings, respondent failed to appear and
adduce evidence.
On April 26, 2002, Investigating Commissioner Dennis B. Funa
submitted his report and recommendation stating in part that:
1. Respondent is not able to meet his financial obligations due to
financial difficulties, and that respondent is in good faith in his failure to
meet this obligation.
2. It is recommended that respondent be ORDERED TO REPAY HIS
CLIENT within ninety (90) days from receipt of this Decision. The
principal amount being P41,280.00. Failure to comply with the Order
shall be considered as proof of evident bad faith, and shall be considered
in the continuing evaluation of the case in view of the continued failure
to repay his client.
3. Respondent should also be given a WARNING that a repetition shall
be dealt with more severely.[1]
The Investigating Commissioner gave credence to the claim of
complainant that she engaged the legal services of respondent and paid
him for his services and that respondent failed in his undertaking and
refund the amount of P41,280.00 to complainant despite her demands
and that respondent appeared to be evading the complainant.
On October 19, 2002, the IBP Board of Governors passed Resolution
No. XV-2002-550 adopting and approving the Investigating
PINEDAPCGRNMAN
Commissioners recommendation with the additional sanction
of reprimand for respondent:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, the Report and Recommendation of the Investigating
Commissioner of the above-entitled case, herein made part of this
Resolution/Decision as Annex A; and, finding the recommendation fully
supported by the evidence on record and the applicable laws and rules,
with modification. Respondent is hereby reprimanded and ordered to
return the Forty One Thousand Two Hundred Eighty (P41,280.00) Pesos
to complainant within ninety (90) days from receipt of notice.[2]
While the Court agrees with the Board of Governors that respondent
should be meted a disciplinary sanction, it finds that the penalty of
reprimand recommended by the Board of Governors is not
commensurate to the gravity of the wrong committed by respondent. As
found by the Investigating Commissioner, the complainant engaged the
legal services of the respondent. As admitted in his letter to the
complainant, respondent had just resumed his private practice of law two
months before complainant contracted his services for the notarization
of the Deed of Absolute Sale, the registration thereof with the Register
of Deeds and the transfer of the title over the property to the complainant:
NOVEMBER 1, 2002
DEAR RUBY,
I AM SORRY I AM RETURNING YOUR DOCUMENTS WITHOUT
CHANGES.
I HAD A SERIES OF MONEY PROBLEMS RIGHT AFTER YOU GAVE
ME THE TWO CHECKS AND COMING WITH THE AMOUNTS WITH
PERSONAL FUNDS.
I WAS REVIVING MY LEGAL PRACTICE ONLY FOR TWO MONTHS
WHICH WE MET AND HAD JUST SET UP THE OFFICE WITH TWO
ASSOCIATES WHICH A FEW WEEKS LATER WE HAD
DISAGREEMENTS AND DECIDED TO DISBAND. I WILL HAVE TO
REFURBISH MY OFFICE. I AM ISSUING MY PERSONAL CHECK TO
GUARANTEE THE AMOUNT I TOOK. I NEED A LITTLE TIME TO
COVER THE AMOUNT. THANKS FOR YOUR UNDERSTANDING.
(Sgd.) EDWIN.[3]
Respondents claim that complainant did not retain his legal services flies
in the face of his letter to complainant. Even if it were true that no
attorney-client relationship existed between them, case law has it that an
attorney may be removed or otherwise disciplined not only for
malpractice and dishonesty in the profession but also for gross
misconduct not connected with his professional duties, making him unfit
for the office and unworthy of the privileges which his license and the law
confer upon him.[4]
In this case, respondent failed to comply with his undertaking for almost
two months. Worse, despite demands of complainant, he failed to refund
the amount of P41,280.00 and to return to complainant the deed of
absolute sale and title over the property. Respondents claim that
complainant could not contact him because he did not have any landline
at his residence and that his mobile phone was stolen in October 2001,
is hard to believe. He failed to adduce a morsel of evidence to prove that
his telephone at the business center was cut or that his mobile phone
had been stolen. Even then, respondent could have easily contacted the
complainant at her residence or could have written her a letter informing
her that the original copy of TCT No. 324411 in the custody of the
Register of Deeds was burned when the Quezon City Hall was gutted by
fire and that there was a need for the reconstitution of said title. Neither
did respondent adduce evidence that he was a life insurance underwriter
for Insular Life or that he had been sick with diabetes and had lost his
sight in his right eye. Respondent simply refused to adduce evidence to
prove his allegations in his Answer to the complaint.
The Court is led to believe that respondents failure to cause the transfer
of the title of the property under the name of complainant was due to a
financial problem that beset him shortly after he received the checks from
complainant. It can easily be inferred from respondents letter that he
Page 277
used complainants money to alleviate if not solve his financial
woes. What compounded respondents unethical conduct was his
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
drawing of a personal check and delivering the same to complainant
without sufficient funds in his bank account to cover the check.Even as
he promised to fund his account with the drawee bank, respondent failed
to do so when the check became due.
A lawyer is obliged to hold in trust money or property of his client that
may come to his possession. He is a trustee to said funds and
property.[5] He is to keep the funds of his client separate and apart from
his own and those of others kept by him. Money entrusted to a lawyer for
a specific purpose such as for the registration of a deed with the Register
of Deeds and for expenses and fees for the transfer of title over real
property under the name of his client if not utilized, must be returned
immediately to his client upon demand therefor. The lawyers failure to
return the money of his client upon demand gave rise to a presumption
that he has misappropriated said money in violation of the trust reposed
on him.[6] The conversion by a lawyer funds entrusted to him by his client
is a gross violation of professional ethics and a betrayal of public
confidence in the legal profession.[7]
In this case, respondent intransigeantly refused to return to the
complainant the amount of P41,280.00 which he received for the
expenses for the transfer to her of the title of the property and for his
professional fees. His dishonest conduct was compounded by his
interjection of flimsy excuses for his obstinate refusal to refund the
amount to complainant.
The relation of attorney and client is highly fiduciary in nature and is of a
very delicate, exacting and confidential character. [8] A lawyer is duty-
bound to observe candor, fairness and loyalty in all his dealings and
transactions with his clients.[9] The profession, therefore, demands of an
attorney an absolute abdication of every personal advantage conflicting
in any way, directly or indirectly, with the interest of his client. In this case,
respondent miserably failed to measure up to the exacting standard
expected of him.
IN LIGHT OF ALL THE FOREGOING, Respondent Atty. Edwin T.
Quiocho is found guilty of violation of Canons 15 and 16 of the Code of
Professional Responsibility. He is SUSPENDED from the practice of law
for One (1) Year with a stern warning that a repetition of the same or
similar acts shall be dealt with more severely. He is DIRECTED to
restitute to the complainant the full amount of P41,280.00 within ten (10)
days from notice hereof. Respondent is further DIRECTED to submit to
the Court proof of payment of said amount within ten (10) days from said
payment. If Respondent fails to restitute the said amount within the
aforesaid period, he shall be meted an additional suspension of three (3)
months for every month or fraction thereof of delay until he shall have
paid the said amount in full. In case a subsidiary penalty of suspension
for his failure to restitute the said amount shall be necessary, respondent
shall serve successively the penalty of his one year suspension and the
subsidiary penalty. This is without prejudice to the right of the
complainant to institute the appropriate action for the collection of said
amount.
SO ORDERED.
G.R. No. L-35702 May 29, 1973
DOMINGO D. RUBIAS, plaintiff-appellant,
vs.
ISAIAS BATILLER, defendant-appellee.
Gregorio M. Rubias for plaintiff-appellant.
Vicente R. Acsay for defendant-appellee.
TEEHANKEE, J.:
In this appeal certified by the Court of Appeals to this Court as involving
purely legal questions, we affirm the dismissal order rendered by the
Iloilo court of first instance after pre-trial and submittal of the pertinent
documentary exhibits.
Such dismissal was proper, plaintiff having no cause of action, since it
was duly established in the record that the application for registration of
the land in question filed by Francisco Militante, plaintiff's vendor and
PINEDAPCGRNMAN
predecessor interest, had been dismissed by decision of 1952 of the land
registration court as affirmed by final judgment in 1958 of the Court of
Appeals and hence, there was no title or right to the land that could be
transmitted by the purported sale to plaintiff.
As late as 1964, the Iloilo court of first instance had in another case of
ejectment likewise upheld by final judgment defendant's "better right to
possess the land in question . having been in the actual possession
thereof under a claim of title many years before Francisco Militante sold
the land to the plaintiff."
Furthermore, even assuming that Militante had anything to sell, the deed
of sale executed in 1956 by him in favor of plaintiff at a time when plaintiff
was concededly his counsel of record in the land registration case
involving the very land in dispute (ultimately decided adversely against
Militante by the Court of Appeals' 1958 judgment affirming the lower
court's dismissal of Militante's application for registration) was properly
declared inexistent and void by the lower court, as decreed by Article
1409 in relation to Article 1491 of the Civil Code.
The appellate court, in its resolution of certification of 25 July 1972, gave
the following backgrounder of the appeal at bar:
On August 31, 1964, plaintiff Domingo D. Rubias, a lawyer, filed a suit to
recover the ownership and possession of certain portions of lot under
Psu-99791 located in Barrio General Luna, Barotac Viejo, Iloilo which he
bought from his father-in-law, Francisco Militante in 1956 against its
present occupant defendant, Isaias Batiller, who illegally entered said
portions of the lot on two occasions in 1945 and in 1959. Plaintiff
prayed also for damages and attorneys fees. (pp. 1-7, Record on
Appeal). In his answer with counter-claim defendant claims the complaint
of the plaintiff does not state a cause of action, the truth of the matter
being that he and his predecessors-in-interest have always been in
actual, open and continuous possession since time immemorial under
claim of ownership of the portions of the lot in question and for the
alleged malicious institution of the complaint he claims he has suffered
moral damages in the amount of P 2,000.00, as well as the sum of
P500.00 for attorney's fees. ...
On December 9, 1964, the trial court issued a pre-trial order, after a pre-
trial conference between the parties and their counsel which order reads
as follows..
'When this case was called for a pre-trial conference today, the plaintiff
appeared assisted by himself and Atty. Gregorio M. Rubias. The
defendant also appeared, assisted by his counsel Atty. Vicente R. Acsay.
A. During the pre-trial conference, the parties have agreed that
the following facts are attendant in this case and that they will no longer
introduced any evidence, testimonial or documentary to prove them:
1. That Francisco Militante claimed ownership of a parcel of land located
in the Barrio of General Luna, municipality of Barotac Viejo province of
Iloilo, which he caused to be surveyed on July 18-31, 1934, whereby he
was issued a plan Psu-99791 (Exhibit "B"). (The land claimed contained
an area of 171:3561 hectares.)
2. Before the war with Japan, Francisco Militante filed with the Court of
First Instance of Iloilo an application for the registration of the title of the
land technically described in psu-99791 (Exh. "B")opposed by the
Director of Lands, the Director of Forestry and other oppositors.
However, during the war with Japan, the record of the case was lost
before it was heard, so after the war Francisco Militante petitioned this
court to reconstitute the record of the case. The record was
reconstituted on the Court of the First Instance of Iloilo and docketed
as Land Case No. R-695, GLRO Rec. No. 54852. The Court of First
Instance heard the land registration case on November 14, 1952,
and after the trial this court dismissed the application for registration. The
appellant, Francisco Militante, appealed from the decision of this Court
to the Court of Appeals where the case was docketed as CA-GR No.
13497-R..
3. Pending the disposal of the appeal in CA-GR No. 13497-R and more
particularly on June 18, 1956, Francisco Militante sold to the plaintiff,
Page 278
Domingo Rubias the land technically described in psu-99791 (Exh. "A").
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
The sale was duly recorded in the Office of the Register of Deeds for the
province of Iloilo as Entry No. 13609 on July 11, 1960 (Exh. "A-1").
(NOTE: As per deed of sale, Exh. A, what Militante purportedly sold to
plaintiff-appellant, his son-in-law, for the sum of P2,000.00 was "a parcel
of untitled land having an area Of 144.9072 hectares ... surveyed under
Psu 99791 ... (and) subject to the exclusions made by me, under
(case) CA-i3497, Land Registration Case No. R-695, G.L.R.O. No.
54852, Court of First Instance of the province of Iloilo. These exclusions
referred to portions of the original area of over 171 hectares originally
claimed by Militante as applicant, but which he expressly recognized
during the trial to pertain to some oppositors, such as the Bureau of
Public Works and Bureau of Forestry and several other individual
occupants and accordingly withdrew his application over the same. This
is expressly made of record in Exh. A, which is the Court of Appeals'
decision of 22 September 1958 confirming the land registration
court's dismissal of Militante's application for registration.)
4. On September 22,1958 the Court of appeals in CA-G.R. No. 13497-R
promulgated its judgment confirming the decision of this Court in Land
Case No. R-695, GLRO Rec. No. 54852 which dismissed the application
for Registration filed by Francisco Militante (Exh. "I").
5. Domingo Rubias declared the land described in Exh. 'B' for taxation
purposes under Tax Dec. No. 8585 (Exh. "C") for 1957; Tax Dec. Nos.
9533 (Exh. "C-1") and 10019 (Exh. "C-3")for the year 1961; Tax Dec. No.
9868 (Exh. "C-2") for the year 1964, paying the land taxes under Tax
Dec. No. 8585 and 9533 (Exh. "D", "D-1", "G-6").
6. Francisco Militante immediate predecessor-in-interest of the plaintiff,
has also declared the land for taxation purposes under Tax Dec. No.
5172 in 1940 (Exh. "E") for 1945; under Tax Dec. No. T-86 (Exh. "E-1")
for 1948; under Tax Dec. No. 7122 (Exh. "2"), and paid the land taxes
for 1940 (Exhs. "G" and "G-7"), for 1945 46 (Exh. "G-1") for 1947 (Exh.
"G-2"), for 1947 & 1948 (Exh. "G-3"), for 1948 (Exh. "G-4"), and for 1948
and 1949 (Exh. "G-5").
7. Tax Declaration No. 2434 in the name of Liberato Demontao for the
land described therein (Exh. "F") was cancelled by Tax. Dec. No. 5172
of Francisco Militante (Exh. "E"). Liberato Demontao paid the land tax
under Tax Dec. No. 2434 on Dec. 20, 1939 for the years 1938 (50%) and
1959 (Exh. "H").
8. The defendant had declared for taxation purposes Lot No. 2 of the
Psu-155241 under Tax Dec. Not. 8583 for 1957 and a portion of Lot No.
2, Psu-155241, for 1945 under Tax Dec. No. 8584 (Exh. "2-A" Tax No.
8583 (Exh. "2") was revised by Tax Dec. No. 9498 in the name of the
defendant (Exh. "2-B") and Tax Dec. No. 8584 (Exh. "2-A") was
cancelled by Tax Dec. No. 9584 also in the name of the defendant (Exh.
"2-C"). The defendant paid the land taxes for Lot 2, Psu-155241, on Nov.
9, 1960 for the years 1945 and 1946, for the year 1950, and for the year
1960 as shown by the certificate of the treasurer (Exh. "3"). The
defendant may present to the Court other land taxes receipts for the
payment of taxes for this lot.
9. The land claimed by the defendant as his own was surveyed on June
6 and 7,1956, and a planapproved by Director of Land on November 15,
1956 was issued, identified as Psu 155241 (Exh. "5").
10. On April 22, 1960, the plaintiff filed forcible Entry and Detainer
case against Isaias Batiller in the Justice of the Peace Court of Barotac
Viejo Province of Iloilo (Exh. "4") to which the defendant Isaias Batiller
riled his answer on August 29, 1960 (Exh. "4-A"). The Municipal Court of
Barotac Viejo after trial, decided the case on May 10, 1961 in favor of
the defendant and against the plaintiff (Exh. "4-B"). The
plaintiff appealed from the decision of the Municipal Court of Barotac
Viejo which was docketed in this Court as Civil Case No. 5750 on June
3, 1961, to which the defendant, Isaias Batiller, on June 13, 1961 filed
his answer (Exh. "4-C"). And this Court after the trial. decided the case
on November 26, 1964, in favor of the defendant, Isaias Batiller and
against the plaintiff (Exh. "4-D").
(NOTE: As per Exh. 4-B, which is the Iloilo court of first instance decision
of 26 November 1964dismissing plaintiff's therein complaint for
ejectment against defendant, the iloilo court expressly found "that
PINEDAPCGRNMAN
plaintiff's complaint is unjustified, intended to harass the defendant" and
"that the defendant, Isaias Batiller, has a better right to possess the land
in question described in Psu 155241 (Exh. "3"), Isaias Batiller having
been in the actual physical possession thereof under a claim of title
many years before Francisco Militante sold the land to the plaintiff-
hereby dismissing plaintiff'scomplaint and ordering the plaintiff to pay the
defendant attorney's fees ....")
B. During the trial of this case on the merit, the plaintiff will prove by
competent evidence the following:
1. That the land he purchased from Francisco Militante under Exh. "A"
was formerly owned and possessed by Liberato Demontao but that on
September 6, 1919 the land was sold at public auction by virtue of a
judgment in a Civil Case entitled "Edw J. Pflieder plaintiff vs. Liberato
Demontao Francisco Balladeros and Gregorio Yulo, defendants", of
which Yap Pongco was the purchaser (Exh. "1-3"). The sale was
registered in the Office of the Register of Deeds of Iloilo on August 4,
1920, under Primary Entry No. 69 (Exh. "1"), and a definite Deed of Sale
was executed by Constantino A. Canto, provincial Sheriff of Iloilo, on Jan.
19, 1934 in favor of Yap Pongco (Exh. "I"), the sale having been
registered in the Office of the Register of Deeds of Iloilo on February 10,
1934 (Exh. "1-1").
2. On September 22, 1934, Yap Pongco sold this land to Francisco
Militante as evidenced by a notarial deed (Exh. "J") which was registered
in the Registry of Deeds on May 13, 1940 (Exh. "J-1").
3. That plaintiff suffered damages alleged in his complaint.
C. Defendants, on the other hand will prove by competent evidence
during the trial of this case the following facts:
1. That lot No. 2 of the Psu-1552 it (Exh. '5') was originally owned and
possessed by Felipe Batiller, grandfather of the defendant Basilio
Batiller, on the death of the former in 1920, as his sole heir. Isaias Batiller
succeeded his father , Basilio Batiller, in the ownership and possession
of the land in the year 1930, and since then up to the present, the land
remains in the possession of the defendant, his possession being actual,
open, public, peaceful and continuous in the concept of an owner,
exclusive of any other rights and adverse to all other claimants.
2. That the alleged predecessors in interest of the plaintiff have never
been in the actual possession of the land and that they never had any
title thereto.
3. That Lot No. 2, Psu 155241, the subject of Free Patent application of
the defendant has beenapproved.
4. The damages suffered by the defendant, as alleged in his
counterclaim."' 1
The appellate court further related the developments of the case, as
follows:
On August 17, 1965, defendant's counsel manifested in open court that
before any trial on the merit of the case could proceed he would file
a motion to dismiss plaintiff's complaint which he did, alleging
that plaintiff does not have cause of action against him because the
property in dispute which he (plaintiff) allegedly bought from his father-
in-law, Francisco Militante was the subject matter of LRC No. 695 filed
in the CFI of Iloilo, which case was brought on appeal to this Court and
docketed as CA-G.R. No. 13497-R in which aforesaid case plaintiff was
the counsel on record of his father-in-law, Francisco Militante. Invoking
Arts. 1409 and 1491 of the Civil Code which reads:
'Art. 1409. The following contracts are inexistent and void from the
beginning:
xxx xxx xxx
(7) Those expressly prohibited by law.
'ART. 1491. The following persons cannot acquire any purchase, even
at a public auction, either in person of through the mediation of another:
.
xxx xxx xxx
(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior
courts, and other officers and employees connected with the
Page 279
administration of justice, the property and rights of in litigation or levied
upon an execution before the court within whose jurisdiction or territory
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
they exercise their respective functions; this prohibition includes the act
of acquiring an assignment and shall apply tolawyers, with respect to the
property and rights which may be the object of any litigation in which they
may take part by virtue of their profession.'
defendant claims that plaintiff could not have acquired any interest in the
property in dispute as the contract he (plaintiff) had with Francisco
Militante was inexistent and void. (See pp. 22-31, Record on Appeal).
Plaintiff strongly opposed defendant's motion to dismiss claiming that
defendant can not invoke Articles 1409 and 1491 of the Civil Code as
Article 1422 of the same Code provides that 'The defense of illegality of
contracts is not available to third persons whose interests are not directly
affected' (See pp. 32-35 Record on Appeal).
On October 18, 1965, the lower court issued an order disclaiming
plaintiffs complaint (pp. 42-49, Record on Appeal.) In the aforesaid order
of dismissal the lower court practically agreed with defendant's
contention that the contract (Exh. A) between plaintiff and Francism
Militante was null and void. In due season plaintiff filed a motion for
reconsideration (pp. 50-56 Record on Appeal) which was denied by the
lower court on January 14, 1966 (p. 57, Record on Appeal).
Hence, this appeal by plaintiff from the orders of October 18, 1965 and
January 14, 1966.
Plaintiff-appellant imputes to the lower court the following errors:
'1. The lower court erred in holding that the contract of sale between the
plaintiff-appellant and his father-in-law, Francisco Militante, Sr., now
deceased, of the property covered by Plan Psu-99791, (Exh. "A") was
void, not voidable because it was made when plaintiff-appellant was the
counsel of the latter in the Land Registration case.
'2. The lower court erred in holding that the defendant-appellee is an
interested person to question the validity of the contract of sale between
plaintiff-appellant and the deceased, Francisco Militante, Sr.
'3. The lower court erred in entertaining the motion to dismiss of the
defendant-appellee after he had already filed his answer, and after the
termination of the pre-trial, when the said motion to dismiss raised a
collateral question.
'4. The lower court erred in dismissing the complaint of the plaintiff-
appellant.'
The appellate court concluded that plaintiffs "assignment of errors gives
rise to two (2) legal posers (1) whether or not the contract of sale
between appellant and his father-in-law, the late Francisco Militante over
the property subject of Plan Psu-99791 was void because it was made
when plaintiff was counsel of his father-in-law in a land registration case
involving the property in dispute; and (2) whether or not the lower court
was correct in entertaining defendant-appellee's motion to dismiss after
the latter had already filed his answer and after he (defendant) and
plaintiff-appellant had agreed on some matters in a pre-trial conference.
Hence, its elevation of the appeal to this Court as involving pure
questions of law.
It is at once evident from the foregoing narration that the pre-trial
conference held by the trial court at which the parties with their counsel
agreed and stipulated on the material and relevant facts and submitted
their respective documentary exhibits as referred to in the pre-trial
order, supra, 2 practically amounted to a fulldress trial which placed on
record all the facts and exhibits necessary for adjudication of the case.
The three points on which plaintiff reserved the presentation of evidence
at the-trial dealing with the source of the alleged right and title of
Francisco Militante's predecessors, supra, 3 actually are already made of
record in thestipulated facts and admitted exhibits. The chain of
Militante's alleged title and right to the land as supposedly traced back
to Liberato Demontao was actually asserted by Militante (and his
vendee, lawyer and son-in-law, herein plaintiff) in the land registration
case and rejected by the Iloilo land registration court
which dismissed Militante's application for registration of the land. Such
dismissal, as already stated, was affirmed by the final judgment in 1958
of the Court of Appeals. 4
The four points on which defendant on his part reserved the presentation
of evidence at the trial dealing with his and his ancestors' continuous,
PINEDAPCGRNMAN
open, public and peaceful possession in the concept of owner of the land
and the Director of Lands' approval of his survey plan
thereof, supra, 5 are likewise already duly established facts of record, in
the land registration case as well as in the ejectment case wherein the
Iloilo court of first instance recognized the superiority of defendant's right
to the land as against plaintiff.
No error was therefore committed by the lower court in dismissing
plaintiff's complaint upon defendant's motion after the pre-trial.
1. The stipulated facts and exhibits of record indisputably established
plaintiff's lack of cause of action and justified the outright dismissal of the
complaint. Plaintiff's claim of ownership to the land in question was
predicated on the sale thereof for P2,000.00 made in 1956 by his father-
in- law, Francisco Militante, in his favor, at a time when Militante's
application for registration thereof had already been dismissed by the
Iloilo land registration court and was pending appeal in the Court of
Appeals.
With the Court of Appeals' 1958 final judgment affirming the dismissal of
Militante's application for registration, the lack of any rightful claim or title
of Militante to the land was conclusively and decisively judicially
determined. Hence, there was no right or title to the land that could be
transferred or sold by Militante's purported sale in 1956 in favor of
plaintiff.
Manifestly, then plaintiff's complaint against defendant, to be declared
absolute owner of the land and to be restored to possession thereof with
damages was bereft of any factual or legal basis.
2. No error could be attributed either to the lower court's holding that the
purchase by a lawyer of the property in litigation from his client is
categorically prohibited by Article 1491, paragraph (5) of the Philippine
Civil Code, reproduced supra; 6 and that consequently, plaintiff's
purchase of the property in litigation from his client (assuming that his
client could sell the same since as already shown above, his client's
claim to the property was defeated and rejected) was void and could
produce no legal effect, by virtue of Article 1409, paragraph (7) of our
Civil Code which provides that contracts "expressly prohibited or
declared void by law' are "inexistent and that "(T)hese contracts cannot
be ratified. Neither can the right to set up the defense of illegality be
waived."
The 1911 case of Wolfson vs. Estate of Martinez 7 relied upon by plaintiff
as holding that a sale of property in litigation to the party litigant's lawyer
"is not void but voidable at the election of the vendor" was correctly held
by the lower court to have been superseded by the later 1929 case
of Director of Lands vs. Abagat. 8 In this later case of Abagat, the Court
expressly cited two antecedent cases involving the same transaction of
purchase of property in litigation by the lawyer which was expressly
declared invalid under Article 1459 of the Civil Code of Spain (of which
Article 1491 of our Civil Code of the Philippines is the counterpart) upon
challenge thereof not by the vendor-client but by the adverse parties
against whom the lawyer was to enforce his rights as vendee thus
acquired.
These two antecedent cases thus cited in Abagat clearly superseded
(without so expressly stating the previous ruling in Wolfson:
The spouses, Juan Soriano and Vicente Macaraeg, were the owners of
twelve parcels of land. Vicenta Macaraeg died in November, 1909,
leaving a large number of collateral heirs but no descendants. Litigation
between the surviving husband, Juan Soriano, and the heirs of Vicenta
immediately arose, and the herein appellant Sisenando Palarca acted as
Soriano's lawyer. On May 2, 1918, Soriano executed a deed for the
aforesaid twelve parcels of land in favor of Sisenando Palarca and on
the following day, May 3, 1918, Palarca filed an application for the
registration of the land in the deed. After hearing, the Court of First
Instance declared that the deed was invalid by virtue of the provisions of
article 1459 of the Civil Code, which prohibits lawyers and solicitors from
purchasing property rights involved in any litigation in which they take
part by virtue of their profession. The application for registration was
Page 280
consequently denied, and upon appeal by Palarca to the Supreme Court,
the judgement of the lower court was affirmed by a decision promulgated
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LEGAL ETHICS
November 16,1925. (G.R. No. 24329, Palarca vs. Director of Lands, not
reported.)
In the meantime cadastral case No. 30 of the Province of Tarlac was
instituted, and on August 21, 1923, Eleuteria Macaraeg, as administratrix
of the estate of Vicente Macaraeg, filed claims for the parcels in question.
Buenaventura Lavitoria administrator of the estate of Juan Soriano, did
likewise and so did Sisenando Palarca. In a decision dated June 21,
1927, the Court of First Instance, Judge Carballo presiding, rendered
judgment in favor of Palarea and ordered the registration of the land in
his name. Upon appeal to this court by the administration of the estates
of Juan Soriano and Vicente Macaraeg, the judgment of the court below
was reversed and the land adjudicated to the two estates as conjugal
property of the deceased spouses. (G.R. No. 28226, Director of Lands
vs. Abagat, promulgated May 21, 1928, not reported.) 9
In the very case of Abagat itself, the Court, again affirming the invalidity
and nullity of the lawyer's purchase of the land in litigation from his client,
ordered the issuance of a writ of possession for the return of the land by
the lawyer to the adverse parties without reimbursement of the price paid
by him and other expenses, and ruled that "the appellant Palarca is a
lawyer and is presumed to know the law. He must, therefore, from the
beginning, have been well aware of the defect in his title and is,
consequently, a possessor in bad faith."
As already stated, Wolfson and Abagat were decided with relation to
Article 1459 of the Civil Code of Spain then adopted here, until it was
superseded on August 30, 1950 by the Civil Code of the Philippines
whose counterpart provision is Article 1491.
Article 1491 of our Civil Code (like Article 1459 of the Spanish Civil Code)
prohibits in its six paragraphs certain persons, by reason of the relation
of trust or their peculiar control over the property, from acquiring such
property in their trust or control either directly or indirectly and "even at a
public or judicial auction," as follows: (1) guardians; (2) agents; (3)
administrators; (4) public officers and employees; judicial officers and
employees, prosecuting attorneys, and lawyers; and (6) others
especially disqualified by law.
In Wolfson which involved the sale and assignment of a money judgment
by the client to the lawyer, Wolfson, whose right to so purchase the
judgment was being challenged by the judgment debtor, the Court,
through Justice Moreland, then expressly reserved decision on "whether
or not the judgment in question actually falls within the prohibition of the
article" and held only that the sale's "voidability can not be asserted by
one not a party to the transaction or his representative," citing from
Manresa 10 that "(C)onsidering the question from the point of view of the
civil law, the view taken by the code, we must limit ourselves to
classifying as void all acts done contrary to the express prohibition of the
statute. Now then: As the code does not recognize such nullity by the
mere operation of law, the nullity of the acts hereinbefore referred to must
be asserted by the person having the necessary legal capacity to do so
and decreed by a competent
court." 11
The reason thus given by Manresa in considering such prohibited
acquisitions under Article 1459 of the Spanish Civil Code as merely
voidable at the instance and option of the vendor and not void "that
the Code does not recognize such nullity de pleno derecho" is no
longer true and applicable to our own Philippine Civil Code
which does recognize the absolute nullity of contracts "whose cause,
object, or purpose is contrary to law, morals, good customs, public order
or public policy" or which are "expressly prohibited or declared void by
law" and declares such contracts "inexistent and void from the
beginning." 12
The Supreme Court of Spain and modern authors have likewise veered
from Manresa's view of the Spanish codal provision itself. In
its sentencia of 11 June 1966, the Supreme Court of Spain ruled that the
prohibition of Article 1459 of the Spanish Civil Code is based on public
policy, that violation of the prohibition contract cannot be validated by
confirmation or ratification, holding that:
PINEDAPCGRNMAN
... la prohibicion que el articulo 1459 del C.C. establece respecto a los
administradores y apoderados, la cual tiene conforme a la doctrina de
esta Sala, contendia entre otras, en S. de 27-5-1959, un fundamento
de orden moral lugar la violacion de esta a la nulidad de pleno
derecho del acto o negocio celebrado, ... y prohibicion legal,
afectante orden publico, no cabe con efecto alguno la
aludida retification ... 13
The criterion of nullity of such prohibited contracts under Article 1459 of
the Spanish Civil Code (Article 1491 of our Civil Code) as a matter of
public order and policy as applied by the Supreme Court of Spain to
administrators and agents in its above cited decision should certainly
apply with greater reason to judges, judicial officers, fiscals and lawyers
under paragraph 5 of the codal article.
Citing the same decisions of the Supreme Court of Spain, Gullon
Ballesteros, his "Curso de Derecho Civil, (Contratos Especiales)"
(Madrid, 1968) p. 18, affirms that, with respect to Article 1459, Spanish
Civil Code:.
Que caracter tendra la compra que se realice por estas personas?
Porsupuesto no cabe duda de que el caso (art.) 1459, 40 y 50, la nulidad
esabsoluta porque el motivo de la prohibicion es de orden publico. 14
Perez Gonzales in such view, stating that "Dado el caracter prohibitivo
delprecepto, la consequencia de la infraccion es la nulidad radical y ex
lege." 15
Castan, quoting Manresa's own observation that.
"El fundamento do esta prohibicion es clarisimo. No sa trata con este
precepto tan solo de guitar la ocasion al fraude; persiguese, ademasel
proposito de rodear a las personas que intervienen en la administrcionde
justicia de todos los retigios que necesitan pora ejercer su ministerio
librandolos de toda suspecha, que aunque fuere in fundada, redundura
endescredito de la institucion." 16 arrives at the contrary and now
accepted view that "Puede considerace en nuestro derecho inexistente
'o radicalmente nulo el contrato en los siguentes cases: a) ...; b) cuando
el contrato se ha celebrado en violacion de una prescripcion 'o
prohibicion legal, fundada sobre motivos de orden publico(hipotesis del
art. 4 del codigo) ..." 17
It is noteworthy that Caltan's rationale for his conclusion that fundamental
consideration of public policy render void and inexistent such expressly
prohibited purchase (e.g. by public officers and employees of
government property intrusted to them and by justices, judges, fiscals
and lawyers of property and rights in litigation and submitted to or
handled by them, under Article 1491, paragraphs (4) and (5) of our Civil
Code) has been adopted in a new article of our Civil Code, viz, Article
1409 declaring such prohibited contracts as "inexistent and void from the
beginning." 18
Indeed, the nullity of such prohibited contracts is definite and permanent
and cannot be cured by ratification. The public interest and public policy
remain paramount and do not permit of compromise or ratification. In his
aspect, the permanent disqualification of public and judicial officers and
lawyers grounded on public policy differs from the first three cases of
guardians, agents and administrators (Article 1491, Civil Code), as to
whose transactions it had been opined that they may be "ratified" by
means of and in "the form of a new contact, in which cases its validity
shall be determined only by the circumstances at the time the execution
of such new contract. The causes of nullity which have ceased to exist
cannot impair the validity of the new contract. Thus, the object which was
illegal at the time of the first contract, may have already become lawful
at the time of the ratification or second contract; or the service which was
impossible may have become possible; or the intention which could not
be ascertained may have been clarified by the parties. The ratification or
second contract would then be valid from its execution; however, it does
not retroact to the date of the first contract." 19
As applied to the case at bar, the lower court therefore properly acted
upon defendant-appellant's motion to dismiss on the ground of nullity of
plaintiff's alleged purchase of the land, since its juridical effects and
Page 281
plaintiff's alleged cause of action founded thereon were being asserted
against defendant-appellant. The principles governing the nullity of such
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LEGAL ETHICS
prohibited contracts and judicial declaration of their nullity have been well
restated by Tolentino in his treatise on our Civil Code, as follows:
Parties Affected. Any person may invoke the in existence of the
contract whenever juridical effects founded thereon are asserted against
him. Thus, if there has been a void transfer of property, the transferor
can recover it by the accion reinvindicatoria; and any prossessor may
refuse to deliver it to the transferee, who cannot enforce the contract.
Creditors may attach property of the debtor which has been alienated by
the latter under a void contract; a mortgagee can allege the inexistence
of a prior encumbrance; a debtor can assert the nullity of an assignment
of credit as a defense to an action by the assignee.
Action On Contract. Even when the contract is void or inexistent, an
action is necessary to declare its inexistence, when it has already been
fulfilled. Nobody can take the law into his own hands; hence, the
intervention of the competent court is necessary to declare the absolute
nullity of the contract and to decree the restitution of what has been given
under it. The judgment, however, will retroact to the very day when the
contract was entered into.
If the void contract is still fully executory, no party need bring an action
to declare its nullity; but if any party should bring an action to enforce it,
the other party can simply set up the nullity as a defense.20
ACCORDINGLY, the order of dismissal appealed from is hereby
affirmed, with costs in all instances against plaintiff-appellant. So
ordered.
CANON 17 A lawyer owes fidelity to the cause of his client and he
shall be mindful of the trust and confidence reposed in him.
No fear of judicial disfavor or public popularity should restrain
him from full discharge of his duty.
It is the duty of the lawyer at the time of retainer to disclose to
the client all the circumstances of his relations to th ze parties
and any interest in, or connection with, the controversy which
might influence the client in the selection of counsel.
The lawyer owes loyalty to his client even after the relation of
attorney and client has terminated. It is not good practice to
permit him afterwards to defend in another case other
persons against his former client under the pretext that the
case is distinct from and independent of the former case.
A.C. No. 9532 October 8, 2013
MARIA CRISTINA ZABALJAUREGUI PITCHER, Complainant,
vs.
ATTY. RUSTICO B. GAGATE, Respondent.
DECISION
PERLAS-BERNABE, J.:
For the Court s resolution is an administrative complaint1 filed by Maria
Cristina Zabaljauregui Pitcher (complainant) against Atty. Rustico B.
Gagate (respondent), . charging him for gross ignorance of the law and
unethical practice of law.
The facts
Complainant claimed to be the legal wife of David B. Pitcher (David),2 a
British national who passed away on June 18, 2004.3 Prior to his death,
David was engaged in business in the Philippines and owned, among
others, 40% of the shareholdings in Consulting Edge, Inc.4 (Consulting
Edge), a domestic corporation. In order to settle the affairs of her
deceased husband, complainant engaged the services of respondent.5
On June 22, 2004, complainant and respondent met with Katherine
Moscoso Bantegui Bantegui),6 a major stockholder of Consulting
Edge,7 in order to discuss the settlement of Davids interest in the
company.8 They agreed to another meeting which was, however,
postponed by Bantegui. Suspecting that the latter was merely stalling for
time in order to hide something, respondent insisted that the appointment
proceed as scheduled.9
Eventually, the parties agreed to meet at the company premises on June
28, 2004. However, prior to the scheduled meeting, complainant was
PINEDAPCGRNMAN
prevailed upon by respondent to put a paper seal on the door of the said
premises, assuring her that the same was legal.10
On the scheduled meeting, Bantegui expressed disappointment over the
actions of complainant and respondent, which impelled her to just leave
the matter for the court to settle. She then asked them to leave, locked
the office and refused to give them a duplicate key.11
Subsequently, however, respondent, without the consent of Bantegui,
caused the change in the lock of the Consulting Edge office door,12 which
prevented the employees thereof from entering and carrying on the
operations of the company. This prompted Bantegui to file before the
Office of the City Prosecutor of Makati (Prosecutors Office) a complaint
for grave coercion against complainant and respondent.13 In turn,
respondent advised complainant that criminal and civil cases should be
initiated against Bantegui for the recovery of David's personal
records/business interests in Consulting Edge.14 Thus, on January 17,
2005, the two entered in Memorandum of Agreement,15 whereby
respondent undertook the filing of the cases against Bantegui, for which
complainant paid the amount of P150,000.00 as acceptance fee and
committed herself to pay respondentP1,000.00 for every court hearing.16
On November 18, 2004, the Prosecutors Office issued a
Resolution17 dated October 13, 2004, finding probable cause to charge
complainant and respondent for grave coercion. The corresponding
Information was filed before the Metropolitan Trial Court of Makati City,
Branch 63, docketed as Criminal Case No. 337985 (grave coercion
case), and, as a matter of course, warrants of arrest were issued against
them.18 Due to the foregoing, respondent advised complainant to go into
hiding until he had filed the necessary motions in court. Eventually,
however, respondent abandoned the grave coercion case and stopped
communicating with complainant.19Failing to reach respondent despite
diligent efforts,20 complainant filed the instant administrative case before
the Integrated Bar of the Philippines (IBP) - Commission on Bar
Discipline (CBD), docketed as CBD Case No. 06-1689.
Despite a directive21 from the IBP-CBD, respondent failed to file his
answer to the complaint. The case was set for mandatory conference on
November 24, 2006,22 which was reset twice,23 on January 12, 2007 and
February 2, 2007, due to the absence of respondent. The last notice sent
to respondent, however, was returned unserved for the reason "moved
out."24 In view thereof, Investigating Commissioner Tranquil S. Salvador
III declared the mandatory conference terminated and required the
parties to submit their position papers, supporting documents, and
affidavits.25
The IBPs Report and Recommendation
On March 18, 2009, Investigating Commissioner Pedro A. Magpayo, Jr.
(Commissioner Magpayo) issued a Report and
Recommendation,26 observing that respondent failed to safeguard
complainant's legitimate interest and abandoned her in the grave
coercion case. Commissioner Magpayo pointed out that Bantegui is not
legally obliged to honor complainant as subrogee of David because
complainant has yet to establish her kinship with David and,
consequently, her interest in Consulting Edge.27 Hence, the actions
taken by respondent, such as the placing of paper seal on the door of
the company premises and the changing of its lock, were all uncalled for.
Worse, when faced with the counter legal measures to his actions, he
abandoned his client's cause.28Commissioner Magpayo found that
respondents acts evinced a lack of adequate preparation and mastery
of the applicable laws on his part, in violation of Canon 529 of the Code
of Professional Responsibity (Code), warranting his suspension from the
practice of law for a period of six months.30
The IBP Board of Governors adopted and approved the aforementioned
Report and Recommendation in Resolution No. XX-2011-261 dated
November 19, 2011 (November 19, 2011 Resolution), finding the same
to be fully supported by the evidence on record and the applicable laws
and rules.31
In a Resolution32 dated October 8, 2012, the Court noted the Notice of
Page 282
the IBPs November 19, 2011 Resolution, and referred the case to the
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LEGAL ETHICS
Office of the Bar Confidant (OBC) for evaluation, report and
recommendation.33
The OBC's Report and Recommendation
On February 11, 2013, the OBC submitted a Report and
Recommendation34 dated February 6, 2013, concluding that respondent
grossly neglected his duties to his client and failed to safeguard the
latter's rights and interests in wanton disregard of his duties as a
lawyer.35 It deemed that the six-month suspension from the practice of
law as suggested by the IBP was an insufficient penalty and, in lieu
thereof, recommended that respondent be suspended for three
years.36 Likewise, it ordered respondent to return the P150,000.00 he
received from complainant as acceptance fee.37
The Court's Ruling
After a careful perusal of the records, the Court concurs with and adopts
the findings and conclusions of the OBC.
The Court has repeatedly emphasized that the relationship between a
lawyer and his client is one imbued with utmost trust and confidence. In
this regard, clients are led to expect that lawyers would be ever-mindful
of their cause and accordingly exercise the required degree of diligence
in handling their affairs. For his part, the lawyer is expected to maintain
at all times a high standard of legal proficiency, and to devote his full
attention, skill, and competence to the case, regardless of its importance
and whether he accepts it for a fee or for free.38 To this end, he is
enjoined to employ only fair and honest means to attain lawful
objectives.39 These principles are embodied in Canon 17, Rule 18.03 of
Canon 18, and Rule 19.01 of Canon 19 of the Code which respectively
state:
CANON 17 - A lawyer owes fidelity to the cause of his client and he shall
be mindful of the trust and confidence reposed in him.
CANON 18 A lawyer shall serve his client with competence and
diligence.
xxxx
Rule 18.03 A lawyer shall not neglect a legal matter entrusted to him,
and his negligence in connection therewith shall render him liable.
xxxx
CANON 19 A lawyer shall represent his client with zeal within the
bounds of the law.
Rule 19.01 A lawyer shall employ only fair and honest means to attain
the lawful objectives of his client and shall not present, participate in
presenting or threaten to present unfounded criminal charges to obtain
an improper advantage in any case or proceeding.
xxxx
Keeping with the foregoing rules, the Court finds that respondent failed
to exercise the required diligence in handling complainants cause since
he: first, failed to represent her competently and diligently by acting and
proffering professional advice beyond the proper bounds of law; and,
second, abandoned his clients cause while the grave coercion case
against them was pending.
Anent the first infraction, it bears emphasis that complainant's right over
the properties of her deceased husband, David, has yet to be sufficiently
established. As such, the high-handed action taken by respondent to
enforce complainant's claim of ownership over the latters interest in
Consulting Edge i.e., causing the change of the office door lock which
thereby prevented the free ingress and egress of the employees of the
said company was highly improper. Verily, a person cannot take the
law into his own hands, regardless of the merits of his theory. In the same
light, respondent's act of advising complainant to go into hiding in order
to evade arrest in the criminal case can hardly be maintained as proper
legal advice since the same constitutes transgression of the ordinary
processes of law. By virtue of the foregoing, respondent clearly violated
his duty to his client to use peaceful and lawful methods in seeking
justice,40 in violation of Rule 19.01, Canon 19 of the Code as above-
quoted. To note further, since such courses of action were not only
improper but also erroneous, respondent equally failed to serve his client
with competence and diligence in violation of Canon 18 of the Code. In
the same regard, he also remained unmindful of his clients trust in him
PINEDAPCGRNMAN
in particular, her trust that respondent would only provide her with the
proper legal advice in pursuing her interests thereby violating Canon
17 of the Code.
With respect to the second infraction, records definitively bear out that
respondent completely abandoned complainant during the pendency of
the grave coercion case against them; this notwithstanding petitioners
efforts to reach him as well as his receipt of the P150,000.00 acceptance
fee. It is hornbook principle that a lawyers duty of competence and
diligence includes not merely reviewing the cases entrusted to his care
or giving sound legal advice, but also consists of properly representing
the client before any court or tribunal, attending scheduled hearings or
conferences, preparing and filing the required pleadings, prosecuting the
handled cases with reasonable dispatch, and urging their termination
even without prodding from the client or the court.41 Hence, considering
respondents gross and inexcusable neglect by leaving his client totally
unrepresented in a criminal case, it cannot be doubted that he violated
Canon 17, Rule 18.03 of Canon 18, and Rule 19.01 of Canon 19 of the
Code.
In addition, it must be pointed out that respondent failed to file his answer
to the complaint despite due notice.1wphi1This demonstrates not only
his lack of responsibility but also his lack of interest in clearing his name,
which, as case law directs, is constitutive of an implied admission of the
charges leveled against him.42 In fine, respondent should be held
administratively liable for his infractions as herein discussed. That said,
the Court now proceeds to determine the appropriate penalty to be
imposed against respondent.
Several cases show that lawyers who have been held liable for gross
negligence for infractions similar to those committed by respondent were
suspended from the practice of law for a period of two years. In Jinon v.
Jiz,43 a lawyer who neglected his client's case, misappropriated the
client's funds and disobeyed the IBPs directives to submit his pleadings
and attend the hearings was suspended from the practice of law for two
years. In Small v. Banares,44 the Court meted a similar penalty against a
lawyer who failed to render any legal service even after receiving money
from the complainant; to return the money and documents he received
despite demand; to update his client on the status of her case and
respond to her requests for information; and to file an answer and attend
the mandatory conference before the IBP. Also, in Villanueva v.
Gonzales,45 a lawyer who neglected complainants cause; refused to
immediately account for his clients money and to return the documents
received; failed to update his client on the status of her case and to
respond to her requests for information; and failed to submit his answer
and to attend the mandatory conference before the IBP was suspended
from the practice of law for two years. However, the Court observes that,
in the present case, complainant was subjected to a graver injury as she
was prosecuted for the crime of grave coercion largely due to the
improper and erroneous advice of respondent. Were it not for
respondents imprudent counseling, not to mention his act of abandoning
his client during the proceedings, complainant would not have unduly
suffered the harbors of a criminal prosecution. Thus, considering the
superior degree of the prejudice caused to complainant, the Court finds
it apt to impose against respondent a higher penalty of suspension from
the practice of law for a period of three years as recommended by the
OBC.
In the same light, the Court sustains the OBCs recommendation for the
return of the P150,000.00 acceptance fee received by respondent from
complainant since the same is intrinsically linked to his professional
engagement. While the Court has previously held that disciplinary
proceedings should only revolve around the determination of the
respondent-lawyers administrative and not his civil liability,46 it must be
clarified that this rule remains applicable only to claimed liabilities which
are purely civil in nature for instance, when the claim involves moneys
received by the lawyer from his client in a transaction separate and
distinct and not intrinsically linked to his professional engagement (such
Page 283
as the acceptance fee in this case). Hence, considering further that the
fact of respondents receipt of the P150,000.00 acceptance fee from
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
complainant remains undisputed,47 the Court finds the return of the said
fee, as recommended by the OBC, to be in order.
WHEREFORE respondent Atty. Rustico B. Gagate is found guilty of
violating Canon 17 Rule 18.03 of Canon 18 and Rule 19.01 of Canon 19
of the Code of Professional Responsibility. Accordingly, he is hereby
SUSPENDED from the practice of law for a period of three 3) years,
effective upon the finality of this Decision, with a stem warning that a
repetition of the same or similar acts will be dealt with more severely.
Further, respondent is ORDERED to return to complainant Maria Cristina
Zabaljauregui Pitcher the P150,000.00 acceptance fee he received from
the latter within ninety (90) days from the finality of this Decision. Failure
to comply with the foregoing directive will warrant the imposition of a
more severe penalty.
Let a copy of this Decision be furnished the Office of the Bar Confidant,
the Integrated Bar of the Philippines, and the Office of the Court
Administrator for circulation t
A.M. Case No. 3195. December 18, 1989
MA. LIBERTAD SJ CANTILLER, complainant,
vs.
ATTY. HUMBERTO V. POTENCIANO, respondent.
Eduardo Cabreros, Jr. for complainant.
RESOLUTION
PER CURIAM
Public interest requires that an attorney exert his best efforts and ability
in the prosecution or defense of his client's cause. A lawyer who
performs that duty with diligence and candor not only protects the
interests of his client; he also serves the ends of justice, does honor to
the bar and helps maintain the respect of the community to the legal
profession. This is so because the entrusted privilege to practice law
carries with it the correlative duties not only to the client but also to the
court, to the bar or to the public. That circumstance explains the public
concern for the maintenance of an untarnished standard of conduct by
every attorney towards his client. 1
Subject of this administrative complaint is Humberto V. Potenciano, a
practicing lawyer and a member of the Philippine Bar under Roll No.
21862. He is charged with deceit, fraud, and misrepresentation, and also
with gross misconduct, malpractice and of acts unbecoming of an officer
of the court.
The essential facts are as follows: 2
Complainant herein is the sister of Peregrina Cantiller, defendant in an
action for "ejectment" docketed as Civil Case No. 6046 before the
Metropolitan Trial Court of Manila, Branch 57, San Juan, Metro Manila.
Another action, likewise involving Peregrina but this time as plaintiff, was
then pending before the Regional Trial Court, Branch 168, Pasig, Metro
Manila docketed as Civil Case No. 54117 for "reconveyance with
damages." Both actions involve the apartment unit being rented by
complainant and her sister.
When the two cases were concluded, Peregrina came out the losing
party. Civil Case No. 54117 for reconveyance was ordered dismissed by
the Regional Trial Court on June 8, 1987 while Civil Case No. 6046 for
ejectment was decided by the Metropolitan Trial Court against her.
On October 8, 1987 pursuant to the writ of execution issued in Civil Case
No. 6046 for ejectment, complainant and Peregrina were served a notice
to vacate the rented premises within four (4) days from receipt of notice.
Desperate and at a loss on what to do, they consulted a certain Sheriff
Pagalunan, on the matter. Pagalunan, in turn, introduced them to herein
respondent. After such introduction, the parties "impliedly agreed" that
respondent would handle their case. Forthwith, a petition entitled
"Annulment of Judgment, Annulment of Sale and Damages with prayer
for Preliminary Injunction and/or Status Quo Order, etc." was prepared
by respondent to forestall the execution of the order to vacate in Civil
Case No. 6046.
In the afternoon of October 9,1987, the complainant was made to sign
by respondent what she described as a "[h]astily prepared, poorly
PINEDAPCGRNMAN
conceived, and haphazardly composed 3 petition for annulment of
judgment. Complainant alleges that respondent promised her that the
necessary restraining order would be secured if only because the judge
who would hear the matter was his "katsukaran" (close friend).
Thereupon, the petition was filed with the Regional Trial Court, Branch
153, Pasig, Metro Manila and docketed as Civil Case No. 55118.
Respondent demanded from the complainant one thousand pesos (P
l,000.00) as attorney's fee which the latter paid that same afternoon.
However, when the case was raffled and assigned to Branch 153, the
presiding judge asked respondent to withdraw as counsel in the case on
the ground of their friendship.
On October 11, 1987, respondent went to the house of complainant and
asked her to be ready with two thousand pesos (P 2,000.00) to be given
to another judge who will issue the restraining order in the ejectment
case (Civil Case No. 6046). Complainant and her sister were only able
to raise the amount of one thousand pesos which they immediately gave
to respondent.
Later respondent informed the complainant and her sister that he could
not locate the judge who would issue the restraining order. The parties,
then, instead went to the Max's Restaurant where respondent ordered
some food - including two plastic bags of food allegedly to be given to
the judge who would issue the restraining order. At this juncture,
respondent asked for the remaining balance of the two thousand pesos
(P 2,000.00) which he earlier demanded. Complainant gave her last
money-a ten dollar ($ 10.00) bill.
Sometime after the filing of Civil Case No. 55118, respondent informed
complainant and Peregrina that there was a need to file another case
with the Regional Trial Court to enable them to retain possession of the
apartment. For this purpose, respondent told complainant to prepare the
amount of Ten Thousand Pesos (P 10,000.00) allegedly to be deposited
with the Treasurer's Office of Pasig as purchase price of the apartment
and another one thousand pesos (P 1,000.00) to cover the expenses of
the suit. Respondent stressed to the complainant the need and urgency
of filing the new complaint.
Complainant and Peregrina raised the said amounts through the
kindness of some friends and relatives. On October 26,1987, the money
was handed over to the respondent.
On the same date, a complaint for "Specific Performance, Annulment of
Simulated or Spurious Sale with Damages," later docketed as Civil Case
No. 55210, was filed by respondent with the Regional Trial Court, Branch
165, Pasig, Metro Manila.
At the hearing of the preliminary injunction in Civil Case No. 55118 on
October 30, 1987, respondent, contrary to his promise that he would
secure a restraining order, withdrew his appearance as counsel for
complainant. Complainant was not able to get another lawyer as
replacement. Thus, no restraining order or preliminary injunction was
obtained. As a consequence, the order to vacate in Civil Case No. 6046
was eventually enforced and executed.
Sometime thereafter, it came to complainant's knowledge that there was
really no need to make a deposit of ten thousand pesos (P l0,000.00)
relative to Civil Case No. 55210. After further inquiry, she found out that
in fact there was no such deposit made. Thus, on December 23,1987,
complainant sent a demand letter to respondent asking for the return of
the total amount of eleven thousand pesos (P 11,000.00) which the
former earlier gave to the latter. However, this letter was never answered
and the money was never returned. Hence, complainant lodged this
administrative complaint against herein respondent.
Meanwhile, on December 29,1987, the Regional Trial Court, Branch 153,
dismissed Civil Case No. 55118 for failure to state a cause of action. 4 On
January 20,1988, Civil Case No. 5521 0 was likewise dismissed for being
identical with Civil Case No. 55118. 5
Respondent in his answer contends that the filing of Civil Cases Nos.
55118 and 55210 was done in good faith and that the allegations of
complainant relative to the administrative charge against him are all lies,
Page 284
product of one's imagination and only intended to harrass him. 6
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
This Court agrees that the petitions in Civil Cases Nos. 55118 and 55210
appear to be poorly prepared and written. having represented himself
capable of picking up the cudgels for the apparently lost cause of
complainant respondent should have carefully prepared the pleadings if
only to establish the justness of his representation. The little time
involved is no excuse. Complainant reposed full faith in him. His first duty
was to file the best pleading within his capability. Apparently respondent
was more interested in getting the most out of the complainant who was
in a hopeless situation. He bragged about his closeness to the judge
concerned in one case and talked about the need to "buy" the restraining
order in the other. Worse still he got P 10,000.00 as alleged deposit in
court which he never deposited. Instead he pocketed the same. The
pattern to milk the complainant dry is obvious.
When a lawyer takes a client's cause, he thereby covenants that he will
exert all effort for its prosecution until its final conclusion. The failure to
exercise due diligence or the abandonment of a client's cause makes
such lawyer unworthy of the trust which the client had reposed on him.
The acts of respondent in this case violate the most elementary
principles of professional ethics . 7
The Court finds that respondent failed to exercise due diligence in
protecting his client's interests. Respondent had knowledge beforehand
that he would be asked by the presiding judge in Civil Case No. 55118
to withdraw his appearance as counsel by reason of their friendship.
Despite such prior knowledge, respondent took no steps to find a
replacement nor did he inform complainant of this fact.
Even assuming that respondent had no previous knowledge that he
would be asked to withdraw, the record is quite clear that four (4) days
prior to the hearing of the preliminary injunction in Civil Case No. 55118
respondent already filed a motion therein withdrawing as complainant's
counsel interposing as reason therefor his frequent attacks of pain due
to hemorrhoids. Despite this void, respondent failed to find a
replacement. He did not even ask complainant to hire another lawyer in
his stead. 8
His actuation is definitely inconsistent with his duty to protect with utmost
dedication the interest of his client and of the fidelity, trust and confidence
which he owes his client. 9 More so in this case, where by reason of his
gross negligence complainant thereby suffered by losing all her cases.
The filing of Civil Case No. 55210 on October 26, 1987, the same day
that he had already filed a motion to withdraw as counsel for complainant
in Civil Case No. 55118, reveals his lack of good faith as an advocate.
He also failed to appear for the complainant in said case. It was all a
show to get more money from her. This adversely reflects on his fitness
to practice law. When confronted with this evident irregularity, he lamely
stated that while he did not physically appear for complainant he
nevertheless prepared and drafted the pleadings.
His services were engaged by complainant hoping that the property
subject of the ejectment proceeding would be returned to her. In fact, it
was respondent who persuaded complainant that the filing of these two
cases simultaneously were the means by which this objective can be
achieved. His duty was not only to prepare the pleadings but to represent
complainant until the termination of the cases. This he failed to do.
His representation that there was an immediate need to file Civil Case
No. 55210 when he already knew that he could no longer physically
handle the same is an act of deception of his client. 10 It shows lack of
fidelity to his oath of office as a member of the Philippine bar.
The allegation of respondent that the ten thousand pesos (P 10,000.00)
was given to him as fee for his services, is simply incredible. Indeed,
such amount is grossly disproportionate with the service he actually
rendered. 11 And his failure to return even a portion of the amount upon
demand of complainant all the more bolsters the protestation of
complainant that respondent does not deserve to remain as an officer of
the court.
Lawyers are indispensable part of the whole system of administering
justice in this jurisdiction. At a time when strong and disturbing criticisms
are being hurled at the legal profession, strict compliance with one's oath
of office and the canons of professional ethics is an imperative.
PINEDAPCGRNMAN
Lawyers should be fair, honest, respectable, above suspicion and
beyond reproach in dealing with their clients. The profession is not
synonymous with an ordinary business proposition. It is a matter of public
interest.
WHEREFORE, after considering the entirety of the circumstances
present in this case, this Court finds Atty. Humberto V. Potenciano to be
guilty of the charges against him and hereby SUSPENDS him from the
practice of law for an indefinite period until such time he can demonstrate
that he has rehabilitated himself as to deserve to resume the practice of
law.
Finally, respondent is hereby ordered to return to complainant herein the
sum of eleven thousand pesos (P11,000.00) with legal interest from the
date of this resolution until it is actually returned.
SO ORDERED.
A.M. No. 1311 July 18, 1991
RAMONA L. VDA. DE ALISBO and NORBERTO S.
ALISBO, petitioners,
vs.
ATTY. BENITO JALANDOON, SR., respondent.
GRIO-AQUINO, J.:
A verified complaint for disbarment was filed with then Secretary of
National Defense Juan Ponce Enrile on January 2, 1974, by Ramona L.
Vda. de Alisbo and Norberto S. Alisbo against their former counsel,
Attorney Benito Jalandoon, Sr., charging him with deceit, malpractice,
and professional infidelity. The complaint was referred to this Court on
February 5, 1974.
After the complainants had submitted the required number of copies of
their complaint, the respondent was ordered to file his answer thereto
which he did on June 5, 1974.
On August 20, 1974, the complainants filed a reply.
On August 28, 1974, the Court referred the complaint to the Solicitor
General for investigation, report and recommendation. On February 2,
1990, or after sixteen (16) years, the Solicitor General submitted his
report to the Court, together with the transcripts of stenographic notes
taken at the investigation and folders of exhibits submitted by the parties.
The facts of the case, as found by the Solicitor General, are the following:
On March 16, 1970, Ramon Alisbo engaged respondent Attorney Benito
Jalandoon, Sr., as his counsel to commence an action to recover his
share of the estate of the deceased spouses Catalina Sales and
Restituto Gozuma which had been adjudicated to him under the
judgment dated April 29, 1961 of the Court of First Instance of Negros
Oriental in Civil Case No. 4963, because Alisbo failed to file a motion for
execution of the judgment in his favor within the reglementary five-year
period (Sec. 6, Rule, 39, Rules of Court). The salient provisions of the
Contract for Professional Services (Exhibit A) between Alisbo and
Attorney Jalandoon were the following:
1. That respondent will decide whether or not to file a suit for the recovery
of Ramon Alisbo's share or claim;
2. That respondent will shoulder all expenses of litigation; and
3. As attorney's fees, respondent will be paid fifty per cent (50%) of the
value of the property recovered.
On April 18, 1970, respondent prepared a complaint for revival of the
judgment in Civil Case No. 4963 but filed it only on September 12, 1970
on five (5) months later. It was docketed as Civil Case No. 9559, entitled:
"Ramon S. Alisbo, Teotimo S. Alisbo and Pacifico S. Alisbo vs. Carlito
Sales, in his own capacity and as Judicial Administrator of the deceased
Pedro Sales." The complaint was signed by respondent alone. However,
no sooner had he filed the complaint than he withdrew it and filed in its
stead (on the same day and in the same case) a second complaint dated
August 31, 1970, with Ramon S. Alisbo as the lone plaintiff, praying for
the same relief. Teotimo S. Alisbo and Pacifico S. Alisbo were excluded
as plaintiffs and were impleaded as defendants instead. Attorneys
Page 285
Bernardo B. Pablo and Benito Jalandoon, Sr. (herein respondent) signed
as counsel.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
On December 8, 1971, an amended complaint was filed wherein the
plaintiffs were: Ramon S. Alisbo, assisted by his judicial guardian,
Norberto S. Alisbo, and eight (8) others, namely: Pacifico S. Alisbo,
Ramona Vda. de Alisbo and Ildefonso, Evangeline, Teotimo, Jr.,
Reynaldo, Elizabeth and Teresita, all surnamed Alisbo. The amended
complaint was signed by Attorney Bernardo B. Pablo alone as counsel
of the plaintiffs.
On August 21, 1973, defendant Carlito Sales filed a Motion to Dismiss
the complaint on the ground that the action for revival of judgment in Civil
Case No. 4963 had already prescribed (Exh. 21). Plaintiffs filed an
Opposition to the Motion to Dismiss (Exh. 22).
On October 3, 1973, the Court of First Instance of Negros Occidental
dismissed the complaint on the ground of prescription as the judgment
in Civil Case No. 4963 became final on May 30, 1961 yet, and, although
a complaint for revival of said judgment was filed by Ramon Alisbo on
September 12, 1970, before the ten-year prescriptive period expired, that
complaint was null and void for Ramon Alisbo was insane, hence,
incompetent and without legal capacity to sue when he instituted the
action. The subsequent filing of an Amended Complaint on December 8,
1972, after the statutory limitation period had expired, was too late to
save the plaintiffs right of action. Thereafter, nothing more was done by
any of the parties in the case.
On January 2, 1974, the complainants charged respondent Attorney
Benito Jalandoon, Sr. with having deliberately caused the dismissal of
Civil Case No. 9559 and with having concealed from them the material
fact that he had been the former legal counsel of Carlito Sales, their
adversary in the probate proceedings. The respondent filed a general
denial of the charges against him.
When Ramon S. Alisbo engaged the services of Attorney Jalandoon to
enforce the decision in Civil Case No. 4963, that decision was already
nine (9) years old, hence, it could no longer be executed by mere motion
(Sec. 6, Rule 39, Rules of Court). Complainants had only about a year
left within which to enforce the judgment by an independent action.
Ramon Alisbo was already insane or incompetent when he hired
Attorney Jalandoon to file Civil Case No. 9559 for him. Attorney
Jalandoon concealed from Alisbo the fact that he (Atty. Jalandoon) had
been the former counsel of Carlito Sales in the probate proceedings
where Alisbo and Sales had litigated over their shares of the inheritance.
However, according to Attorney Jalandoon, it was only on October 6,
1972, when Civil Case No. 9559 was called for pre-trial, that he
discovered his previous professional relationship with Sales. At that time,
the ten-year prescriptive period for revival of the judgment in favor of
Alisbo had already expired. He thereupon asked Alisbo's permission to
allow him (Jalandoon) to withdraw from the case. He also informed the
court about his untenable position and requested that he be allowed to
retire therefrom. His request was granted.
In his report to the Court, the Solicitor General made the following
observations:
Evident from the foregoing is the fact that in handling the case for Ramon
S. Alisbo which eventually led to its dismissal, respondent committed
several errors, among which are:
1. He did not verify the real status of Ramon Alisbo before filing the case.
Otherwise, his lack of capacity to sue would not have been at issue.
2. He postponed the motion to revive judgment and gave way instead to
a motion to resolve pending incidents in Civil Case 4963. In doing so, he
frittered away precious time.
3. He dropped Ramon Alisbo's co-plaintiffs and impleaded them as
defendants. Otherwise, the complaint would have been defective only in
part.
Had not respondent committed the above mistakes, Civil Case No. 9559
in all probability would not have been dismissed on the ground of
prescription. (pp. 9-10, Solicitor General's Report.)
While the Solicitor General does not believe that Attorney Jalandoon's
mistakes in handling Alisbo's case were deliberate or made with malice
aforethought because there is no "proof of collusion or conspiracy
between respondent and those who would benefit from the dismissal of
PINEDAPCGRNMAN
Civil Case No. 9559 . . . and that, on the other hand, respondent stood
to gain substantially (50% of the amount recovered) if he had succeeded
in having the judgment revived and executed" (pp. 10-11, Solicitor
General's Report), still those errors are so gross and glaring that they
could not have resulted from mere negligence or lack of due care.
Attorney Jalandoon's pretense that he did not know before the pre-trial
that the Sales defendants had been his clients in the past, is unbelievable
because:
1. Before he filed the complaint for revival of judgment, he had had
several interviews with Ramon S. Alisbo and Norberto Alisbo regarding
Civil Case No. 4963.
2. He must have done some research on the court records of Civil Case
No. 4963, so he could not have overlooked his own participation in that
case as counsel for Carlito Sales, et al.
3. To prepare the complaint for revival of judgment (Civil Case No. 9559),
he had to inform himself about the personal circumstances of the
defendants-Carlito Sales, et al. The fact that they had been his clients
could not have eluded him.
In view of his former association with the Saleses, Attorney Jalandoon,
as a dutiful lawyer, should have declined the employment proffered by
Alisbo on the ground of conflict of interest. Had he done that soon
enough, the Alisbos (herein complainants) would have had enough time
to engage the services of another lawyer and they would not have lost
their case through prescription of the action.
The actuations of respondent attorney violated Paragraphs 1 and 2, No.
6 of the Canons of Professional Ethics which provide:
6. ADVERSE INFLUENCE AND CONFLICTING INTEREST
It is the duty of a lawyer at the time of retainer to disclose to the client all
the circumstances of his relations to the parties, and any interest in or
connection with the controversy, which might influence the client in the
selection of counsel.
It is unprofessional to represent conflicting interests, except by express
consent of all concerned given after a full disclosure of the facts. Within
the meaning of this canon, a lawyer represents conflicting interests
when, in behalf of one client, it is his duty to contend for that which duty
to another client requires him to oppose. (pp. 14-15, Solicitor General's
Report.)
The impression we gather from the facts is that Attorney Jalandoon used
his position as Alisbo's counsel precisely to favor his other client, Carlito
Sales, by delaying Alisbo's action to revive the judgment in his favor and
thereby deprive him of the fruits of his judgment which Attorney
Jalandoon, as Sales' counsel, had vigorously opposed. Thus, although
Atty. Jalandoon prepared Alisbo's complaint for revival of judgment on
April 18, 1970, he delayed its filing until September 12, 1970. He
postponed filing the action by asking the Court instead to resolve pending
incidents in said Civil Case No. 4963. By doing that, he frittered away
what little time was left before the action would prescribe. The original
complaint which he filed in the names of Ramon Alisbo and his brothers
was onlypartially defective because of Ramon's incompetence. By
dropping the other plaintiffs, leaving alone the incompetent Ramon to
prosecute the action, respondent made the second
complaint wholly defective and ineffectual to stop the running of the
prescriptive period.
After filing the complaint, Attorney Jalandoon sat on the case. While he
allegedly found out about Ramon Alisbo's insanity on July 17, 1971 only,
he amended the complaint to implead Alisbo's legal guardian as plaintiff
on December 8, 1971 only, or almost five (5) months later. By that time
the prescriptive period had run out.
The surrounding circumstances leave us with no other conclusion than
that Attorney Jalandoon, betrayed his client Ramon Alisbo's trust and did
not champion his cause with that wholehearted fidelity, care and
devotion that a lawyer is obligated to give to every case that he accepts
from a client. There is more than simple negligence resulting in the
extinguishment and loss of his client's right of action; there is a hint of
Page 286
duplicity and lack of candor in his dealings with his client, which call for
the exercise of this Court's disciplinary power.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
The Honorable Solicitor General who conducted the investigation of this
case found respondent Attorney Benito Jalandoon, Sr. guilty of serious
misconduct and infidelity. Although the Solicitor General recommended
the suspension of respondent Attorney Benito Jalandoon Sr. from the
practice of law for a period of one (1) year, the Court, after due
deliberation, decided to suspend him for a period of two (2) years from
the finality of this decision.
IT IS SO ORDERED.
A.M. No. 2490 February 7, 1991
FULGENCIO A. NGAYAN, TOMASA K. NGAYAN and BELLA
AURORA NGAYAN, complainants,
vs.
ATTY. FAUSTINO F. TUGADE, respondent.
RESOLUTION
PER CURIAM:
This case refers to disciplinary proceedings initiated by the herein
complainants Fulgencio A. Ngayan, Tomasa K. Ngayan and Bella Aurora
Ngayan in a letter-complaint dated November 16, 1982 against
respondent lawyer for violation of sub-paragraphs (e) and (f) of Section
20, Rule 138 of the Rules of Court of the Philippines.
It appears that respondent lawyer was formerly a counsel for
complainants either as defense counsel or private prosecutor in the
following cases:
(a) People v. Fulgencio A. Ngayan, City Court of Manila, Branch Criminal
Case No. 053773-CR for light threat;
(b) People v. Tomasa Ngayan and Bella Aurora Ngayan, City Court of
Manila, Branch VIII, Criminal Case No. 053594-CR, for unjust vexation;
(c) People v. Bella Aurora Ngayan, City Court of Manila, Branch II,
Criminal Case No. 053599-CR, for grave threats;
(d) People v. Roberto Leonido, City Court of Manila, Branch XIV,
Criminal Case No. 053649-CR, for trespass to dwelling; and People v.
Nestor Campo, Branch XIV, Criminal Case No. 053650-CR, for threats;
(e) Fulgencio A. Ngayan and Tomasa K. Ngayan v. Rowena Soriano and
Robert Leonido for grave threats and trespass; Fulgencio A. Ngayan and
Tomasa K. Ngayan v. Rowena Soriano, for grave defamation, Office of
the City Fiscal of Manila before Assistant City Fiscal Elmer K. Calledo,
I.S. No. 82-8564. (pp. 1-2,Rollo)
The factual antecedents of this case are as follows:
Complainants alleged that they asked respondent to prepare an affidavit
to be used as basis for a complaint to be filed against Mrs. Rowena
Soriano and Robert Leonido as a consequence of the latter's
unauthorized entry into complainants' dwelling. Without thoroughly
reading the same, Mrs. Tomasa A. Ngayan allegedly signed it because
she was rushed to do the same. After signing, Mrs. Ngayan noted a
paragraph which did not mention that Robert Leonido was with Rowena
Soriano when both suddenly barged into complainants' residence. Mrs.
Ngayan allegedly told respondent about his omission and in front of her,
respondent crossed out the paragraph she complained about and
promised to make another affidavit. In the meantime, complainants filed
motions to discharge the respondent as their counsel.
Complainants allegedly made a follow up after discharging respondent
and found that the name of Robert Leonido was not included in the
charge. Since the omission was remedied by their new counsel and the
case was subsequently filed in court, the adverse parties filed a motion
for reinvestigation and attached thereto the first affidavit of complainants
which was crossed out. Complainants averred that the motion was filed
by Atty. Apolo P. Gaminda, a former classmate of respondent. They
further said that respondent was also a lawyer of the brother of Robert
Leonido in an insurance company. Complainants further alleged that the
motion for reinvestigation was set for hearing before Assistant City Fiscal
Milagros F. Garcia-Beza where respondent himself executed and
submitted an affidavit as exhibit for Robert Leonido and Rowena Soriano
controverting the affidavit of complainants notwithstanding the fact that
he prepared the latter's affidavit when he was still their counsel.
PINEDAPCGRNMAN
They further alleged that before he executed and submitted his affidavit,
respondent sent a personal letter to Fiscal Beza denouncing
complainants and stating that he is filing criminal and civil cases against
them.
Complainants charged respondent for violation of paragraphs (e) and (f)
of Section 20, Rule 138, Rules of Court, which provide:
(e) To maintain inviolate the confidence, and at every peril to himself, to
preserve the secrets of his client, and to accept no compensation in
connection with his client's business except from him or with his
knowledge and approval;
(f) To abstain from all offensive personality and to advance no fact
prejudicial to the honor or reputation of a party or witnesses, unless
required by the justice of the cause with which he is charged;
Complainants claim that paragraph (e) above was violated by
respondent when the affidavit he prepared for complainants but
subsequently crossed-out was submitted as evidence against
complainants in the motion for reinvestigation. As to paragraph (f),
complainants averred that respondent violated it when he sent a letter to
the fiscal saying that his name was being adversely affected by the false
affidavits of complainants and for that reason, respondent was
contemplating to file a criminal and civil action for damages against them.
In a resolution of the Second Division of this Court dated January 19,
1983, respondent was required to answer the complaint against him but
respondent failed. Thus, on May 25, 1983, for failure of the respondent
to file an answer, this Court resolved to refer this case to the Solicitor
General for investigation, report and recommendation. Thereupon, the
Solicitor General set the complaint for hearing on September 26, 1983,
October 17 and 18,1983 and November 24,1983, all of which dates,
respondent was duly notified. However, respondent never appeared on
any date. Accordingly, the Solicitor General made findings of facts based
on the aforesaid claims of complainants and said:
Consistent with respondent's failure to file an answer to the complaint
herein filed against him, he also did not appear, despite due notice on
the four occasions when the hearing of the present complaint was set at
the Office of the Solicitor General. Neither has respondent shown
concern or interest about the status of the complaint filed against him.
The inaction of respondent to the resolutions of this Honorable Court
requiring him to file his Answer to the Complaint filed against him and his
subsequent failure to attend the hearings on the said complaint indicate
that respondent has not obeyed the legal orders of the duly constituted
authorities and he has not conducted himself as a lawyer according to
the best of his knowledge and discretion with all good fidelity as well to
the courts as to his clients (Sec. 3, Rule 138, Rules of Court). Further,
lawyers are particularly called upon to obey court orders and processes.
They should stand foremost in complying with the court's directives or
instructions being themselves officers of the court (p. 75, Legal Ethics,
Ruben Agpalo, 2nd Ed.). This lack of concern shown by respondent
regarding the matter that involved the very foundation of his right to
engage in the practice of law would show how much less he would regard
the interest of Ms clients.1
He thus recommended that the respondent lawyer be disbarred and his
name dropped from attorney's roll.1wphi1 In this report, he averred that
the conduct of respondent as above-shown constitutes unprofessional
conduct and an outright violation of the provisions of Section 3 and
paragraphs (e) and (f) of Section 20 of Rule 138 of the Rules of Court.
In disbarment proceedings, the burden of proof rests upon the
complainant, and for the court to exercise its disciplinary powers, the
case against the respondent must be established by clear, convincing
and satisfactory proof (Santos v. Dichoso, Adm. Case No. 1825, August
22, 1978, 84 SCRA 622).
In the case at bar, complainants claim that respondent furnished the
adverse parties in a certain criminal case with a copy of their discarded
affidavit, thus enabling them to use it as evidence against complainants.
This actuation constitutes betrayal of trust and confidence of his former
Page 287
clients in violation of paragraph (e), Section 20, Rule 138 of the Rules of
Court. Inasmuch as respondent failed to answer the complaint filed
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LEGAL ETHICS
against him and despite due notice on four occasions, he consistently
did not appear on the scheduled hearing set by the Office of the Solicitor
General, this claim remained uncontroverted. Besides, We tend to
believe the said claim of complainants when it is taken together with their
other claim that respondent's actuations from the beginning tend to show
that he was partial to the adverse parties as he even tried to dissuade
complainants from filing charges against Robert Leonido. This partiality
could be explained by the fact that respondent is the former classmate
of Atty. Apolo P. Gaminda, the adverse parties' counsel and the fact that
respondent is the lawyer of the brother of Robert Leonido in an insurance
company.
Respondent's act of executing and submitting an affidavit as exhibit for
Robert Leonido and Rowena Soriano advancing facts prejudicial to the
case of his former clients such as the fact that the crime charged in
complainants' affidavit had prescribed and that he was asked to prepare
an affidavit to make the offense more grave so as to prevent the offense
from prescribing demonstrates clearly an act of offensive personality
against complainants, violative of the first part of paragraph (f), Section
20, Rule 138, Rules of Court. Likewise, respondent's act of joining the
adverse parties in celebrating their victory over the dismissal of the case
against them shows not only his bias against the complainants but also
constitutes a degrading act on the part of a lawyer. It was meant only to
titillate the anger of complainants.
Additionally, respondent's failure to answer the complaint against him
and his failure to appear at the investigation are evidence of his flouting
resistance to lawful orders of the court and illustrate his despiciency for
his oath of office in violation of Section 3, Rule 138, Rules of Court.
We have fully scrutinized and evaluated the records of this case and We
cannot but find that strong and unassailable reasons exist to render it
Our irremissible duty to impose a disciplinary sanction on respondent.
But We feel that disbarment is too harsh considering the circumstances
of the case. We hold that suspension from the practice of law for a period
of one (1) year should be imposed on respondent for the aforestated
misconduct.
ACCORDINGLY, respondent Faustino F. Tugade is hereby
SUSPENDED from the practice of law for a period of one (1) year,
effective from receipt of this resolution.
Let a copy of this resolution be furnished to the Bar Confidant and the
Integrated Bar of the Philippines and spread on the personal records of
respondent.
SO ORDERED.
[B.M. No. 793. July 30, 2004]
IN RE: SUSPENSION FROM THE PRACTICE OF LAW IN THE
TERRITORY OF GUAM OF ATTY. LEON G. MAQUERA
RESOLUTION
TINGA, J.:
May a member of the Philippine Bar who was disbarred or suspended
from the practice of law in a foreign jurisdiction where he has also been
admitted as an attorney be meted the same sanction as a member of the
Philippine Bar for the same infraction committed in the foreign
jurisdiction? There is a Rule of Court provision covering this cases
central issue. Up to this juncture, its reach and breadth have not
undergone the test of an unsettled case.
In a Letter dated August 20, 1996,[1] the District Court of Guam informed
this Court of the suspension of Atty. Leon G. Maquera (Maquera) from
the practice of law in Guam for two (2) years pursuant to
the Decision rendered by the Superior Court of Guam on May 7, 1996 in
Special Proceedings Case No. SP0075-94,[2] a disciplinary case filed by
the Guam Bar Ethics Committee against Maquera.
The Court referred the matter of Maqueras suspension in Guam to the
Bar Confidant for comment in its Resolution dated November 19,
1996.[3] Under Section 27, Rule 138 of the Revised Rules of Court, the
disbarment or suspension of a member of the Philippine Bar in a foreign
jurisdiction, where he has also been admitted as an attorney, is also a
ground for his disbarment or suspension in this realm, provided the
PINEDAPCGRNMAN
foreign courts action is by reason of an act or omission constituting
deceit, malpractice or other gross misconduct, grossly immoral conduct,
or a violation of the lawyers oath.
In a Memorandum dated February 20, 1997, then Bar Confidant Atty.
Erlinda C. Verzosa recommended that the Court obtain copies of the
record of Maqueras case since the documents transmitted by the Guam
District Court do not contain the factual and legal bases for Maqueras
suspension and are thus insufficient to enable her to determine whether
Maqueras acts or omissions which resulted in his suspension in Guam
are likewise violative of his oath as a member of the Philippine Bar.[4]
Pursuant to this Courts directive in its Resolution dated March 18,
1997,[5] the Bar Confidant sent a letter dated November 13, 1997 to the
District Court of Guam requesting for certified copies of the record of the
disciplinary case against Maquera and of the rules violated by him.[6]
The Court received certified copies of the record of Maqueras case from
the District Court of Guam on December 8, 1997.[7]
Thereafter, Maqueras case was referred by the Court to the Integrated
Bar of the Philippines (IBP) for investigation report and recommendation
within sixty (60) days from the IBPs receipt of the case records.[8]
The IBP sent Maquera a Notice of Hearing requiring him to appear
before the IBPs Commission on Bar Discipline on July 28,
1998.[9] However, the notice was returned unserved because Maquera
had already moved from his last known address in Agana, Guam and did
not leave any forwarding address.[10]
On October 9, 2003, the IBP submitted to the Court its Report and
Recommendation and its Resolution No. XVI-2003-110, indefinitely
suspending Maquera from the practice of law within the Philippines until
and unless he updates and pays his IBP membership dues in full.[11]
The IBP found that Maquera was admitted to the Philippine Bar on
February 28, 1958. On October 18, 1974, he was admitted to the practice
of law in the territory of Guam. He was suspended from the practice of
law in Guam for misconduct, as he acquired his clients property as
payment for his legal services, then sold it and as a consequence
obtained an unreasonably high fee for handling his clients case.[12]
In its Decision, the Superior Court of Guam stated that on August 6,
1987, Edward Benavente, the creditor of a certain Castro, obtained a
judgment against Castro in a civil case.Maquera served as Castros
counsel in said case. Castros property subject of the case, a parcel of
land, was to be sold at a public auction in satisfaction of his obligation to
Benavente.Castro, however, retained the right of redemption over the
property for one year. The right of redemption could be exercised by
paying the amount of the judgment debt within the aforesaid period.[13]
At the auction sale, Benavente purchased Castros property for Five
Hundred U.S. Dollars (US$500.00), the amount which Castro was
adjudged to pay him.[14]
On December 21, 1987, Castro, in consideration of Maqueras legal
services in the civil case involving Benavente, entered into an oral
agreement with Maquera and assigned his right of redemption in favor
of the latter.[15]
On January 8, 1988, Maquera exercised Castros right of redemption by
paying Benavente US$525.00 in satisfaction of the judgment
debt. Thereafter, Maquera had the title to the property transferred in his
name.[16]
On December 31, 1988, Maquera sold the property to C.S. Chang and
C.C. Chang for Three Hundred Twenty Thousand U.S. Dollars
(US$320,000.00).[17]
On January 15, 1994, the Guam Bar Ethics Committee (Committee)
conducted hearings regarding Maqueras alleged misconduct.[18]
Subsequently, the Committee filed a Petition in the Superior Court of
Guam praying that Maquera be sanctioned for violations of Rules
1.5[19] and 1.8(a)[20] of the Model Rules of Professional Conduct (Model
Rules) in force in Guam. In its Petition, the Committee claimed that
Maquera obtained an unreasonably high fee for his services. The
Committee further alleged that Maquera himself admitted his failure to
Page 288
comply with the requirement in Rule 1.8 (a) of the Model Rules that a
lawyer shall not enter into a business transaction with a client or
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
knowingly acquire a pecuniary interest adverse to a client unless the
transaction and the terms governing the lawyers acquisition of such
interest are fair and reasonable to the client, and are fully disclosed to,
and understood by the client and reduced in writing.[21]
The Committee recommended that Maquera be: (1) suspended from the
practice of law in Guam for a period of two [2] years, however, with all
but thirty (30) days of the period of suspension deferred; (2) ordered to
return to Castro the difference between the sale price of the property to
the Changs and the amount due him for legal services rendered to
Castro; (3) required to pay the costs of the disciplinary proceedings; and
(4) publicly reprimanded. It also recommended that other jurisdictions be
informed that Maquera has been subject to disciplinary action by the
Superior Court of Guam.[22]
Maquera did not deny that Castro executed a quitclaim deed to the
property in his favor as compensation for past legal services and that the
transaction, except for the deed itself, was oral and was not made
pursuant to a prior written agreement. However, he contended that the
transaction was made three days following the alleged termination of the
attorney-client relationship between them, and that the property did not
constitute an exorbitant fee for his legal services to Castro.[23]
On May 7, 1996, the Superior Court of Guam rendered
its Decision[24] suspending Maquera from the practice of law in Guam for
a period of two (2) years and ordering him to take the Multi-State
Professional Responsibility Examination (MPRE) within that period. The
court found that the attorney-client relationship between Maquera and
Castro was not yet completely terminated when they entered into the oral
agreement to transfer Castros right of redemption to Maquera on
December 21, 1987. It also held that Maquera profited too much from
the eventual transfer of Castros property to him since he was able to sell
the same to the Changs with more than US$200,000.00 in profit,
whereas his legal fees for services rendered to Castro amounted only to
US$45,000.00. The court also ordered him to take the MPRE upon his
admission during the hearings of his case that he was aware of the
requirements of the Model Rules regarding business transactions
between an attorney and his client in a very general sort of way.[25]
On the basis of the Decision of the Superior Court of Guam, the IBP
concluded that although the said court found Maquera liable for
misconduct, there is no evidence to establish that [Maquera] committed
a breach of ethics in the Philippines.[26] However, the IBP still resolved to
suspend him indefinitely for his failure to pay his annual dues as a
member of the IBP since 1977, which failure is, in turn, a ground for
removal of the name of the delinquent member from the Roll of Attorneys
under Section 10, Rule 139-A of the Revised Rules of Court.[27]
The power of the Court to disbar or suspend a lawyer for acts or
omissions committed in a foreign jurisdiction is found in Section 27, Rule
138 of the Revised Rules of Court, as amended by Supreme
Court Resolution dated February 13, 1992, which states:
Section 27. Disbarment or suspension of attorneys by Supreme Court,
grounds therefor.A member of the bar may be disbarred or suspended
from his office as attorney by the Supreme Court for any deceit,
malpractice, or other gross misconduct in such office, grossly
immoral conduct, or by reason of his conviction of a crime involving moral
turpitude, or for any violation of the oath which he is required to take
before admission to practice, or for a willful disobedience appearing
as attorney for a party to a case without authority to do so. The practice
of soliciting cases at law for the purpose of gain, either personally or
through paid agents or brokers, constitutes malpractice.
The disbarment or suspension of a member of the Philippine Bar
by a competent court or other disciplinatory agency in a foreign
jurisdiction where he has also been admitted as an attorney is a
ground for his disbarment or suspension if the basis of such action
includes any of the acts hereinabove enumerated.
The judgment, resolution or order of the foreign court or
disciplinary agency shall be prima facie evidence of the ground for
disbarment or suspension (Emphasis supplied).
PINEDAPCGRNMAN
The Court must therefore determine whether Maqueras acts, namely:
acquiring by assignment Castros right of redemption over the property
subject of the civil case where Maquera appeared as counsel for him;
exercising the right of redemption; and, subsequently selling the property
for a huge profit, violate Philippine law or the standards of ethical
behavior for members of the Philippine Bar and thus constitute grounds
for his suspension or disbarment in this jurisdiction.
The Superior Court of Guam found that Maquera acquired his clients
property by exercising the right of redemption previously assigned to him
by the client in payment of his legal services. Such transaction falls
squarely under Article 1492 in relation to Article 1491, paragraph 5 of the
Civil Code of the Philippines. Paragraph 5 of Article 1491[28] prohibits the
lawyers acquisition by assignment of the clients property which is the
subject of the litigation handled by the lawyer. Under Article 1492, [29] the
prohibition extends to sales in legal redemption.
The prohibition ordained in paragraph 5 of Article 1491 and Article 1492
is founded on public policy because, by virtue of his office, an attorney
may easily take advantage of the credulity and ignorance of his
client[30] and unduly enrich himself at the expense of his client.
The case of In re: Ruste[31] illustrates the significance of the
aforementioned prohibition. In that case, the attorney acquired his clients
property subject of a case where he was acting as counsel pursuant to
a deed of sale executed by his clients in his favor. He contended that the
sale was made at the instance of his clients because they had no money
to pay him for his services. The Court ruled that the lawyers acquisition
of the property of his clients under the circumstances obtaining therein
rendered him liable for malpractice. The Court held:
Whether the deed of sale in question was executed at the instance of the
spouses driven by financial necessity, as contended by the respondent,
or at the latters behest, as contended by the complainant, is of no
moment. In either case an attorney occupies a vantage position to press
upon or dictate his terms to a harassed client, in breach of the rule so
amply protective of the confidential relations, which must necessarily
exist between attorney and client, and of the rights of both.[32]
The Superior Court of Guam also hinted that Maqueras acquisition of
Castros right of redemption, his subsequent exercise of said right, and
his act of selling the redeemed property for huge profits were tainted with
deceit and bad faith when it concluded that Maquera charged Castro an
exorbitant fee for his legal services. The court held that since the
assignment of the right of redemption to Maquera was in payment for his
legal services, and since the property redeemed by him had a market
value of US$248,220.00 as of December 21, 1987 (the date when the
right of redemption was assigned to him), he is liable for misconduct for
accepting payment for his legal services way beyond his actual fees
which amounted only to US$45,000.00.
Maqueras acts in Guam which resulted in his two (2)-year suspension
from the practice of law in that jurisdiction are also valid grounds for his
suspension from the practice of law in the Philippines. Such acts are
violative of a lawyers sworn duty to act with fidelity toward his
clients. They are also violative of the Code of Professional
Responsibility, specifically, Canon 17 which states that [a] lawyer owes
fidelity to the cause of his client and shall be mindful the trust and
confidence reposed in him; and Rule 1.01 which prohibits lawyers from
engaging in unlawful, dishonest, immoral or deceitful conduct. The
requirement of good moral character is not only a condition precedent to
admission to the Philippine Bar but is also a continuing requirement to
maintain ones goods standing in the legal profession.[33]
It bears stressing that the Guam Superior Courts judgment ordering
Maqueras suspension from the practice of law in Guam does not
automatically result in his suspension or disbarment in the
Philippines. Under Section 27,[34] Rule 138 of the Revised Rules of
Court, the acts which led to his suspension in Guam are mere grounds
for disbarment or suspension in this jurisdiction, at that only if the basis
of the foreign courts action includes any of the grounds for disbarment
Page 289
or suspension in this jurisdiction.[35] Likewise, the judgment of the
Superior Court of Guam only constitutes prima facie evidence of
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Maqueras unethical acts as a lawyer.[36] More fundamentally, due
process demands that he be given the opportunity to defend himself and
to present testimonial and documentary evidence on the matter in an
investigation to be conducted in accordance with Rule 139-B of the
Revised Rules of Court. Said rule mandates that a respondent lawyer
must in all cases be notified of the charges against him. It is only after
reasonable notice and failure on the part of the respondent lawyer to
appear during the scheduled investigation that an investigation may be
conducted ex parte.[37]
The Court notes that Maquera has not yet been able to adduce evidence
on his behalf regarding the charges of unethical behavior in Guam
against him, as it is not certain that he did receive the Notice of
Hearing earlier sent by the IBPs Commission on Bar Discipline. Thus,
there is a need to ascertain Maqueras current and correct address in
Guam in order that another notice, this time specifically informing him of
the charges against him and requiring him to explain why he should not
be suspended or disbarred on those grounds (through this Resolution),
may be sent to him.
Nevertheless, the Court agrees with the IBP that Maquera should be
suspended from the practice of law for non-payment of his IBP
membership dues from 1977 up to the present.[38]Under Section 10, Rule
139-A of the Revised Rules of Court, non-payment of membership dues
for six (6) months shall warrant suspension of membership in the IBP,
and default in such payment for one year shall be ground for removal of
the name of the delinquent member from the Roll of Attorneys.[39]
WHEREFORE, Atty. Leon G. Maquera is required to SHOW CAUSE,
within fifteen (15) days from receipt of this Resolution, why he should not
be suspended or disbarred for his acts which gave rise to the disciplinary
proceedings against him in the Superior Court of Guam and his
subsequent suspension in said jurisdiction.
The Bar Confidant is directed to locate the current and correct address
of Atty. Maquera in Guam and to serve upon him a copy of
this Resolution.
In the meantime, Atty. Maquera is SUSPENDED from the practice of law
for ONE (1) YEAR or until he shall have paid his membership dues,
whichever comes later.
Let a copy of this Resolution be attached to Atty. Maqueras personal
record in the Office of the Bar Confidant and copies be furnished to all
chapters of the Integrated Bar of the Philippines and to all courts in the
land.
SO ORDERED.
CANON 18 A lawyer shall serve his client with competence and
diligence.
[A.C. No. 6297. July 13, 2004]
DOLORES D. PARIAS, complainant, vs. ATTY. OSCAR P.
PAGUINTO, respondent.
DECISION
CARPIO, J.:
The Case
A lawyer has the duty to give adequate attention and time to every case
he accepts. A lawyer impliedly warrants that he possesses the necessary
diligence, learning and skill to handle each case. He should exert his best
judgment and exercise reasonable and ordinary care and diligence in the
pursuit or defense of his clients cause.
The Facts
Sometime in October 2001, complainant Dolores Dryden Parias (Parias)
engaged the services of respondent Atty. Oscar P. Paguinto (Paguinto)
to annul her marriage to Danilo Soriano. They agreed that for the legal
services, Parias would pay Paguinto an acceptance fee of P25,000, the
filing fee of P2,500 and other incidental expenses.
On 2 December 2001, Parias paid Paguinto P10,000 in cash as partial
payment of the acceptance fee. An acknowledgment receipt evidenced
this payment.[1] Parias gave Paguinto a diskette containing a narration of
PINEDAPCGRNMAN
what happened between her and her estranged husband Danilo Soriano.
Parias also furnished Paguinto with a copy of her marriage contract with
Soriano. Before the end of December 2001, Parias gave
Paguinto P2,500 for the filing fee.
Sometime between January and April 2002, Parias inquired from
Paguinto on the progress of her annulment case. Paguinto informed her
that the case was filed with the Regional Trial Court of Manila, Branch
64 (RTC-Manila, Branch 64), before Judge Ricaforte and that the hearing
was scheduled on 25 April 2002. Before the hearing, Parias requested
for a meeting with Paguinto but the secretary informed her that the
hearing was cancelled. The secretary further informed Parias that the
judge reset the succeeding hearings originally scheduled on 29 May
2002 and 26 June 2002 because the judge was sick or out of town.
On the first week of July 2002, Parias went to the trial court to inquire
about her case but the court personnel in RTC-Manila, Branch 64
informed her that there was no such case filed in their court. Parias asked
Paguinto for the case number, date of filing, copy of the petition and the
court where the annulment case was pending. Paguinto told Parias that
the records were at his office and that he was in Malolos, Bulacan
attending to a case. It turned out that there was no annulment case filed
in RTC-Manila, Branch 64. Paguinto promised to return the money that
Parias paid as down payment. However, Paguinto returned the P10,000
only after Parias filed with the Commission on Bar Discipline (CBD) of
the Integrated Bar of the Philippines (IBP) the present complaint for
disbarment.
In the Order dated 14 February 2003,[2] the CBD directed Paguinto to
answer the complaint. Paguinto asked for an extension of 15 days to file
his Answer. The CBD granted the extension in the Order dated 19 March
2003.[3] However, Paguinto failed to file his Answer within the extended
period and thus the CBD declared him in default in the Order dated 15
July 2003.[4] After the hearing, Parias submitted her Position Paper
praying that the CBD declare Paguinto guilty of violation of Rule 16.01
and Rule 18.03 of the Code of Professional Responsibility.
On 10 September 2003, Parias filed an Affidavit of Withdrawal[5] of the
complaint. Parias stated that Paguinto personally explained exhaustively
the reasons why he failed to comply with his obligations and she realized
that the complaint arose due to a misapprehension of facts,
misunderstanding and miscommunication. Parias manifested that she
was withdrawing the complaint, as she was no longer interested in
pursuing the case.
On the same date, Paguinto filed a Manifestation and
Motion[6] explaining that he failed to attend the hearing on 30 July 2003
because he was in Tabuk, Kalinga attending a hearing in a criminal case
for frustrated homicide. He apologized to Parias for his actuations
claiming himself solely to be blamed. He further declared that he failed
to timely prepare and file the petition for annulment because he spends
his time mostly in Gen. Mariano Alvarez, Cavite where he practices law
catering to those clients who have less in life.
Commissioners Report & Recommendation
The IBP designated Atty. Rebecca Villanueva-Maala (Commissioner) as
Commissioner to conduct a formal investigation of the case. The
Commissioner found Paguinto negligent in performing his duties as a
lawyer and as an officer of the court. The Commissioner declared that a
lawyer has the duty to give adequate attention, care and time to his
cases, accepting only as many cases as he can handle. Paguinto failed
to comply with this duty. The Commissioner recommended the
suspension of Paguinto from the practice of law for six months.
The Courts Ruling
We agree with the Commissioner.
Parias gave Paguinto P10,000 cash as partial payment of the
acceptance fee. Parias also gave Paguinto P2,500 for the filing fee.
Paguinto led Parias to believe that he had filed the annulment case.
Paguinto informed Parias that the case was filed with the RTC-Manila,
Branch 64, before Judge Ricaforte. However, Parias later found out that
Page 290
Paguinto never filed the annulment case in court.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Rule 16.01 of the Code of Professional Responsibility (the Code)
provides that a lawyer shall account for all money or property collected
for or from the client. Acceptance of money from a client establishes an
attorney-client relationship and gives rise to the duty of fidelity to the
clients cause.[7] Money entrusted to a lawyer for a specific purpose, such
as for filing fee, but not used for failure to file the case must immediately
be returned to the client on demand.[8] Paguinto returned the money only
after Parias filed this administrative case for disbarment.
Paguinto should know that as a lawyer, he owes fidelity to the cause of
his client. When a lawyer accepts a case, his acceptance is an implied
representation that he possesses the requisite academic learning, skill
and ability to handle the case. The lawyer has the duty to exert his best
judgment in the prosecution or defense of the case entrusted to him and
to exercise reasonable and ordinary care and diligence in the pursuit or
defense of the case.
A lawyer should give adequate attention, care and time to his case. Once
he agrees to handle a case, he should undertake the task with dedication
and care. If he fails in this duty, he is not true to his oath as a lawyer.
Hence, a lawyer must accept only as much cases as he can efficiently
handle, otherwise his clients interests will suffer.[9] It is not enough that a
lawyer possesses the qualification to handle the legal matter. He must
also give adequate attention to his legal work.
The lawyer owes it to his client to exercise his utmost learning and ability
in handling his cases. A license to practice law is a guarantee by the
courts to the public that the licensee possesses sufficient skill,
knowledge and diligence to manage their cases.[10] The legal profession
demands from a lawyer the vigilance and attention expected of a good
father of a family.
In Gamalinda vs. Alcantara,[11] we ruled:
A lawyer owes fidelity to the cause of his client and must be mindful of
the trust and confidence reposed in him. He shall serve his client with
competence and diligence, and his duty of entire devotion to his clients
cause not only requires, but entitles him to employ every honorable
means to secure for the client what is justly due him or to present every
defense provided by law to enable the latters cause to succeed. An
attorneys duty to safeguard the clients interests commences from his
retainer until his effective release from the case or the final disposition of
the whole subject matter of the litigation. During that period, he is
expected to take such reasonable steps and such ordinary care as his
clients interests may require.
And failure to do so violates Canon 18 of the Code.[12]
Rule 18.01 of the Code is clear. A lawyer shall not undertake a legal
service that he is not qualified to render. Rule 18.02 of the Code provides
that a lawyer shall not handle any legal matter without adequate
preparation. He has the duty to prepare for trial with diligence and
deliberate speed. Rule 18.03 of the Code also provides that a lawyer
shall not neglect a legal matter entrusted to him and his negligence shall
render him liable.
One last point. Parias executed an Affidavit of Withdrawal[13] of the
complaint stating that she was withdrawing the administrative complaint
against Paguinto after realizing that said complaint against the
respondent arose due to misapprehension of facts, misunderstanding
and miscommunication. Paguinto, on the other hand, submitted a
Manifestation and Motion apologizing to Parias for his actuations and
admitting that he was solely to be blamed. A compromise or withdrawal
of charges does not terminate an administrative complaint against a
lawyer,[14] especially in this case where the lawyer admitted his
misconduct.
Pariass affidavit of withdrawal of the disbarment case does not
exonerate Paguinto in any way. We reiterate our ruling in Rayos-Ombac
v. Rayos[15] that
[A] proceeding for suspension or disbarment is not in any sense a civil
action where the complainant is a plaintiff and the respondent lawyer is
a defendant. Disciplinary proceedings involve no private interest and
afford no redress for private grievance. They are undertaken solely for
the public welfare. x x x The attorney is called upon to answer to the court
PINEDAPCGRNMAN
for his conduct as an officer of the court. The complainant or the person
who called the attention of the court to the attorneys alleged misconduct
is in no sense a party, and has generally no interest in the outcome
except as all good citizens may have in the proper administration of
justice.
WHEREFORE, we find respondent Atty. Oscar P. Paguinto GUILTY of
violation of the Code of Professional Responsibility. Accordingly, we
penalize Atty. Oscar P. Paguinto with SUSPENSION for SIX (6)
MONTHS from the practice of law effective upon receipt of this Decision.
Let copies of this Decision be furnished the Office of the Bar Confidant,
to be appended to respondents personal record as an attorney; the
Integrated Bar of the Philippines; and all courts in the country for their
information and guidance.
SO ORDERED.
Rule 18.01 A lawyer shall not undertake a legal service which he
knows or should know that he is not qualified to render. However,
he may render such service if, with the consent of his client, he can
obtain as collaborating counsel a lawyer who is competent on the
matter.
[A.C. No. 5817. May 27, 2004]
EMMA V. DE JUAN, complainant, vs. ATTY. OSCAR R. BARIA
III, respondent.
RESOLUTION
QUISUMBING, J.:
In her Salaysay filed with the Office of the Bar Confidant on August 29,
2002, complainant, former client of respondent, charged respondent with
negligence in handling her labor case and threats against her person.
The complainant alleged that respondent Atty. Oscar R. Baria III, as her
counsel in NLRC NCR CA No. 022654-00/NLRC RAB IV-7-11287-99-
R, Emma De Juan v. Triple AAA Antique/Mr. Yappe and Mr. Godofredo
Nadia, negligently failed to file motion for reconsideration of the decision
dated September 24, 2001 of the NLRC in her behalf.[1]
The complainant avers that she was hired by Triple AAA on or
about December 15, 1998 as packer on probation status for six months
in its Packing Department.[2] Based on a performance evaluation citing
her irregular attendance and inefficiency, the company terminated her
services on June 11, 1999,[3] after waiting for two weeks for her to report.
She claims that she was terminated without notice nor explanation[4] so
she filed a complaint before the National Labor Relations Commission
(NLRC) against the company for illegal dismissal, non-payment of
premium pay for holiday, rest day, and 13th month pay. She also claimed
moral and exemplary damages and attorneys fees.[5]
In search of a lawyer, she asked the assistance of Banahaw
Broadcasting Corporation (BBC) which assigned respondent to handle
her labor case. Respondent represented complainant on a contingency
fee agreement.
On December 29, 1999, the Labor Arbiter rendered a decision in favor
of complainant.[6] Triple AAA appealed to the NLRC. In a decision
promulgated on September 24, 2001, the NLRC reversed the Labor
Arbiter and declared there was no illegal dismissal.[7]
Complainant blamed respondent for the reversal. She said that she
came to know of the reversal of the Labor Arbiters decision when she
called respondent in October 2001. When she asked the respondent
what they should do, respondent answered, Paano iyan ihaehhindi ako
marunong gumawa ng Motion for Reconsideration. Sometime in
November 2001, her husband called respondent to ask if he did anything
in connection with the NLRCs Decision and he was advised by
respondents secretary that, Sabi ni Attyhuwag na kayong magpakita sa
kanya dahil galit na galit sa inyo si Attorney at baka kung ano pa ang
magawa niya sa inyo.[8]
The Court required respondent to comment and referred the case to the
Integrated Bar of the Philippines (IBP) for investigation, report and
Page 291
recommendation.[9]
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
In his Comment, respondent explained that soon after passing the bar in
1999, he was employed as a broadcaster in DWANs radio program
offering free legal services to the poor. He gave free legal services to
indigent clients one of whom was complainant. As a practice, he said he
forewarned his clients that he was just a new lawyer and that they should
not expect too much from him because of his limited legal experience.
According to respondent he tried to explain to complainant the legal
remedies available to her as well as the time her case may take.It
appeared to him that complainant did not fully grasp the usual delays
that may be involved in her case. He recalled that when he told
complainant that the Labor Arbiters decision was in her favor, she was
so jubilant at the money judgment. Later however, the complainant
became furious when he told her that Triple AAA Antique had
appealed. Respondent filed a Motion for Writ of Execution of the Labor
Arbiters Decision but this Motion was ruled premature. Respondent then
filed an opposition to the appeal filed by Triple AAA but the NLRC still
gave due course to the appeal. While Triple AAAs appeal was pending
resolution he told complainant to call him every week so that she could
be advised of any developments in her case. He generously suggested
that complainant call collect to lessen her expenses. He even allowed
complainant and her husband to stay in his home when they came
to Manila from the province.He said he even fed them when they were
in Manila.
In October 2001, the NLRC rendered its decision reversing the Labor
Arbiter. By this time, according to respondent, he confronted
complainant for lying to him about her employment with Triple AAA and
told her that because of her lies there was a possibility she could lose
the appeal. He advised complainant to get a more experienced lawyer
for her appeal because as a new lawyer he was not confident he could
handle her appeal. Thereafter, complainant no longer contacted him and
at some time, he even had to ask her whereabouts from her relatives.
On December 2001, respondent received calls from the staff of Raffy
Tulfo, a radio commentator. In one of these calls, his wife talked to one
of Tulfos employees and she was told that complainant told Tulfo that
the respondent received money from Triple AAA Antique. As a result
Tulfo lambasted him on his radio program. Respondent thereafter called
Tulfo, explained his side, and demanded that the latter apologize on air
otherwise he would file a libel case against Tulfo.
Sometime in January 2002, respondents secretary received a call from
the complainants husband. When respondents secretary confronted the
husband regarding the Tulfo incident, complainants husband
retorted, Sabihin mo sa kanya mag ingat siya at baka may mangyari sa
kanya. Shortly thereafter, respondent began receiving death threats over
the phone and also noticed armed men casing his office. He reported
these calls and presence of suspicious armed men to the police.
Respondent surmises that complainant believed Triple AAA paid him off
and he pocketed money supposedly for her. Respondent vehemently
denied he did. He asks that Triple AAA be summoned to bear witness to
his story. Respondent asserts that he has not committed any breach of
his oath and that he has vigorously pursued his clients cause to the
end. He avers that it was his clients own negligence and folly that caused
her to lose her case. He asks that the complaint be dismissed.
In a Resolution dated March 15, 2003, this Court referred the case to the
IBP for investigation, report and recommendation. In turn, the IBP
Commission on Bar Discipline required complainant to reply. In her reply
written in Filipino, complainant denied that she accepted money from
respondent during the pendency of her labor case, except on one
occasion when she borrowed P100 from respondents secretary for travel
fare back to the province. She reiterated that she filed
her Salaysay because of respondents failure to file a motion for
reconsideration.She further insists that she does not believe that
respondent did not know how to file a motion for reconsideration as he
claims since she was aware that even a law student would know how to.
In its Resolution dated August 30, 2003, the IBP approved the
recommendation of the Commission on Bar Discipline. The IBP Board of
Governors found respondent guilty of negligence in handling the
PINEDAPCGRNMAN
aforecited labor case and recommended that respondent be suspended
from practicing law for three months. The charge of grave threats was
dismissed for complainants failure to substantiate the same.[10]
The core issue is whether the respondent committed culpable
negligence, as would warrant disciplinary action, in failing to file for the
complainant a motion for reconsideration from the decision of the NLRC.
No lawyer is obliged to advocate for every person who may wish to
become his client, but once he agrees to take up the cause of a client,
the lawyer owes fidelity to such cause and must be mindful of the trust
and confidence reposed in him.[11] Further, among the fundamental rules
of ethics is the principle that an attorney who undertakes an action
impliedly stipulates to carry it to its termination, that is, until the case
becomes final and executory. A lawyer is not at liberty to abandon his
client and withdraw his services without reasonable cause and only upon
notice appropriate in the circumstances.[12] Any dereliction of duty by a
counsel, affects the client.[13] This means that his client is entitled to the
benefit of any and every remedy and defense that is authorized by the
law and he may expect his lawyer to assert every such remedy or
defense.[14]
The records reveal that indeed the respondent did not file a motion for
reconsideration of the NLRC such that the said decision eventually had
become final and executory. Respondent does not refute this. His
excuse that he did not know how to file a motion for reconsideration is
lame and unacceptable. After complainant had expressed an interest to
file a motion for reconsideration, it was incumbent upon counsel to
diligently return to his books and re-familiarize himself with the
procedural rules for a motion for reconsideration. Filing a motion for
reconsideration is not a complicated legal task.
We are however, not unaware that respondent had been forthright and
candid with his client when he warned her of his lack of experience as a
new lawyer. We are also not unaware that he had advised complainant
to get a new lawyer. However, his candor cannot absolve him. As already
stressed by this Court:
A lawyer is expected to be familiar with these rudiments of law and
procedure and anyone who acquires his service is entitled to not just
competent service but also whole-hearted devotion to his clients cause.It
is the duty of a lawyer to serve his client with competence and diligence
and he should exert his best efforts to protect within the bounds of law
the interest of his client. A lawyer should never neglect a legal matter
entrusted to him, otherwise his negligence in fulfilling his duty will render
him liable for disciplinary action.[15]
Again, the Court held in the case of Santos v. Lazaro,[16] that Rule 18.03
of the Code of Professional Responsibility[17] explicitly provides that
negligence of lawyers in connection with legal matters entrusted to them
for handling shall render them liable.
Without a proper revocation of his authority and withdrawal as counsel,
respondent remains counsel of record and whether or not he has a valid
cause to withdraw from the case, he cannot just do so and leave his
client out in the cold. An attorney may only retire from the case either by
a written consent of his client or by permission of the court after due
notice and hearing, in which event the attorney should see to it that the
name of the new attorney is recorded in the case.[18] Respondent did not
comply with these obligations.
WHEREFORE, respondent lawyer Oscar R. Baria III is hereby FINED in
the amount of P5,000.00, with a stern warning that a repetition of this or
similar offense will be dealt with more severely.
SO ORDERED.
ROLLON vs NARAVAL (SUPRA)
Rule 18.02 A lawyer shall not handle any legal matter without
adequate preparation.
(Rules of Court)
Page 292
Preparation of Pleadings, Interviewing the Witnesses, What to do in
Case of Conflict of Trial Dates. Adoption of System to Insure
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Receipt of Mails, Notice of Change of Address, Notice of Death of
Client
[A.C. No. 5394. December 2, 2002*]
RIZALINO FERNANDEZ, complainant, vs. ATTY. REYNALDO
NOVERO, JR. respondent.
DECISION
MENDOZA, J.:
This is a complaint for disbarment against Atty. Reynaldo Novero, Jr. for
alleged patent and gross neglect in the handling of Civil Case No. 7500
which complainant Rizalino Fernandez and others had filed against the
Bacolod City Water District before the Regional Trial Court, Branch 49,
Bacolod City.
In his letter,[1] dated October 16, 1996, to the Court Administrator,
complainant imputed the following negligent acts to respondent which
led to the dismissal of Civil Case No. 7500:
1. Respondent did not attend the scheduled hearing on January 11, 1996
nor seek a postponement thereof, for which reason the trial court
considered respondent to have waived further presentation of his
evidence and directed him to formally offer his exhibits for admission on
January 30, 1996;
2. Notwithstanding receipt of the order dated January 11, 1996,
respondent failed to formally offer his exhibits on January 30, 1996,
prompting the trial court to order the dismissal of the case;
3. While respondent filed a motion for reconsideration of the order of
dismissal, he did not file his motion within the reglementary period, as a
result of which the said motion, actually filed on May 7, 1996, was denied
by the trial court on May 14, 1996 for having been filed out of time;
4. When asked for an explanation regarding the dismissal of the case,
respondent informed complainant through a letter, dated July 30, 1996,
that he had filed a motion for reconsideration of the order of dismissal,
but the motion, which had been filed a long time ago, had not yet been
resolved by the trial court;
5. Respondent tried to shift the blame on complainant by claiming that
the latter insisted on presenting his sister from Manila as their last
witness. The truth was that complainants sister had already testified and
there was no more witness to present; and
6. Respondent only attended one (1) hearing in the civil case.
In his answer,[2] dated September 3, 1997, respondent averred that the
complaint filed against him was baseless and was purely malicious and
speculative considering the fact that it was not made under oath. He
alleged that complainant engaged his legal services after the first
counsel had withdrawn from the case because of a misunderstanding
with complainant. He stated that he had no knowledge of what had
happened in the case before he handled it because complainant did not
furnish him the records and stenographic notes of the previous
proceedings despite his repeated requests. Respondent further claimed
that he failed to formally offer the exhibits as evidence because
complainant could not be reached when he was needed for conference
and the latter even tried to take over the handling of the case by insisting
on presenting more witnesses who nevertheless failed to appear during
trial despite several postponements.
The case was referred to the Office of the Bar Confidant (OBC), which
submitted a report,[3] dated February 3, 2001, finding respondent guilty
of violation of the Code of Professional Responsibility and
recommending his suspension from the practice of law for one (1) month.
Thereafter, the Court referred the case to the Integrated Bar of the
Philippines (IBP), which in its report and recommendation, dated October
15, 2001, found respondent remiss in observing the standard care,
diligence and competence prescribed for members of the bar in the
performance of their professional duties. The IBP Investigating
Commissioner recommended that respondent be suspended from the
practice of law for a period of six (6) months with warning that the
commission of the same or similar offenses will be dealt with more
severely in the future.[4] The report and recommendation of the
PINEDAPCGRNMAN
Investigating Commissioner was approved on June 29, 2002 by the IBP
Board of Governors.[5]
Respondent filed a motion for reconsideration, dated September 17,
2002, alleging that the Court should not have taken cognizance of the
complaint because it was not verified.According to him, the complaint
was a mere political ploy to discredit him because he was aspiring for a
congressional seat in the 1998 elections. He denied complainants claim
that he attended only one hearing. He explained that he was not able to
terminate his presentation of evidence because complainant insisted on
presenting as witness his sister who was residing in Manila, even though
the latter repeatedly failed to appear in court despite several
postponements. He claimed that complainant had told him that his
intention was really to delay the case as he was using the same as his
leverage in a criminal case filed or to be filed against him by the Bacolod
City Water District for his alleged water tapping. When he refused to go
along with the scheme, complainant allegedly threatened to change
counsel. Respondent further alleged that complainants attitude is
apparent from the fact that the latter caused to be disseminated several
copies of the IBP Resolution recommending his (respondents)
suspension and distributed them to radio stations in Bacolod City. For
these reasons, respondent sought the reversal of the IBP Resolution.[6]
After review of the records of this case, the Court finds the report of the
Investigating Commissioner of the IBP to be well taken. The records
clearly show that respondent has been negligent in the performance of
his duties as complainants counsel. His failure to file his formal offer of
exhibits constitutes inexcusable negligence as it proved fatal to the
cause of his client since it led to the dismissal of the case. To compound
his inefficiency, respondent filed a motion for reconsideration outside the
reglementary period, which was thus accordingly denied by the trial court
for being filed out of time. Hence, the order issued by the trial court
dismissing the case became final. Respondents acts and omission
clearly constitute violation of the Code of Professional Responsibility
which provides in pertinent parts:
CANON 17. A LAWYER OWES FIDELITY TO THE CAUSE OF HIS
CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND
CONFIDENCE REPOSED IN HIM.
CANON 18. A LAWYER SHALL SERVE HIS CLIENT WITH
COMPETENCE AND DILIGENCE.
Rule 18.02 A lawyer shall not handle any legal matter without adequate
preparation.
Rule 18.03 A lawyer shall not neglect a legal matter entrusted to him,
and his negligence in connection therewith shall render him liable.
As this Court has held:
A counsel must constantly keep in mind that his actions or omissions,
even malfeasance or nonfeasance, would be binding on his client. Verily,
a lawyer owes to the client the exercise of utmost prudence and
capability in that representation. Lawyers are expected to be acquainted
with the rudiments of law and legal procedure, and anyone who deals
with them has the right to expect not just a good amount of professional
learning and competence but also a whole-hearted fealty to the clients
cause.[7]
Respondents attempt to evade responsibility by shifting the blame on
complainant is apparent. His averment that complainant failed to turn
over to him the records and stenographic notes of the case only
highlights his incompetence and inadequacy in handling complainants
case. Considering that respondent has been practicing law for almost 15
years, he should have known that he could easily obtain a copy of the
records and stenographic notes from the court where the case was
docketed.
Respondent likewise refers to the alleged obnoxious attitude of
complainant in trying to manipulate the manner in which he was handling
the case as the main reason for his failure to formally offer his exhibits in
contravention of the order of the court. But respondent should bear in
mind that while a lawyer owes utmost zeal and devotion to the interest
Page 293
of his client, he also has the responsibility of employing only fair and
honest means to attain the lawful objectives of his client and he should
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
not allow the latter to dictate the procedure in handling the case.[8] As
this Court said in another case:
A lawyer owes entire devotion in protecting the interest of his client,
warmth and zeal in the defense of his rights. He must use all his learning
and ability to the end that nothing can be taken or withheld from his client
except in accordance with the law. He must present every remedy or
defense within the authority of the law in support of his clients cause,
regardless of his own personal views. In the full discharge of his duties
to his client, the lawyer should not be afraid of the possibility that he may
displease the judge or the general public.[9]
As to the contention of respondent that the Court should not have taken
cognizance of the complaint because the letter-complaint was not
verified, as required in Rule 139-B, 1 of the Rules of Court on Disbarment
and Discipline of Attorneys,[10] suffice it to say that such constitutes only
a formal defect and does not affect the jurisdiction of the Court over the
subject matter of the complaint. The verification is merely a formal
requirement intended to secure an assurance that matters which are
alleged are true and correct the court may simply order the correction of
unverified pleadings or act on it and waive strict compliance with the rules
in order that the ends of justice may be served.[11]
However, instead of suspension for six (6) months as recommended by
the IBP Investigating Commissioner, we hold that the suspension of
respondent Atty. Reynaldo Novero, Jr. for one (1) month, as
recommended by the Office of the Bar Confidant, would be
commensurate considering that this is the first time Atty. Novero is found
guilty of neglect of his clients case.
WHEREFORE, in view of the foregoing, Atty. Reynaldo Novero, Jr. is
SUSPENDED from the practice of law for one (1) month effective upon
finality hereof with WARNING that a repetition of the same negligent act
charged in this complaint will be dealt with even more severely.
SO ORDERED.
Rule 18.03 A lawyer shall not neglect a legal matter entrusted to
him and his negligence in connection therewith shall render him
liable.
[A.C. No. 5092. August 11, 2004]
LUCILA S. BARBUCO, complainant, vs. ATTY. RAYMUNDO N.
BELTRAN, respondent.
DECISION
YNARES-SANTIAGO, J.:
A lawyer shall serve his client with competence and diligence.[1] While a
lawyer may decline to render services for a person for valid reasons,
once he agrees to take up the cause of a client, he begins to owe fidelity
to that cause and must always be mindful of the trust and confidence
reposed in him. He must serve his client with competence and diligence,
and champion the latters cause with wholehearted fidelity, care and
devotion.[2]
On July 9, 1999, Lucila S. Barbuco filed a Sworn Complaint[3] against
Atty. Raymundo N. Beltran for malpractice of law, negligence and
dishonesty.
It appears that on March 31, 1998, complainant, through her son, Benito
B. Sy, engaged the services of respondent for the purpose of filing an
appeal before the Court of Appeals from the decision of the Regional
Trial Court of Cavite, Branch 21, in the case entitled, Alexander Bermido,
Plaintiff versus Lucila Barbuco, Defendant. On August 6, 1998,
complainant, through Benito B. Sy, gave respondent the total sum of
P3,500.00 for payment of the docket fees.
Complainants appeal, docketed as CA-G.R. CV No. 58180, was
dismissed by the Court of Appeals in a Resolution[4] dated September
25, 1998 for failure to file Appellants Brief,pursuant to Rule 50, Section
1(e) of the 1997 Rules of Civil Procedure.
Complainant found out that her appeal had been dismissed only on June
4, 1999, when her son went to the Court of Appeals to verify the status
of the case.
PINEDAPCGRNMAN
When asked to comment on the charges filed against him,[5] respondent
Beltran averred that the docket fees were paid on time and that
on September 22, 1998, he filed the Appellants Brief[6] with the Court of
Appeals. However, the appeal was dismissed. On October 19, 1998,
respondent filed a motion for reconsideration,[7] on the ground that he
received the notice to file brief on June 25, 1998; however, on June 26,
1998, he met a vehicular accident which physically incapacitated him for
several days; and that as a result of the accident, he suffered head
injuries which caused him to lose track of deadlines for the filing of
pleadings.
On March 9, 1999, the Motion for Reconsideration was denied on the
ground that the brief for defendant-appellant was filed forty-three (43)
days late.[8]
On November 22, 1999, the complaint against respondent Beltran was
referred to the Integrated Bar of the Philippines for investigation, report
and recommendation.[9]
After hearing, Commissioner Rebecca Villanueva-Maala of the IBP
Commission on Bar Discipline, submitted on October 6, 2003 her
findings and recommendation that respondent Beltran be suspended
from the practice of law for a period of five (5) years.
On October 25, 2003, the IBP Board of Governors passed Resolution
No. XVI-2003-234 affirming the recommendation of Commissioner
Villanueva-Maala but modified the recommended period of suspension
from five (5) years to six (6) months only.
After a careful review of the records and evidence, we find no cogent
reason to deviate from the findings and the recommendation of the IBP
Board of Governors. Respondents conduct relative to the belated filing
of the Appellants Brief falls below the standards exacted upon lawyers
on dedication and commitment to their clients cause.
Rule 18.03 of the Code of Professional Responsibility for Lawyers states:
A lawyer shall not neglect a legal matter entrusted to him, and his
negligence in connection therewith shall render him liable.
An attorney is bound to protect his clients interest to the best of his ability
and with utmost diligence. Failure to file brief within the reglementary
period certainly constitutes inexcusable negligence, more so if the delay
of FORTY THREE (43) days resulted in the dismissal of the appeal.
The fact that respondent was involved in a vehicular accident and
suffered physical injuries as a result thereof cannot serve to excuse him
from filing his pleadings on time considering that he was a member of a
law firm composed of not just one lawyer. This is shown by the receipt
he issued to complainant and the pleadings which he signed for and on
behalf of the Beltran, Beltran and Beltran Law Office. As such,
respondent could have asked any of his partners in the law office to file
the Appellants Brief for him or, at least, to file a Motion for Extension of
Time to file the said pleading.
In B.R. Sebastian Enterprises, Inc. v. Court of Appeals,[10] we ruled that
the confusion in the office of the law firm following the death of one of its
partners is not a valid justification for failing to file the brief. We further
ruled in the said case that upon receipt of the notice to file the brief, the
law firm should have re-assigned the case to another associate.
The failure to timely file a pleading is by itself inexcusable negligence on
the part of respondent. Complainants liability is further compounded by
his failure to maintain an open line of communication with his client, in
violation of the provisions of Rule 18.04, which reads:
A lawyer shall keep the client informed of the status of his case and shall
respond within a reasonable time to the clients request for information.
Clearly, respondents series of inadvertence prejudiced the case of the
complainant. We can not overstress the duty of a lawyer to uphold the
integrity and dignity of the legal profession by faithfully performing his
duties to society, to the bar, to the courts and to his clients.[11]
Every member of the Bar should always bear in mind that every case
that a lawyer accepts deserves his full attention, diligence, skill and
competence, regardless of its importance and whether he accepts it for
a fee or for free. A lawyers fidelity to the cause of his client requires him
Page 294
to be ever mindful of the responsibilities that should be expected of him.
He is mandated to exert his best efforts to protect the interest of his client
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
within the bounds of the law. The Code of Professional Responsibility
dictates that a lawyer shall serve his client with competence and
diligence and he should not neglect a legal matter entrusted to him.[12]
WHEREFORE, Atty. Raymundo N. Beltran is found guilty of negligence
and malpractice and is SUSPENDED from the practice of law for a period
of SIX (6) MONTHS effective immediately.
Let a copy of this Decision be furnished the Office of the Bar Confidant,
the Integrated Bar of the Philippines, and to all the courts.
SO ORDERED.
[A.C. No. 3967. September 3, 2003]
ARTEMIO ENDAYA, complainant, vs. ATTY. WILFREDO
OCA, respondent.
DECISION
TINGA, J.:
The law is no brooding omnipresence in the sky, so spoke Justice
Holmes. He must have made the statement because invariably the legal
system is encountered in human form, notably through the lawyers. For
practical purposes, the lawyers not only represent the law; they are the
law.[1] With their ubiquitous presence in the social milieu, lawyers have
to be responsible. The problems they create in lawyering become public
difficulties. To keep lawyers responsible underlies the worth of the ethics
of lawyering. Indeed, legal ethics is simply the aesthetic term for
professional responsibility.
The case before us demonstrates once again that when a lawyer violates
his duties to his client, the courts, the legal profession and the public, he
engages in conduct which is both unethical and unprofessional.
This case unfolded with a verified Complaint[2] filed on January 12, 1993
by complainant Artemio Endaya against respondent Atty. Wifredo Oca
for violation of the lawyers oath and what complainant termed as
professional delinquency or infidelity.[3] The antecedents are:
On November 7, 1991, a complaint for unlawful detainer docketed as
Civil Case No. 34-MCTC-T was filed with the Municipal Circuit Trial Court
of Taysan-Lobo, Batangas by Apolonia H. Hornilla, Pedro Hernandez,
Santiago Hernandez and Dominador Hernandez against complainant
and his spouse Patrosenia Endaya.[4]
On December 13, 1991, the complainant and his wife as defendants in
the case filed their answer which was prepared by a certain Mr. Isaias
Ramirez. A preliminary conference was conducted on January 17, 1992,
which complainant and his wife attended without counsel. During the
conference, complainant categorically admitted that plaintiffs were the
declared owners for taxation purposes of the land involved in the case.
Continuation of the preliminary conference was set on January 31, 1992.
Thereafter, complainant sought the services of the Public Attorneys
Office in Batangas City and respondent was assigned to handle the case
for the complainant and his wife.[5]
At the continuation of the preliminary conference, respondent appeared
as counsel for complainant and his spouse. He moved for the
amendment of the answer previously filed by complainant and his wife,
but his motion was denied.[6] Thereafter, the court, presided by Acting
Trial Court Judge Teodoro M. Baral, ordered the parties to submit their
affidavits and position papers within ten days from receipt of the
order. The court also decreed that thirty days after receipt of the last
affidavit and position paper, or upon expiration of the period for filing the
same, judgment shall be rendered on the case.[7]
Respondent failed to submit the required affidavits and position paper,
as may be gleaned from the Decision dated March 19, 1992 of the MCTC
where it was noted that only the plaintiffs submitted their affidavits and
position papers.[8]
Nonetheless, the court dismissed the complaint for unlawful detainer
principally on the ground that the plaintiffs are not the real parties-in-
interest. The dispositive portion of the Decisionreads:
WHEREFORE, this case is hereby dismissed on the ground that the
plaintiffs have no legal capacity to sue as they are not the real party
(sic) in interest, in addition to the fact that there is no privity of contract
PINEDAPCGRNMAN
between the plaintiffs and the defendants as to the verbal lease
agreement.
SO ORDERED.[9]
Plaintiffs appealed the Decision to the Regional Trial Court (RTC) of
Batangas City, Branch 1, where the case was docketed as Civil Case
No. 3378. On April 10, 1992, the RTC directed the parties to file their
respective memoranda.[10] Once again, respondent failed the
complainant and his wife. As observed by the RTC in
its Decision[11] dated September 7, 1992, respondent did not file the
memorandum for his clients, thereby prompting the court to consider the
case as submitted for decision.[12]
In its Decision, the RTC reversed the decision appealed from as it held
that plaintiffs are the co-owners of the property in dispute and as such
are parties-in-interest.[13] It also found that the verbal lease agreement
was on a month-to-month basis and perforce terminable by the plaintiffs
at the end of any given month upon proper notice to the defendants.[14] It
also made a finding that defendants incurred rentals in arrears.[15] The
decretal portion of the Decision reads, thus:
WHEREFORE, premises considered, the Decision of the Municipal
Circuit Trial Court of Taysan-Lobo dated March 19, 1992, is REVERSED
and SET ASIDE and new one entered, to wit:
Defendants ARTEMIO ENDAYA and PATROSENIA ENDAYA and all
persons claiming under them are hereby ordered to vacate and
dismantle their house on the land subject of the verbal lease agreement
at their own expense. The defendants are likewise ordered to pay the
monthly rental of P25.00 from the month of January 1991 to November
1991 and ONE THOUSAND (P1,000.00) PESOS monthly from
December 1991 until the defendants finally vacate and surrender
possession of the subject property to the plaintiffs and to pay attorneys
fee in the amount of TEN THOUSAND (P10,000.00) PESOS.
No pronouncement as to cost.[16]
Complainant received a copy of the Decision on October 7, 1992. Two
days later, or on October 9, 1992, complainant confronted respondent
with the adverse decision but the latter denied receipt of a copy
thereof. Upon inquiry with the Branch Clerk of Court, however,
complainant found out that respondent received his copy back
on September 14, 1992.[17]
Having lost the unlawful detainer case, on January 12, 1993 complainant
filed the present administrative complaint against the respondent for
professional delinquency consisting of his failure to file the required
pleadings in behalf of the complainant and his spouse. Complainant
contends that due to respondents inaction he lost the opportunity to
present his cause and ultimately the case itself.[18]
In his Comment[19] dated March 17, 1993, respondent denies that he
committed professional misconduct in violation of his oath, stressing that
he was not the original counsel of complainant and his spouse.[20] He
further avers that when he agreed to represent complainant at the
continuation of the preliminary conference in the main case, it was for
the sole purpose of asking leave of court to file an amended answer
because he was made to believe by the complainant that the answer was
prepared by a non-lawyer. Upon discovering that the answer was in fact
the work of a lawyer, forthwith he asked the court to relieve him as
complainants counsel, but he was denied. He adds that he agreed to file
the position paper for the complainant upon the latters undertaking to
provide him with the documents which support the position that plaintiffs
are not the owners of the property in dispute. As complainant had
reneged on his promise, he claims that he deemed it more prudent not
to file any position paper as it would be a repetition of the answer. He
offers the same reason for not filing the memorandum on appeal with the
RTC. Finally, respondent asserts that he fully explained his stand as
regards Civil Case No. 34-MCTC-T to the complainant.[21]
Pursuant to our Resolution[22] dated May 10, 1993, complainant filed
his Reply[23] to respondents Comment wherein he merely reiterated his
allegations in the Complaint.
Page 295
On July 28, 1993, this Court directed respondent to file his rejoinder
within ten days from notice of our Resolution.[24] But he failed to do so
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
despite the lapse of a considerable period of time. This prompted the
Court to require respondent to show cause why he should not be
disciplinarily dealt with or held in contempt and to file his rejoinder, both
within ten (10) days from notice.[25]
In his Explanation[26] dated February 28, 1997, respondent admits
having received a copy of the resolution requiring him to file a rejoinder.
However, he asserts that he purposely did not file a rejoinder for he
believed in good faith that a rejoinder to complainants reply is no longer
necessary.[27] He professes that in electing not to file a rejoinder he did
not intend to cast disrespect upon the Court.[28]
On June 16, 1997, we referred this case to the Office of the Bar Confidant
for evaluation, report and recommendation.[29]
In its Report[30] dated February 6, 2001, the Office of the Bar Confidant
found respondent negligent in handling the case of complainant and his
wife and recommended that he be suspended from the practice of law
for one month. The pertinent portions of the Report read, thus:
It is to be noted that after appearing at the preliminary conference before
the Municipal Circuit Trial Court, respondent was never heard from
again. Respondents seeming indifference to the cause of his client,
specially when the case was on appeal, caused the defeat of herein
complainant. Respondent practically abandoned complainant in the
midst of a storm. This is even more made serious of the fact that
respondent, at that time, was assigned at the Public Attorneys Office- a
government entity mandated to provide free and competent legal
assistance.
A lawyers devotion to his clients cause not only requires but also entitles
him to deploy every honorable means to secure for the client what is
justly due him or to present every defense provided by law to enable the
latters cause to succeed. (Miraflor vs. Hagad, 244 SCRA 106)
....
The facts, however, do not show that respondent employed every legal
and honorable means to advance the cause of his client. Had respondent
tried his best, he could have found some other defenses available to his
client; but respondent was either too lazy or too convinced that his client
had a losing case.
....
For intentionally failing to submit the pleadings required by the court,
respondent practically closed the door to the possibility of putting up a
fair fight for his client. As the Court once held, A client is bound by the
negligence of his lawyer. (Diaz-Duarte vs. Ong, 298 SCRA 388)[31]
However, the Bar Confidant did not find complainant entirely
faultless. She observed, viz:
Respondents allegation that complainant failed in his promise to submit
the documents to support his claim was not denied by complainant;
hence, it is deemed admitted. Complainant is not without fault; for
misrepresenting that he could prove his claim through supporting
documents, respondent was made to believe that he had a strong leg to
stand on. A party cannot blame his counsel for negligence when he
himself was guilty of neglect. (Macapagal vs. Court of Appeals, 271
SCRA 491)[32]
On April 18, 2001, we referred the case to the Integrated Bar of the
Philippines for investigation, report and recommendation.
Several hearings were set by the IBP but complainant did not appear
even once. Respondent attended five hearings, but he failed to present
evidence in support of his defense, as required by Investigating
Commissioner Victor C. Fernandez. This compelled the latter to make
his report on the basis of the pleadings and evidence forwarded by the
Office of the Bar Confidant.
On October 11, 2002, Commissioner Fernandez issued
his Report[33] wherein he concurred with the findings and
recommendation of the Office of the Bar Confidant.
In a Resolution[34] dated April 26, 2003, the IBP Board of Governors
adopted the Report of Commissioner Fernandez.
The Court is convinced that respondent violated the lawyers oath not
only once but a number of times in regard to the handling of his clients
PINEDAPCGRNMAN
cause. The repeated violations also involve defilement of
several Canons in the Code of Professional Responsibility.
Right off, the Court notes that respondent attributes his failure to file the
required pleadings for the complainant and his wife invariably to his
strong personal belief that it was unnecessary or futile to file the
pleadings. This was true with respect to the affidavits and position paper
at the MCTC level, the appeal memorandum at the RTC level and the
rejoinder at this Courts level. In the last instance, it took respondent as
long as three years, under compulsion of a show cause order at that,
only to manifest his predisposition not to file a rejoinder after all. In other
words, at the root of respondents transgressions is his seeming stubborn
mindset against the acts required of him by the courts. This intransigent
attitude not only belies lack of diligence and commitment but evinces
absence of respect for the authority of this Court and the other courts
involved.
The lawyers oath embodies the fundamental principles that guide every
member of the legal fraternity. From it springs the lawyers duties and
responsibilities that any infringement thereof can cause his disbarment,
suspension or other disciplinary action.[35]
Found in the oath is the duty of a lawyer to protect and safeguard the
interest of his client. Specifically, it requires a lawyer to conduct himself
to the best of his knowledge and discretion with all good fidelity as well
to the courts as to his clients.[36] This duty is further stressed in Canon
18 of the Code of Professional Responsibility which mandates that (A)
lawyer shall serve his client with competence and diligence.
In this case, evidence abound that respondent failed to demonstrate the
required diligence in handling the case of complainant and his spouse.
As found by the Office of the Bar Confidant,[37] after appearing at the
second preliminary conference before the MCTC, respondent had not
been heard of again until he commented on the complaint in this
case. Without disputing this fact, respondent reasons out that his
appearance at the conference was for the sole purpose of obtaining
leave of court to file an amended answer and that when he failed to
obtain it because of complainants fault he asked the court that he be
relieved as counsel.[38] The explanation has undertones of dishonesty for
complainant had engaged respondent for the entire case and not for just
one incident. The alternative conclusion is that respondent did not know
his procedure for under the Rules on Summary Procedure [39] the
amended answer is a prohibited pleading.
Even assuming respondent did in fact ask to be relieved, this could not
mean that less was expected from him. Once a lawyer takes the cudgels
for a clients case, he owes it to his client to see the case to the end. This,
we pointed out in Legarda v. Court of Appeals,[40] thus:
It should be remembered that the moment a lawyer takes a clients cause,
he covenants that he will exert all effort for its prosecution until its final
conclusion. A lawyer who fails to exercise due diligence or abandons his
clients cause make him unworthy of the trust reposed on him by the
latter.[41]
Also, we held in Santiago v. Fojas,[42] every case a lawyer accepts
deserves his full attention, diligence, skill, and competence, regardless
of its importance and whether he accepts if for a fee or for free. In other
words, whatever the lawyers reason is for accepting a case, he is duty
bound to do his utmost in prosecuting or defending it.
Moreover, a lawyer continues to be a counsel of record until the lawyer-
client relationship is terminated either by the act of his client or his own
act, with permission of the court. Until such time, the lawyer is expected
to do his best for the interest of his client [43]
Thus, when respondent was directed to file affidavits and position paper
by the MCTC, and appeal memorandum by the RTC, he had no choice
but to comply. However, respondent did not bother to do so, in total
disregard of the court orders. This constitutes negligence and
malpractice proscribed by Rule 18.03 of the Code of Professional
Responsibility which mandates that (A) lawyer shall not neglect a legal
matter entrusted to him and his negligence in connection therewith shall
Page 296
render him liable.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Respondents failure to file the affidavits and position paper at the MCTC
did not actually prejudice his clients, for the court nevertheless rendered
a decision favorable to them.However, the failure is per se a violation of
Rule 18.03.
It was respondents failure to file appeal memorandum before the RTC
which made complainant and his wife suffer as it resulted in their loss of
the case. As found by the Office of the Bar Confidant, to which we fully
subscribe, in not filing the appeal memorandum respondent denied
complainant and his spouse the chance of putting up a fair fight in the
dispute. Canon 19prescribes that (A) lawyer shall represent his client
with zeal within the bounds of the law. He should exert all efforts to avail
of the remedies allowed under the law. Respondent did not do so,
thereby even putting to naught the advantage which his clients
apparently gained by prevailing at the MCTC level. Verily, respondent
did not even bother to put up a fight for his clients. Clearly, his conduct
fell short of what Canon 19 requires and breached the trust reposed in
him by his clients.
We cannot sustain respondents excuse in not filing the affidavits and
position paper with the MCTC and the appeal memorandum with the
RTC. He claims that he did not file the required pleadings because
complainant failed to furnish him with evidence that would substantiate
complainants allegations in the answer. He argues that absent the
supporting documents, the pleadings he could have filed would just be a
repetition of the answer. However, respondent admits in his comment
that complainant furnished him with the affidavit of persons purporting to
be barangay officials attesting to an alleged admission by Felomino
Hernandez, the brother of the plaintiffs in the unlawful detainer case, that
he had already bought the disputed property.[44] This did not precipitate
respondent into action despite the evidentiary value of the affidavit,
which was executed by disinterested persons. Said affidavit could have
somehow bolstered the claim of complainant and his wife which was
upheld by the MCTC that plaintiffs are not the real parties-in-interest.
While respondent could have thought this affidavit to be without
probative value, he should have left it to the sound judgment of the court
to determine whether the affidavit supports the assertions of his clients.
That could have happened had he filed the required position paper and
annexed the affidavit thereto.
Further, notwithstanding his belief that without the supporting documents
filing the required pleadings would be a futile exercise, still respondent
should have formally and promptly manifested in court his intent not to
file the pleadings to prevent delay in the disposition of the
case.[45] Specifically, the RTC would not have waited as it did for the
lapse of three months from June 5,1992, the date when plaintiffs-
appellants submitted their appeal memorandum, before it rendered
judgment. Had it known that respondent would not file the appeal
memorandum, the court could have decided the case much earlier.
For his failure to inform the court, respondent violated Canon 12, to wit:
Canon 12: A lawyer shall exert every effort and consider it his duty to
assist in the speedy and efficient administration of justice.
Respondent likewise failed to demonstrate the candor he owed his
client. Canon 17 provides that (A) lawyer owes fidelity to the cause of his
client and he shall be mindful of the trust and confidence reposed in him.
When complainant received the RTC decision, he talked to respondent
about it.[46] However, respondent denied knowledge of the decision
despite his receipt thereof as early as September 14, 1992. Obviously,
he tried to evade responsibility for his negligence. In doing so,
respondent was untruthful to complainant and effectively betrayed the
trust placed in him by the latter.
On top of all these is respondents employment as a lawyer of the Public
Attorneys Office which is tasked to provide free legal assistance for
indigents and low-income persons so as to promote the rule of law in the
protection of the rights of the citizenry and the efficient and speedy
administration of justice.[47] Against this backdrop, respondent should
have been more judicious in the performance of his professional
obligations. As we held in Vitriola v. Dasig[48] lawyers in the government
are public servants who owe the utmost fidelity to the public service.
PINEDAPCGRNMAN
Furthermore, a lawyer from the government is not exempt from
observing the degree of diligence required in the Code of Professional
Responsibility. Canon 6 of the Code provides that the canons shall apply
to lawyers in government service in the discharge of their official tasks.
At this juncture, it bears stressing that much is demanded from those
who engage in the practice of law because they have a duty not only to
their clients, but also to the court, to the bar, and to the public. The
lawyers diligence and dedication to his work and profession not only
promote the interest of his client, it likewise help attain the ends of justice
by contributing to the proper and speedy administration of cases, bring
prestige to the bar and maintain respect to the legal profession.[49]
The determination of the appropriate penalty to be imposed on an errant
attorney involves the exercise of sound judicial discretion based on the
facts of the case.[50] In cases of similar nature, the penalty imposed by
this Court consisted of reprimand,[51] fine of five hundred pesos with
warning,[52] suspension of three months,[53] six months,[54] and even
disbarment in aggravated cases.[55]
The facts and circumstances in this case indubitably show respondents
failure to live up to his duties as a lawyer in consonance with the
strictures of the lawyers oath and the Code of Professional
Responsibility, thereby warranting his suspension from the practice of
law. At various stages of the unlawful detainer case, respondent was
remiss in the performance of his duty as counsel.
To reiterate, respondent did not submit the affidavits and position paper
when required by the MCTC. With his resolution not to file the pleadings
already firmed up, he did not bother to inform the MCTC of his resolution
in mockery of the authority of the court. His stubbornness continued at
the RTC, for despite an order to file an appeal memorandum, respondent
did not file any. Neither did he manifest before the court that he would no
longer file the pleading, thus further delaying the proceedings. He had
no misgivings about his deviant behavior, for despite receipt of a copy of
the adverse decision by the RTC he opted not to inform his clients
accordingly. Worse, he denied knowledge of the decision when
confronted by the complainant about it.
At this Courts level, respondents stubborn and uncaring demeanor
surfaced again when he did not file a rejoinder to complainants reply.
Respondents story projects in vivid detail his appalling indifference to his
clients cause, deplorable lack of respect for the courts and a brazen
disregard of his duties as a lawyer.
However, we are not unmindful of some facts which extenuate
respondents misconduct. First, when complainant sought the assistance
of respondent as a PAO lawyer, he misrepresented that his answer was
prepared by someone who is not a lawyer. Second, when complainant
showed respondent a copy of their answer with the MCTC, he assured
him that he had strong evidence to support the defense in the answer
that plaintiffs were no longer the owners of the property in dispute.
However, all that he could provide respondent was the affidavit of the
barangay officials. Last but not least, it is of public knowledge that the
Public Attorneys Office is burdened with a heavy caseload.
All things considered, we conclude that suspension for two (2) months
from the practice of law is the proper and just penalty.
WHEREFORE, respondent Atty. Wilfredo Oca is ordered SUSPENDED
from the practice of law for two (2) months from notice, with the warning
that a similar misconduct will be dealt with more severely. Let a copy of
this decision be attached to respondents personal record in the Office of
the Bar Confidant and copies be furnished to all chapters of the
Integrated Bar of the Philippines (IBP) and to all the courts in the land.
SO ORDERED.
VALERIANA U. DALISAY, A.C. No. 5655
Complainant,
Present:
Page 297
PANGANIBAN, J., Chairman,
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LEGAL ETHICS
SANDOVAL-GUTIERREZ,
-versus- CORONA,
CARPIO MORALES, and
GARCIA, JJ.
Promulgated:
ATTY. MELANIO MAURICIO,
JR., January 23, 2006
Respondent.
x-----------------------------------------------------------------------------------------x
RESOLUTION
SANDOVAL-GUTIERREZ, J.:
At bar is a motion for reconsideration of our Decision dated April 22, 2005
finding Atty. Melanio Batas Mauricio, Jr., respondent, guilty of
malpractice and gross misconduct and imposing upon him the penalty of
suspension from the practice of law for a period of six (6) months.
A brief revisit of facts is imperative, thus:
On October 13, 2001, Valeriana U. Dalisay, complainant, engaged
respondents services as counsel in Civil Case No. 00-044, entitled Lucio
De Guzman, etc., complainants, v. Dalisay U. Valeriana,
respondent, pending before the Municipal Trial Court, Branch 1,
Binangonan, Rizal. Notwithstanding his receipt of documents and
attorneys fees in the total amount of P56,000.00 from complainant,
respondent never rendered legal services for her. As a result, she
terminated the attorney-client relationship and demanded the return of
her money and documents, but respondent refused.
On January 13, 2004, Investigating Commissioner Lydia A. Navarro of
the Integrated Bar of the Philippines (IBP) Commission on Bar Discipline,
found that for the amount of P56,000.00 paid by the complainant x x x,
no action had been taken nor any pleadings prepared by the respondent
except his alleged conferences and opinions rendered when
complainant frequented his law office. She recommended that
respondent be required to refund the amount of P56,000.00 to the
complainant, and surprisingly, that the complaint be dismissed.
On February 27, 2004, the IBP Board of Governors passed Resolution
No. XVI-2004-121, adopting and approving in toto Commissioner
Navarros Report and Recommendation.
On April 22, 2005, we rendered the assailed Decision.
Incidentally, upon learning of our Decision, respondent went to the MTC,
Branch I, Binangonan, Rizal to verify the status of Civil Case No. 00-044.
There, he learned of the trial courts Decision dated December 6, 2001
holding that the tax declarations and title submitted by complainant are
not official records of the Municipal Assessor and the Registry of Deed.
Thereupon, respondent filed a Sworn Affidavit Complaint[1] against
complainant charging her with violations of Article 171[2] and
172,[3] and/or Article 182[4] of the Revised Penal Code. He alleged that
complainant offered tampered evidence.
In this motion for reconsideration, respondent raises the following
arguments:
First, complainant did not engage his services as counsel in Civil Case
No. 00-044. She hired him for the purpose of filing two new petitions, a
petition for declaration of nullity of title and a petition for review of a
decree.
Second, Civil Case No. 00-044 was considered submitted for decision
as early as August 6, 2001, or more than two months prior to October
13, 2001, the date he was engaged as counsel, hence, he could not have
done anything anymore about it. Third, complainant refused to provide
PINEDAPCGRNMAN
him with documents related to the case, preventing him from doing his
job.
And fourth, complainant offered tampered evidence in Civil Case No. 00-
004, prompting him to file falsification cases against her.
In her opposition to the motion, complainant contends
that: (1) respondent violated the principle of confidentiality between a
lawyer and his client when he filed falsification charges against
her; (2) respondent should have returned her money; (3) respondent
should have verified the authenticity of her documents earlier if he really
believed that they are falsified; and (4) his refusal to return her money
despite this Courts directive constitutes contempt.
We deny respondents motion for reconsideration.
It is axiomatic that no lawyer is obliged to act either as adviser or
advocate for every person who may wish to become his client. He has
the right to decline employment. But once he accepts money from a
client, an attorney-client relationship is established, giving rise to the duty
of fidelity to the clients cause.[5] From then on, he is expected to be
mindful of the trust and confidence reposed in him. He must serve the
client with competence and diligence, and champion the latters cause
with wholehearted devotion.[6]
Respondent assumed such obligations when he received the amount
of P56,000.00 from complainant and agreed to handle Civil Case No. 00-
044. Unfortunately, he had been remiss in the performance of his duties.
As we have ruled earlier, there is nothing in the records to show that he
(respondent) entered his appearance as counsel of record for
complainant in Civil Case No. 00-044. Neither is there any evidence nor
pleading submitted to show that he initiated new petitions.
With ingenuity, respondent now claims that complainant did not engage
his services for Civil Case No. 00-044 but, instead, she engaged him for
the filing of two new petitions. This is obviously a last-ditch attempt to
evade culpability. Respondent knows very well that if he can successfully
disassociate himself as complainants counsel in Civil Case No.00-044,
he cannot be held guilty of any dereliction of duties.
But respondents current assertion came too late in the day. He is already
bound by his previous statements. In his Verified Comment on the
Affidavit-Complaint,[7] he categorically stated that complainant engaged
his services in Civil Case No. 00-044, originally handled by Atty. Oliver
Lozano, thus:
4.a. Complainant was referred to the Respondent by Atty. Oliver Lozano.
4.b. The referral intrigued Respondent no end, simply because Atty.
Oliver Lozano is a bright lawyer and is very much capable of handling
Civil Case No. 00-044.
4.c. Respondent-out of respect from Atty. Oliver Lozano did not inquire
the reason for the referral. But he was made to understand that he was
being referred because Atty. Oliver Lozano believed that Respondent
would be in a better position to prosecute and/or defend the Complainant
in Civil Case No. 00-044.
xxxxxx
5.c. Complainant went to the law office of Respondent on October 13,
2001 and demanded that he provides her with free legal service.
xxxxxx
5.e. Respondent, however, told Complainant that the case (Civil Case
No. 00-044) would not entitle her to a free legal service and advised her
to just re-engage the services of Atty. Oliver Lozano.
5.f. Undaunted, Complainant asked Respondent to assess her case and
how she and her lawyer should go prosecuting and/or defending her
position therein.
Page 298
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
5.g. Honestly believing that Complainant was no longer represented by
counsel in Civil Case No. 00-044 at that time, Respondent gave his
professional opinion on the factual and legal matters surrounding the
said case.
5.h. Apparently impressed with the opinion of the Respondent,
Complainant became even more adamant in asking the former to
represent her in Civil Case No. 00-044.
5.i. Respondent then told Complainant that she would be charged as a
regular client is she insists in retaining his services.
5.j. It was at this juncture that Complainant asked Respondent about his
fees.
5.k. After re-assessing Civil Case No. 00-044, Respondent told
Complainant that he will have to charge her with an acceptance fee of
One Hundred Thousand Pesos (P100,000.00), aside form being charged
for papers/pleadings that may have to be prepared and filed in court in
connection with the aforesaid case.
xxxxxx
5.n. A few days after, Respondent got a call from Atty. Oliver Lozano.
The said Atty. Oliver Lozano interceded for and in behalf of Complainant
and asked that the acceptance fee that Respondent was charging the
Complainant be reduced.
xxxxxx
5.r. Complainant then returned to the office of the Respondent on
October 20, 2001. The latter then informed the former of his conversation
with Atty. Oliver Lozano and his (respondents) decision to reduce the
acceptance fee.
5.s. Complainant was very grateful at the time, even shedding a tear or
two simply because Respondent had agreed to handle her case at a
greatly reduced acceptance fee.
Statements of similar tenor can also be found in respondents
Memorandum[8] filed with the IBP.
Undoubtedly, respondents present version is a flagrant departure from
his previous pleadings. This cannot be countenanced. A party should
decide early what version he is going to advance. A change of theory in
the latter stage of the proceedings is objectionable, not due to the strict
application of procedural rules, but because it is contrary to the rules of
fair play, justice and due process.[9] The present administrative case was
resolved by the IBP on the basis of respondents previous admission that
complainant engaged his legal services in Civil Case No. 00-044. He
cannot now unbind himself from such admission and its consequences.
In fact, if anything at all has been achieved by respondents inconsistent
assertions, it is his dishonesty to this Court.
At any rate, assuming arguendo that complainant indeed engaged
respondents services in filing the two (2) new petitions, instead of Civil
Case No. 00-044, still, his liability is unmistakable. There is nothing in
the records to show that he filed any petition. The ethics of the profession
demands that, in such a case, he should immediately return the filing
fees to complainant. In Parias v. Paguinto,[10] we held that a lawyer shall
account for all money or property collected from the client. Money
entrusted to a lawyer for a specific purpose, such as for filing fee, but not
used for failure to file the case must immediately be returned to the client
on demand. Per records, complainant made repeated demands, but
respondent is yet to return the money.
Neither do we find merit in respondents second argument. The fact
that Civil Case No. 00-044 was already submitted for decision does not
justify his inaction. After agreeing to handle Civil Case No. 00-044, his
duty is, first and foremost, to enter his appearance. Sadly, he failed to do
PINEDAPCGRNMAN
this simple task. He should have returned complainants money. Surely,
he cannot expect to be paid for doing nothing.
In his third argument, respondent attempts to evade responsibility by
shifting the blame to complainant. He claims that she refused to provide
him with documents vital to the case. He further claims that he would be
violating the Code of Professional Responsibility by handling a case
without adequate preparation. This is preposterous. When a lawyer
accepts a case, his acceptance is an implied representation that he
possesses the requisite academic learning, skill and ability to handle the
case.[11] As a lawyer, respondent knew where to obtain copies of the
certificates of title. As a matter of fact, he admitted that his Law Office,
on its own, managed to verify the authenticity of complainants title. It
bears reiterating that respondent did not take any action on the case
despite having been paid for his services. This is tantamount to
abandonment of his duties as a lawyer and taking undue advantage of
his client.
Finally, in an ironic twist of fate, respondent became the accuser of
complainant. In his fourth argument, respondent accuses her of offering
falsified documentary evidence in Civil Case No. 00-004, prompting him
to file falsification cases against her. He thus justifies his inability to
render legal services to complainant.
Assuming that complainant indeed offered falsified documentary
evidence in Civil Case No. 00-044, will it be sufficient to exonerate
respondent? We believe not. First, Canon 19 outlines the procedure in
dealing with clients who perpetrated fraud in the course of a legal
proceeding. Consistent with its mandate that a lawyer shall represent his
client with zeal and only within the bounds of the law, Rule 19.02 of the
same Canon specifically provides:
Rule 19.02 A lawyer who has received information that his clients has, in
the course of the representation, perpetrated a fraud upon a person or
tribunal, shall promptly call upon the client to rectify the same, and failing
which he shall terminate the relationship with such client in accordance
with the Rules of Court.
As a lawyer, respondent is expected to know this Rule. Instead of
inaction, he should have confronted complainant and ask her to rectify
her fraudulent representation. If complainant refuses, then he should
terminate his relationship with her.
Understandably, respondent failed to follow the above-cited Rule. This
is because there is no truth to his claim that he did not render legal
service to complainant because she falsified the documentary evidence
in Civil Case No.00-044. This brings us to the second reason why we
cannot sustain his fourth argument. The pleadings show that he learned
of the alleged falsification long after complainant had terminated their
attorney-client relationship. It was a result of his active search for a
justification of his negligence in Civil Case No. 00-044. As a matter of
fact, he admitted that he verified the authenticity of complainants title
only after the news of his suspension spread in the legal community. To
our mind, there is absurdity in invoking subsequent knowledge of a fact
as justification for an act or omission that is fait accompli.
Obviously, in filing falsification charges against complainant, respondent
was motivated by vindictiveness.
In fine, let it be stressed that the authority of an attorney begins with his
or her retainer.[12] It gives rise to a relationship between an attorney and
a client that is highly fiduciary in nature and of a very delicate, exacting,
and confidential character, requiring a high degree of fidelity and good
faith.[13] If much is demanded from an attorney, it is because the
entrusted privilege to practice law carries with it the correlative duties not
only to the client but also to the court, to the bar, and to the public. A
lawyer who performs his duty with diligence and candor not only protects
the interest of his client; he also serves the ends of justice, does honor
to the bar, and helps maintain the respect of the community to the legal
profession.[14] Indeed, law is an exacting goddess demanding of her
votaries not only intellectual but also moral discipline.
Page 299
WHEREFORE, we DENY respondents motion for reconsideration. Our
Decision dated April 22, 2005 is immediately executory. Respondent is
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
directed to report immediately to the Office of the Bar Confidant his
compliance with our Decision.
Let a copy of this Resolution be attached to his personal record and
copies furnished the Integrated Bar of the Philippines and the Office of
the Court Administrator for dissemination to all courts.
SO ORDERED.
PINEDAPCGRNMAN
the name of Cornelia, 49,803 sq. meters; OCT No. P-4288 in the name
of Dominga, 19,649 sq. meters; OCT No. P-4289 in the name of
Apolonia, 19,649 sq. meters; OCT No. P-4290 in the name of Olimpio,
19,650 sq. meters; OCT No. P-4291 in the name of Florencio, 19,650 sq.
meters; and OCT No. P-4292 in the name of Cornelia, 19,648 sq. meters
(collectively referred to as subject property).

Cirila delos Santos (respondent) is a duly licensed real estate broker.

Rule 18.04 A lawyer shall keep the client informed of the status of
his case and shall respond within a reasonable time to the clients Sometime in 1995, Olimpio gave respondent the plan of the subject
request for information. property and verbally authorized her to sell the same. Thereafter,
Competence: sufficiency of lawyers qualification to deal with respondent referred in writing the subject property to Odessa Antiporda
the matter in question and includes knowledge and skill and (Antiporda), a realtor and a fellow estate broker, who had earlier informed
the ability to use them effectively in the interest of the client. respondent that she had a prospective buyer interested to buy a land
A lawyer must keep himself constantly abreast with the trend with an area of about 15 to 20 hectares to be used as a retirement
of authoritative pronouncements and developments in all village. Antiporda in turn referred the subject property to one Alfred
branches of law. Tantiansu (Tantiansu). Olimpio then gave respondent a written authority
to sell the same.[3]
There must be extraordinary diligence in prosecution or
defense of his clients cause.
In May 1996, respondent introduced Olimpio to Tantiansu and they all
If a lawyer errs like any other human being, he is not went together to the location of the properties. Tantiansu showed interest
answerable for every error or mistake, and will be protected in the properties and asked for the lowering of price, which Olimpio
as long as he acts honestly and in good faith to the best of his pegged at P315.00 per square meter. Respondent asked Olimpio for the
skill and knowledge. renewal of her authority, to sell to which the former obliged. In the
Lawyer is not an insurer of the result in a case where he is authority to sell, it was specified that she would still be paid her
engaged in the counsel. commission even after the said authority expired, provided she
registered in writing her prospective buyer with whom she negotiated
during the period of authority. Accordingly, respondent notified
DOMINGA RUIZ, APOLONIA G.R. No. 166386 petitioners in writing that Tantiansu was her buyer. [4]
RUIZ,
FLORENCIO RUIZ, CORNELIA A meeting was subsequently held among Olimpio, respondent and
RUIZ, OLIMPIO RUIZ, and HEIRS Present: Tantiansu in Tantiansu's office where the prospective buyer showed
OF TOMASA RUIZ, interest in buying the properties. A few weeks later, a meeting was held
Petitioners, AUSTRIA-MARTINEZ, between Olimpio and Tantiansu only, without respondent. Olimpio asked
Acting Chairperson, respondent to lower her commission from 5% to 2.5%; otherwise, the
TINGA,* sale would not push through.But respondent, through a letter sent to
- versus - CHICO-NAZARIO, Olimpio, answered that she was amenable to a commission of 4%.[5]
NACHURA, and
DE CASTRO,** JJ. Respondent later learned that the properties were sold to different
corporations at P60.00 per square meter, as indicated in the deeds of
CIRILA DELOS SANTOS, Promulgated: sale. Upon her verification of the articles of incorporation of the
Respondent.*** January 27, 2009 corporation-buyers with the Securities and Exchange Commission, she
x--------------------------------------------------- found out that the corporations were owned by Tantiansu. Respondent
-------x then demanded the payment of her broker's commission, but was
unheeded.

DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari and mandamus seeking
that the Resolutions dated September 21, 2004[1] and December 21,
2004[2] of the Court of Appeals (CA) in CA-G.R. SP No. 85872 be
reversed and set aside; and that the CA be directed to give due course
to the petition for certiorari, prohibition and mandamus filed before it by
herein petitioners.
A brief factual background is necessary for a proper perspective in the
resolution of herein petition.
Dominga, Apolonia, Florencio, Cornelia, Tomasa and Olimpio, all
surnamed Ruiz (petitioners), were the original owners of seven parcels
of land with a total area of 194,284 square meters located
Respondent filed with the Regional Trial Court (RTC), Branch 275, Las
Pias City, a complaint[6] for collection of sum of money and damages
against all petitioners, alleging that it was through her effort as a real
estate broker that she was able to bring about the consummation of the
sale of the subject property, to petitioners' immense gain and benefits;
that despite the sale and her repeated demands, petitioners refused to
pay her broker's fee.
Petitioners Domingo Ruiz, et al. filed their Answer with counterclaim and
alleged as affirmative defense that at the time of the consummation of
the sale of the subject properties, there was no longer any
existing broker's agreement between them; that respondent had no more
authority from them to sell the properties or, assuming there was such
authority, the same had already lapsed or expired; that it was petitioners'
understanding at the time of the sale of the subject properties that
Tantiansu, the buyer, would be responsible for the payment of the
broker's commission, whoever the broker may be; that petitioners knew
that respondent had initially claimed her broker's commission from
Page 300

in Barangay Kaytinga, Alfonso, Cavite, covered by OCT No. P-4017 in Tantiansu; but after Tantiansu's death, and failing to collect any broker's
the name of Tomasa, covering 46,235 sq. meters; OCT No. P-4018 in

Intelligentia et Scientia Semper Mea

LEGAL ETHICS
commission from said buyer, respondent commenced the present action
against them.
Issues having been joined, a full-blown trial on the merits ensued.
On September 22, 2003, the RTC[7] rendered its judgment, the
dispositive portion of which reads:
WHEREFORE, judgment is rendered in favor of plaintiff [respondent]
and against the defendants [petitioners], ordering the latter to pay the
plaintiff jointly and severally the sum of P2,447,524.80 plus legal interest
thereon from the filing of the complaint and moral damages
of P500,000.00 as well as exemplary damages of P200,000.00 and
attorney's fees of P100,000.00 and P2,000.00 per court appearance and
to pay the cost.[8]
Petitioners filed their notice of appeal.[9] On November 6, 2003,
respondent filed her Comment and/or opposition thereto, alleging that
the appeal was not perfected for failure of petitioners to file the
docket/appeal fee within the reglementary period to appeal.
In an Order[10] dated January 16, 2004, the RTC denied petitioners'
appeal and considered the appeal barred for failure of petitioners to pay
the appeal fee within the reglementary period as provided under Section
4, Rule 41 of the Rules of Civil Procedure. It ruled that the decision had
already become final and executory, and there was nothing more to be
appealed to the CA.
With the denial of their appeal, petitioners filed a petition for
relief[11] alleging that they were prevented from awaiting themselves of
an appeal due to mistake and excusable negligence of their counsel on
record, and that they had a good and substantial defense. Attached to
the petition was the Affidavit of Merit of Atty. Mark Edsel Ang (Atty. Ang),
petitioners' former counsel, wherein he stated that when he received the
decision on September 30, 2003, he immediately sent copies thereof to
petitioners by registered mail, as four of the six petitioners live abroad
while the other two live in Cavite; that he communicated with the RTC
Clerk of Court the fact that a notice of appeal was already filed and the
fees would be paid as soon as he got the confirmation of petitioners'
desire to appeal, to which the clerk of court gave her assurance on the
acceptance of the late payment of docket fees; that he received a long
distance call from petitioner Cornelia on October 15, 2003 confirming
petitioners' desire to appeal the decision; thus, he paid the appellate fees
on October 24, 2003. Atty. Ang admitted that it was through his
negligence that the appeal was belatedly filed.
In its Decision[12] dated June 18, 2004, the RTC denied the petition for
relief for lack of merit. The RTC found no merit in petitioners' contention
that the error of counsel to pay the appellate fees in due time was a
mistake constituting excusable negligence and ruled that the mistake of
counsel binds his client. The RTC held that petitioners' claim of a good
and valid defense was belied by the court's findings and conclusions
contained in its Decision dated September 22, 2003.
In an Order[13] dated June 24, 2004, the RTC granted the motion for
execution filed by respondent on the ground that the decision
dated September 22, 2003 had already become final and executory.
On July 5, 2004, notices of garnishment[14] were issued to the different
banks by sheriff Josefino Ortiz. Notice[15] of sale on execution of the
subject property was scheduled on September 3, 2004.
Petitioners filed a petition for certiorari, prohibition, and mandamus with
prayer for the issuance of a temporary restraining order/writ of
preliminary injunction with the CA, verified and certified by Dominga,
seeking to set aside the following: (1) Order dated January 16, 2004,
which denied petitioners' notice of appeal; (2) Decision dated June 18,
PINEDAPCGRNMAN
2004 denying petitioners' petition for relief; (3) Order dated June 24,
2004 declaring the Decision as final and executory and granting the
motion for execution filed by respondent; (4) notice of garnishment
issued on July 5, 2004; and notice of sale.
On September 21, 2004, the CA dismissed the petition, the dispositive
portion of which reads:
WHEREFORE, for being procedurally flawed, at the very least, this
petition is hereby DENIED DUE COURSE, and consequently
DISMISSED. And since the temporary restraining order and/or writ of
preliminary injunction is merely an adjunct to the main case, the same
must be pro tanto denied. [16]
The reasons given by the CA dismissing the petition outright are as
follows:
(1) No motion for reconsideration was filed against the challenged
Order issued by the respondent judge on January 16, 2004. Well settled
is the rule that a filing of a motion for reconsideration is a prerequisite to
the institution of a special civil action for certiorari.
(2) The names of the heirs of the petitioner Tomasa Ruiz are not
indicated, in violation of the first par. Section 3, Rule 46 of the 1997
Rules, which requires that the petition shall contain the full names and
actual addresses of all petitioners and respondents, a concise statement
of the matters involved, the factual background of the case, and the
grounds relied upon for the relief prayed for.
(3) There is no special power of attorney executed by the said heirs
authorizing Dominga to sign the verification and certification in their own
behalf.[17]
Petitioners' motion for reconsideration was denied in the assailed
Resolution dated December 21, 2004, as the CA found that the
arguments put forward in the motion were a virtual rehash of those
alleged in support of the petition.
Hence, herein petition raising the following issues:
1. WHETHER A MOTION FOR RECONSIDERATION IS
REQUIRED BEFORE RESORTING TO THE PETITION FOR
CERTIORARI FILED BY PETITIONERS BEFORE THE CA;
2. WHETHER THE NAMES OF THE HEIRS OF THE
PETITIONER TOMASA RUIZ ARE INDICATED IN THE PETITION;
3. WHETHER THERE IS NO SPECIAL POWER OF
ATTORNEY EXECUTED BY SAID HEIRS AUTHORIZING
PETITIONER TO SIGN THE VERIFICATION AND CERTIFICATION ON
THEIR OWN BEHALF.
4. WHETHER THE CA ACTED WITH HASTE ON ITS
BASESLESS CONCLUSION THAT PETITIONERS' MOTION FOR
RECONSIDERATION IS A VIRTUAL REHASH OF THOSE ALLEGED
IN SUPPORT OF ITS PETITION.[18]
The parties filed their respective memoranda.
Anent the first issue, petitioners assert that the CA erred in finding that
the filing of a motion for reconsideration is a prerequisite for the institution
of a special civil action for certiorari.
Under the peculiar circumstances of the present case, we agree with
Page 301
petitioners. There is no question that the filing of a motion for
reconsideration before resort to certiorari will lie is intended to afford the
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
court an opportunity to correct any actual or fancied error attributed to it
by way of re-examination of the legal and factual aspects of the case.[19]
However, the filing of a motion for reconsideration before availing of the
remedy of certiorari is not always a sine qua non[20] requirement, as
there are recognized exceptions: (a) where the order is a patent nullity,
as where the court a quo has no jurisdiction; (b) where the questions
raised in the certiorari proceedings have been duly, or are the same as
those, raised and passed upon by the lower court; (c) where there is an
urgent necessity for the resolution of the question and any further delay
would prejudice the interests of the government or of the petitioner, or
the subject matter of the action is perishable; (d) where, under the
circumstances, a motion for reconsideration would be useless; (e) where
petitioner was deprived of due process and there is extreme urgency for
relief; (f) where, in a criminal case, relief from an order of arrest is urgent
and the granting of such relief by the trial court is improbable; (g) where
the proceedings in the lower court are a nullity for lack of due process;
(h) where the proceedings were ex parte, or in which the petitioner had
no opportunity to object; and (i) where the issue raised is one purely of
law, or public interest is involved.[21] We find this case falling under
exceptions b, c and d.
Petitioners' notice of appeal was earlier denied by the RTC due to the
late payment of docket fees, and it ruled that its decision
dated September 22, 2003 had already become final and executory and
there was nothing more to be appealed to the CA. Clearly then, a motion
for reconsideration would be useless in the light of such declaration by
the RTC.
Petitioners' subsequent petition for relief from the denial of appeal was
denied by the RTC in its Decision dated June 18, 2004. The court
reiterated its disquisition found in its main decision dated September 22,
2003. In fact, just after the petition for relief was denied on June 18,
2004, the RTC issued an Order dated June 24, 2004 granting the motion
for execution filed by respondent. Thereafter, on July 5, 2004, notices of
garnishment of petitioners' goods, stocks, interest on stocks, shares and
any other personal properties in their control and possession were
already served by the sheriff on the different banks. Thus, petitioners
sufficiently showed that there was an urgent necessity for the filing of the
petition with the CA to rule on the issue of the denial of appeal and the
petition for relief.
Anent the second issue, the CA erred in finding that the names of the
heirs of petitioner Tomasa Ruiz were not indicated in the petition. In the
petition filed before the CA, it was alleged that the petitioners are as
follows:
Dominga Ruiz, resident of Kaytinga, Alfonso Cavite;
Apolonia Ruiz, resident of 105 Eagle Head Drive, Fort
Washington, Maryland, USA;
Cornelia Ruiz, resident of 12903 Turnberry Circle, Fort
Washington, Maryland, USA;
Olimpio Ruiz, resident of 4510 N. Troy, Chicago, Illinois, USA;
Florencio Ruiz, resident of Detecon Al Saudia Co. Ltd., PO Box 31443,
Jeddah, 21497;
Heirs of Tomasa Ruiz, all the above residents of the above-mentioned
addresses.[22]
In their motion for reconsideration of the CA Resolution dated September
21, 2004, petitioners alleged that there was substantial compliance with
the requirement that the full names and actual residents of all petitioners
must be stated, since all the petitioners are the only children of the late
Tomasa Ruiz, a fact that they had sufficiently alleged in their petition. We
find such explanation plausible, considering that the phrase heirs of
Tomasa Ruiz was followed by the words all the above, which means that
PINEDAPCGRNMAN
the heirs of Tomasa are the persons whose names are immediately
preceding.
As to the third issue, we also find that the CA erred in finding that there
were no special powers of attorney (SPAs) executed by the heirs of
Tomasa authorizing petitioner Dominga to sign the verification and
certification on their behalf. However, an examination of the
CA rollo shows that when the petition was filed with the CA, attached
were separate SPAs[23] of petitioners Apolonia, Cornelia, Olimpio,
Florencio, the heirs of Tomasa, executed in favor of their co-petitioner
Dominga, giving her the authority to sign the required verification and
certification of non-forum shopping.
Anent the fourth issue, we rule that the CA hastily concluded that the
allegations in petitioners' motion for reconsideration of the Resolution
dated September 21, 2000, were a mere rehash of those in support of
their petition for certiorari. Notably, the motion had sufficiently stated the
circumstances which would excuse petitioners for their non-filing of a
motion for reconsideration of the RTC decision dated June 24, 2004
before resorting to a petition for certiorari in the CA, to wit: the RTC's
declaration that its decision had already become final and executory and
that there was nothing more to be appealed to the CA; and the granting
of respondent's motion for execution as well as the sheriff's
implementation of such writ by the issuance of notices of
garnishment.Petitioners also pointed out to the CA that it had overlooked
the fact that the names of the heirs of Tomasa Ruiz were alleged in the
petition and clarified that they were the only heirs of petitioner Tomasa
and that they had executed separate SPAs in favor of petitioner
Dominga.
Thus, the CA committed a reversible error in outrightly dismissing the
petition and not giving due course to it as well as in denying petitioners'
motion for reconsideration.
Petitioners further claim that the RTC should have given due course to
their notice of appeal of the RTC Decision dated September 22, 2003 to
the CA since the late payment of appellate docket fees was due to the
mistake and excusable negligence of their counsel and they had a good
and substantial defense.
Instead of remanding the case to the CA which would only unduly
prolong the disposition of the case between the parties, we shall
resolve[24] the substantive issue raised in the petition forcertiorari filed
with the CA, to wit: Whether the RTC committed grave abuse of
discretion in denying petitioners' petition for relief from denial of appeal.
To begin with, petitioners, through counsel, received a copy of the RTC
decision dated September 22, 2003 on September 30 2003. Thus,
petitioners had until October 15, 2003 within which to perfect their appeal
by filing the notice of appeal[25] and paying the appellate docket and other
legal fees.[26] On October 14, 2003, petitioners filed their notice of appeal
through registered mail without paying the appeal fees.
It is a well-settled rule that the mere filing of the notice of appeal is not
enough, for it must be accompanied by the payment of the correct
appellate docket fees.[27] Payment in full of docket fees within the
prescribed period is mandatory.[28] It is an essential requirement without
which the decision appealed from would become final and executory as
if no appeal has been filed.Failure to perfect an appeal within the
prescribed period is not a mere technicality but jurisdictional, and failure
to perfect an appeal renders the judgment final and executory.[29]
Hence, there is no question that the RTC correctly dismissed petitioners'
appeal pursuant to Section 13, Rule 41 of the Rules of Court which
reads:
Page 302
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
SEC. 13. Dismissal of appeal. Prior to the transmittal of the original
record or the record on appeal to the appellate court, the trial court
may, motu proprio or on motion dismiss the appeal for having been
taken out of time, or for non-payment of the docket and other lawful fees
within the reglementary period.
However, petitioners filed a petition for relief from the RTC Order that did
not giving due course to their notice of appeal on the grounds of mistake
and excusable negligence committed by their counsel. They contend
that their counsel mistakenly erred when he relied in good faith on the
affirmation made by the trial court's clerk of court that the appeal fees
would be accepted even after the period for the filing of the notice of
appeal; that counsel also mistakenly relied on jurisprudence that
technical rules of procedure would be relaxed provided that the same
were substantially complied with; that counsel's negligence should not
be binding on them; that they have good and substantial defenses which
would result in the dismissal of the complaint or a reduction of the
monetary awards set forth in the decision.
Section 2, Rule 38 of the Rules of Court provides:
Section 2. Petition for relief from denial of appeal. When a judgment or
final order is rendered by any court in a case, and a party thereto, by
fraud, accident, mistake, or excusable negligence, has been prevented
from taking an appeal, he may file a petition in such court and in the
same case praying that the appeal be given due course.
Negligence to be excusable must be one which ordinary diligence and
prudence could not have guarded against.[30] Petitioners' counsel filed a
notice of appeal within the reglementary period for filing the same
without, however, paying the appellate docket fees. Counsel very well
knew that under the Rules of Court, the full amount of appellate docket
and other lawful fees must be paid within the same period that the notice
of appeal was filed, as he even allegedly communicated to the clerk of
court his request for additional time in order to consolidate the
confirmation of petitioners' desire to appeal.
The failure of counsel to pay the appellate docket fees on time
constitutes negligence. Despite receiving an overseas call on October
15, 2003, i.e., the last day to file the appeal, from petitioner Cornelia, who
then lived in Japan and expressed in behalf of the other petitioners their
desire to appeal the RTC decision, he paid the fees only on October 24,
2003.
It bears stressing that the Rules of Court explicitly provides for the
procedure for the perfection of appeal. The counsel of petitioners should
not have relied on the alleged assurance by the clerk of court of the
acceptance of the late payment of docket fees. As an officer of the court,
he should know that the affirmation of the clerk of court could not prevail
over the specific requirement of the rules. The rules of procedure are
meant to be followed and not to be subjected to the whims and
convenience of the parties and their counsels or by mere opinions of the
clerk of court.
Atty. Ang should not have presumed that the rules of procedure would
be relaxed in favor of his clients. His reliance on jurisprudence that the
application of the technical rules of procedure would be relaxed if the
same was subsequently complied with is not justified. The liberal
application of rules of procedure for perfecting appeals is still the
exception, and not the rule; and it is only allowed in exceptional
circumstances to better serve the interest of justice.[31] Atty. Ang's
negligence in not paying the docket fees on time cannot be considered
as excusable. The circumstances surrounding this case do not warrant
the relaxation of the rules.
PINEDAPCGRNMAN
Petitioners insist that they are not bound by the mistake of their counsel,
citing De Guzman v. Sandiganbayan[32] and Samala v. Court of
Appeals.[33]
In De Guzman, petitioner was convicted by the Sandiganbayan of anti-
graft and corrupt practices act for his failure to account for
the P200,000.00 he received for certain training programs of the
Department of Agriculture based on the testimony of the lone
prosecution witness that no such training program was held at the
designated places. Petitioner sought to be relieved from what he
considered as the serious and costly mistake of his former lawyers in
demurring to the prosecution evidence after leave was denied, the effect
of which deprived him of presenting the pieces of documentary evidence
showing due disbursement of the P200,000 received for the training
program which was actually conducted. The original documents were all
along kept in the records section of the Bureau of Plant Industry; and
these original copies were readily available, which if presented would
have completely belied the accusation against him. We ruled that since
no less than petitioner's liberty was at stake, the higher interests of
justice and equity demand that petitioner be not penalized for the costly
mistake of his previous counsel.
In contrast, the present case does not involve the life or liberty of
petitioners, and they were adequately heard with all the issues fully
ventilated and evidence presented before the decision was rendered.
In Samala, the last day for filing the notice of appeal fell on a Friday,
October 13, 1995. The person to whom the filing of the notice was
entrusted suffered stomach pains and was able to file it only on the next
business day which was October 16, a Monday. We held that the delay
was only for one day, as Saturday and Sunday were excluded and,
considering the facts of the case, found the delay to be excusable.
In the case of herein petitioners, the payment of the docket fees was
done nine days after the lapse of the period to appeal. In fact, in the
affidavit of merit of petitioners' counsel attached to the petition for relief,
he stated that on October 15, 2003, which was the last day to appeal, he
received a long distance call from petitioner Cornelia who confirmed their
desire to appeal the decision.However counsel, instead of immediately
paying the appeal fee, waited for nine days before doing so.
Petitioners also allege that subsequent and substantial compliance with
the rule may call for the relaxation of the rules of procedure, citing our
ruling in Jaro v. Court of Appeals.[34]
We are not persuaded.
In Jaro, the CA dismissed the petition filed before it for being defective,
as it was not in the form of a petition for review and the annexes thereto
attached were certified as true xerox copies by counsel, not by the proper
public official who had custody of the records. Petitioner subsequently
filed an amended petition in the proper form accompanied by annexes,
all of which were certified true copies by the Department of Agriculture
Regional Adjudication Board. This Court ruled that there was more than
substantial compliance, and the hard stance taken by the CA was
unjustified under the circumstances. Notably, petitioner therein
committed a lapse in the formal requirement which was curable by
amendment. In the present case, however, petitioners failed to pay the
appellate docket fees on time, which is jurisdictional and which divests
the trial court of jurisdiction to act on the appeal. The payment of the
appellate docket and other lawful fees is not a mere technicality of law
or procedure.[35] It is an essential requirement, without which the decision
or final order appealed from would become final and executory, as if no
appeal was filed at all.[36]
The failure of petitioners' counsel to perfect the appeal binds petitioners.
It is settled that clients are bound by the mistakes, negligence and
omission of their counsel.[37] While, exceptionally, the client may be
excused from the failure of counsel, the factual circumstances in the
Page 303
present case do not give us sufficient reason to suspend the rules of the
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
most mandatory character. Petitioners themselves may not be said to be
entirely faultless.
Atty. Ang, petitioners' counsel, claims that as soon as he received the
decision, he sent copies to petitioners. Records show that at that time,
while some of the petitioners were already abroad, Dominga and
Tomasa were still living in Cavite. Cornelia who lives abroad was able to
receive a copy of the decision and was able to make an overseas call to
Atty. Ang to express her desire to appeal the decision. However, neither
Dominga nor Tomasa who only live in Cavite, took steps to call Atty. Ang
at the earliest possible time to protect their interest. No prudent party
would leave the fate of his case completely to his lawyer.[38] It is the duty
of the client to be in touch with his counsel so as to be constantly posted
about the case.[39] Thus, we find that there was participatory negligence
on the part of petitioners, which would not relieve them of the
consequence of the negligence of their counsel.
The Court may deign to veer away from the general rule only if, in its
assessment, the appeal on its face appears absolutely
meritorious.[40] Indeed, the Court has, in a number of instances, relaxed
procedural rules in order to serve and achieve substantial
justice.[41] However, the instant case does not warrant the desired
relaxation.
Respondent has sufficiently shown that she was authorized in writing by
petitioners to sell the subject property; that respondent was instrumental
in bringing about the meeting of petitioner Olimpio and Tantiansu and
the transaction concerning the sale of subject property; and that it was
proven by evidence that the buyer of the subject property was
Tantiansu. Thus, respondent is entitled to the broker's commission as
agreed upon between her and the petitioners. Petitioners' claim that
Tantiansu had explicitly bound himself to pay the broker's commission
after the consummation of the sale would not relieve petitioners of their
liability to respondent since, as correctly held by RTC, whatever
Tantiansu and petitioners agreed relative to the payment of broker's
commission is binding only upon themselves and not binding on
respondent who does not appear to have consented thereto.
Thus, we find no grave abuse of discretion committed by the RTC in
denying petitioners' petition for relief, since they were not prevented from
filing their notice of appeal and payment of docket fees by mistake or
excusable negligence that would have deprived them of their day in
court. Such relief under Rule 38, Section 2 of the Rules of Court will not
be granted to a party who seeks to be relieved from the effects of the
judgment when the loss of the remedy of law was due to his own
negligence, or a mistaken mode of procedure for that matter; otherwise,
the petition for relief will be tantamount to reviving the right of appeal
which has already been lost, because of either inexcusable negligence
or counsels mistake in procedure.[42]
It bears stressing that appeal is not a right, but a mere statutory
privilege.[43] Corollary to this principle is that the appeal must be
exercised strictly in accordance with the provisions set by law.[44]
WHEREFORE, the petition for review is DENIED.
Cost against petitioners.
SO ORDERED.
SPS. ANTONIO and A.C. No. 4676
NORMA SORIANO,
Complainants, Present:
PANGANIBAN, C.J.
Chairperson,
YNARES-SANTIAGO,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, JJ.
Promulgated:
PINEDAPCGRNMAN
ATTY. REYNALDO P. May 4, 2006
REYES,
Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -x
DECISION
CHICO-NAZARIO, J.:
For alleged gross negligence in handling two civil cases, a
complaint[1] for disbarment was filed by complainant spouses Antonio
and Norma Soriano against Atty. Reynaldo P. Reyes.
Complainants alleged that sometime in the latter part of 1990, they
engaged the services of respondent in a case they filed against
Peninsula Development Bank entitled,Norton Resources and
Development Corporation, et al. v. Peninsula Development Bank. The
case was for Declaration of Nullity with Injunction and/or Restraining
Order before the Regional Trial Court (RTC) of Davao City, Br. 13,
docketed as Civil Case No. 20-465-90.[2] While the case was pending,
respondent reassured complainants that he was diligently attending to
the case and will inform them of the status of their case.
In 1994, complainants again engaged the services of respondent in a
case they filed against the Technology
and Livelihood Resource Center entitled, Spouses Antonio
M.Soriano and Norma Soriano v. Technology and Livelihood Resource
Center for Declaration of Nullity with Injunction and Temporary
Restraining Order before the RTC ofDavao City, Br. 16, docketed as Civil
Case No. 22-674-94.[3] During the pendency of the second case,
complainants inquired from respondent the status of the earlier Civil
Case No. 20-465-90, the latter informed them that the same was still
pending and/or ongoing.
Later, complainants learned that Civil Case No. 20-465-90 was
dismissed[4] on 16 December 1991 for failure of the respondent to file a
pre-trial brief. The dismissal reads:
On record is a pre-trial brief filed by defendant, thru counsel, Atty. Marlon
B. Llauder, and this morning a supplemental pre-trial brief was submitted
by defendants counsel. Atty. Reynaldo Reyes, counsel for the plaintiffs
is present in Court but he moved for a suspension of the pre-trial
conference this morning for the reason that plaintiffs are proposing to
amicably settle this case. Defendants counsel vehemently objected to
the postponement of the pre-trial conference and instead moved for a
declaration of plaintiffs as non-suited for the reason that up to this time,
plaintiffs have not submitted their pre-trial brief in violation of the Order
of the Court, dated October 11, 1991, wherein plaintiffs counsel was
afforded five (5) days from said date within which to submit to Court
plaintiffs pre-trial brief.
The said motion is well-taken for the reason that the records failed to
show that plaintiffs filed pre-trial brief. They are thus, declared as non-
suited.
This case is hereby ordered dismissed.[5] (Underscoring supplied.)
A motion[6] for reconsideration was filed but the same was denied in an
Order dated 27 April 1992.
As to Civil Case No. 22-674-94, complainants likewise found out that the
case was dismissed for failure to prosecute. The order reads:
Page 304
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
The records show that summons with a copy of the complaint have been
served upon the defendant on May 11, 1994, but plaintiffs did not file the
necessary pleadings in order to prosecute the same.
IN VIEW HEREOF, for failure to prosecute this case is ordered
DISMISSED.
Furnish copy of this order, Atty. Reynaldo P. Reyes, plaintiffs counsel
and defendants counsel, Atty. Francisco Figura.[7] (Underscoring
supplied.)
Upon filing of a Motion for Reconsideration, though, the case was
reconsidered and reinstated[8] on 15 August 1995.
Claiming that the acts of respondent greatly prejudiced and damaged
them, complainants filed a Complaint for disbarment against respondent
before this Court.
On 20 October 1997, the Supreme Court referred[9] the case to the
Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation or decision.
In his Comment,[10] respondent admitted that he was hired by the
complainants in the case against the Peninsula Development Bank in the
latter part of 1990. He averred that Peninsula Development Bank
foreclosed the property of the complainants for failure to pay monetary
obligations amounting to several millions of pesos. He said that some of
the properties of the complainants were foreclosed in 1989, and the one-
year redemption period was to expire in the latter part of 1990. About
one week before the expiration of the redemption period, the
complainants, through the respondent, filed a case against the Peninsula
Development Bank before the RTC of Davao City, which was docketed
as Civil Case No. 20-465-90. From the time of the filing of the complaint
up to the present, herein complainants are in continuous possession of
the already foreclosed properties, consisting of a Ford Econovan and
farm tractors. According to respondent, complainants are still holding
office in the real properties subject of the foreclosure and a portion
thereof is being rented by a big taxi company. He disclosed that at the
time he was hired in 1990, the agreement was that he would be paid the
amount of Three Hundred Thousand Pesos (P300,000.00) as attorneys
fees in five years. Respondent claimed that he assisted complainants in
applying for a loan to pay off their obligations with Peninsula
Development Bank but because of the numerous estafa cases filed
against complainants, said loans did not materialize. Respondent further
claimed that their agreed strategy was to arrange a settlement with
regard to Civil Case No. 20-465-90. Respondent said he later realized
that the complainants had no interest in paying their obligations to
Peninsula Development Bank, and his attorneys fees. Respondent
added that they differed in opinion with regard to the handling of the case
and that complainants did not understand that the filing of the case had
already helped them gain time to negotiate with the bank especially on
the matter of interest incurred by their loans. Finally, respondent
concluded by saying that his attorneys fees, paid in meager installments,
remain outstanding and unpaid.
In their reply,[11] complainants refuted respondents allegation of the
alleged numerous estafa cases filed against them. Complainants
averred that the certification attached by respondent showing that there
were estafa cases filed against them has no bearing insofar as the
disbarment case is concerned. They likewise denied that respondent
assisted them in their loan application. They engaged the services of the
respondent to prevent them from losing their properties to the Peninsula
Development Bank and for no other reason. Finally, complainants
maintained that respondent was paid his attorneys fees.
As early as 27 June 2000, the case had already been scheduled for
hearing by Commissioner Agustine V. Gonzaga of the Commission on
Bar Discipline. On 18 January 2002, after several hearings, the
PINEDAPCGRNMAN
Commission admitted the documentary evidence offered as part of the
testimony of complainants. On 1 March 2002, the day respondent was
ordered to present his defense evidence, he failed to appear. Counsel
for the complainants moved that the respondent be deemed to have
waived his right to present his evidence for failure to appear on
scheduled hearing despite due notice. In the interest of substantial
justice, respondent was given a period of 10 days to comment on the
complainants motion and scheduled the case for hearing on 19 April
2002. Despite due notice, however, respondent again failed to appear,
thus, the Hearing Commissioner declared that respondent was
considered to have waived his right to present his defense evidence. The
parties were given 20 days from 19 April 2002 to file their respective
memoranda, after which the case will be deemed submitted for
resolution.
Only complainants filed a memorandum.
On 28 May 2003, Investigating Commissioner Milagros V. San Juan
found respondent negligent in handling the cases of complainants;
hence, said Investigating Commissioner recommended that he be
disbarred. The pertinent portions of the report read:
There is no question that the respondent was engaged by the
complainants as their counsel in two cases, namely Civil Case No. 20-
465-90 and Civil Case No. 22-674-94. The respondent accepted both
cases by filing a case of Nullity with Injunction and/or Restraining Order
before the Regional Trial Court Br. 13, Davao City, against Peninsula
Development Bank and againstLivelihood Resource Center for
Declaration of Nullity with Injunction and/or Temporary Restraining Order
docketed as 22-674-94, Br. 16 RTC Davao City. The failure and
negligence of respondent in handling the aforementioned cases is fully
reflected in the Order of the Court re: Civil Case No. 20-465-90 which
reads:
On record is a pretrial brief filed by defendant thru counsel, Atty. Marlon
B. Llander and this morning a supplemental pretrial brief was submitted
by defendants counsel, Atty. Reynaldo Reyes, counsel for the plaintiff is
present in court but he moved for a suspension of the pretrial conference
this morning for the reason that plaintiffs are proposing to amicably settle
this case. Defendants counsel vehemently objected to the postponement
of the pretrial conference and instead moved for a declaration of plaintiffs
as nonsuited for the reason that up to this time, plaintiff have not
submitted their pretrial brief in violation of the Order of the Court, dated
October 11, 1991 wherein plaintiffs counsel was afforded five (5) days
time from date within which to submit to court plaintiffs pretrial brief.
The motion is well taken for the reason that the records failed to show
that plaintiffs filed pretrial brief. They are thus declared as nonsuited.
This case is hereby ordered dismissed. x x x Regarding Civil Case No.
22-674-94, Regional Trial Court Br. 16, Davao City in the case filed
against Technology and Livelihood Resource Center the court issued an
Order dated May 5, 1995 which reads:
The record show that summons with a copy of the Complaint have been
served upon the defendant on May 11, 1994, but plaintiffs did not file the
necessary pleadings in order to prosecute the same.
In view hereof, for failure to prosecute this case is ordered Dismissed.
x x x The records show that the real status of the cases were kept from
the complainants by respondent. Despite the dismissal of both cases due
to respondents negligence and irresponsibility he continued receiving
compensation from complainants are evidenced by the receipts and
vouchers which respondent acknowledged with his signatures. (Exhibits
Page 305
F, G, H, H-1 and I). Likewise, the respondent deceived the complainant
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
by giving them false hopes that everything was alright and there was no
problem regarding the cases.
All the foregoing show that there is clear violation of his oath as a lawyer
particularly Canon 17 and Canon 18 of the Code of Professional
Responsibility. Thus, it is submitted that Atty. Reynaldo P. Reyes be
meted the penalty of Disbarment.[12]
On 21 June 2003, the IBP Board of Governors adopted and
approved[13] the recommendation of the Investigating Commissioner.
In the interregnum, a Motion to Withdraw Testimony and
Evidence[14] was filed by complainant Norma B. Soriano before this
Court, stating that:
1. That although the complainant in this case names the
spouses Antonio Soriano and Norma B. Soriano as the complainants, it
is only complainant Norma B. Soriano who has testified and presented
evidence during the hearing of this case due to the untimely demise of
her husband, complainant Antonio Soriano;
2. That subsequently to the undersigned complainants
testimony and presentation of evidence, she has come upon information
and facts that need to be reviewed and re-examine[d] in the highest
interests of justice;
3. That before going into those information and facts that she
came to learn after she gave her testimony before this Honorable Board,
it is important to stress the following antecedent circumstances:
(a) That it was undersigned complainants late husband who
conferred constantly with respondent Atty. Reynaldo P. Reyes;
(b) That herein complainant was not present in a conference
with Atty. Reyes at the time his professional services were hired. So, it
was only the deceased complainant Antonio Soriano who was familiar
with the scope of professional engagement;
(c) That undersigned complainant did not participate in the
conference between her late husband and respondent counsel on the
agreed strategy because the late husband was the one actively
managing the affairs of the family. Moreover, herein complainant was not
really knowledgeable of the facts and details involved in the cases
handled by respondent counsel;
(d) That for example, it was only later after her testimony that
she learned that respondent was also attending to and handling the other
cases of the late complainant AntonioSoriano, especially those cases
filed in Makati, Complainant herein had the mistaken impression that the
complainant-decedent had availed of the services of lawyers inMakati.
Hence, the fees that respondent Atty. Reyes received after the cases
below were for those cases in Makati;
(e) That it was a surprise for herein undersigned complainant
to also learn that respondent Atty. Reyes went out of his way to
accompany her late husband to a financier, who was an intimate friend
of respondent, in Quezon City for the purpose (sic) sourcing the
necessary funds to pay off our obligations to some creditors as the
agreed strategy at the very start. Thus, it appears that respondent
counsel went out of his way to help the late complainant
Antonio Soriano solve his problems; and
(f) That I likewise subsequently learned that when respondent
counsel became a city councilor of Davao City, he did what he can to
PINEDAPCGRNMAN
help the late complainant AntonioSoriano have a council clearance over
a parcel of land that he was selling for a memorial park.
4. That the foregoing facts and information that herein
undersigned complainant learned after she gave her testimony seriously
prompts her to seek the withdrawal of her testimony and her evidence in
order that she can re-evaluate the same; and
5. That complainant herein is filing the instant motion in the
interests of truth and justice as it is farthest from her intention to have
this case resolved through an inadvertent presentation of facts that do
not exactly reflect the entirety of the story and the truth, no matter how
innocently and in good faith they were presented.[15]
The above quoted motion is tantamount to a withdrawal or desistance of
the complaint.
As we have previously ruled, the affidavit of withdrawal of the disbarment
case executed by a complainant does not automatically exonerate the
respondent.
A case of suspension or disbarment may proceed regardless of interest
or lack of interest of the complainant.[16] What matters is whether, on the
basis of the facts borne out by the record, the charge of negligence has
been duly proved. This rule is premised on the nature of disciplinary
proceedings. A proceeding for suspension or disbarment is not in any
sense a civil action where the complainant is a plaintiff and the
respondent lawyer is a defendant. Disciplinary proceedings involve no
private interest and afford no redress for private grievance. They are
undertaken and prosecuted solely for the public welfare. They are
undertaken for the purpose of preserving courts of justice from the official
ministration of persons unfit to practice in them. The attorney is called to
answer to the court for his conduct as an officer of the court. The
complainant or the person who called the attention of the court to the
attorneys alleged misconduct is in no sense a party, and has generally
no interest in the outcome except as all good citizens may have in the
proper administration of justice. Hence, if the evidence on record
warrants, the respondent may be suspended or disbarred despite the
desistance of complainant or his withdrawal of the
charges.[17] Accordingly, notwithstanding the motion to withdraw
evidence and testimony, the disbarment proceeding should proceed.
Looking into the merits of the complaint against respondent, we decide
to modify the findings of the IBP.
As to Civil Case No. 20-465-90, records show that it was dismissed for
failure of respondent to file the pre-trial brief.
Respondents failure to file the pre-trial brief constitutes inexcusable
negligence.[18] The importance of filing a pre-trial brief cannot be
gainsaid. For one, the lawyers are compelled to prepare their cases in
advance. They eliminate haphazard preparation. Since pre-trial is a
serious business of the court, preparation of the lawyers and parties for
the pre-trial in both questions of fact and of law cannot be
overemphasized as an essential requirement for a pre-trial conference.
They enable both parties to view the documentary evidence of the other
even before they are presented in court. They enable the parties to know
the testimonies of each others witnesses. Pre-trial briefs also apprise the
courts of the additional points the parties are willing to stipulate upon, or
the additional points which could be inquired into for the purpose of
additional stipulations. They also apprise the court of the respective
demands of the parties, thus, enabling the court to discuss more
intelligently an amicable settlement between or among the
Page 306
parties.[19] The failure to submit a pre-trial brief could very well, then, be
fatal to the case of the client as in fact it is a ground for dismissal of the
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
case. [20] For this reason, respondents failure to submit the pre-trial brief
to the court within the given period constitutes negligence which entails
disciplinary action. Not only is it a dereliction of duty to his client but to
the court as well. Hence, this Court, in Spouses Galen v.
Atty. Paguirigan,[21] explained:
An attorney is bound to protect his clients interest to the best of his ability
and with utmost diligence. A failure to file brief for his client certainly
constitutes inexcusable negligence on his part. The respondent has
indeed committed a serious lapse in the duty owed by him to his client
as well as to the Court not to delay litigation and to aid in the speedy
administration of justice.
In this case, respondent did not only fail to file the pre-trial brief within
the given period. Worse, he had not submitted the required pre-trial brief
even at the time he filed a motion for reconsideration of the order of
dismissal several months later. Expectedly, the motion for
reconsideration was denied by the court. Respondents negligence is
apparent in the trial courts denial of the motion for reconsideration, to wit:
The court, in the exercise of sound discretion, afforded the plaintiffs who
were then present, five (5) days from October 11, 1991, within which to
submit to the Court plaintiff pre-trial brief, but despite the order, and until
December 16, 1991, a period of more than two (2) months has elapsed,
yet herein plaintiffs still failed to file or submit the required pre-trial brief,
which to the mind of this Court, is an obstinate refusal on the part of the
plaintiffs to file said pre-trial brief, despite counsels knowledge of the
importance of the same.
The plaintiffs, even in the filing of their Motion for reconsideration did not
even care to attach pre-trial brief if indeed they are sincere in their
intention to do so.
Clearly, respondent was not able to protect his clients interest through
his own fault.
A lawyer is expected to be familiar with the rudiments of law and
procedure and anyone who acquires his service is entitled to, not just
competent service, but also whole-hearted devotion to his
clients cause. It is the duty of a lawyer to serve his client with
competence and diligence and he should exert his best efforts to protect,
within the bounds of law, the interest of his client. A lawyer should never
neglect a legal matter entrusted to him, otherwise his negligence in
fulfilling his duty will render him liable for disciplinary action.[22]
Canon 18, Rule 18.03 of the Code of Professional Responsibility
provides that a lawyer shall not neglect a legal matter entrusted to him
and his negligence in connection therewith shall render him liable. In this
case, by reason of Atty. Reyess negligence, complainant suffered actual
loss. He should have given adequate attention, care and time to his
cases. This is why a practicing lawyer may accept only so many cases
that he can efficiently handle. Otherwise, his clients will be
prejudiced. Once he agrees to handle a case, he should undertake the
task with dedication and care. If he should do any less, then he is not
true to his lawyers oath.[23]
Respondents excuse that complainants, from the time of filing of the
complaint up to the time of filing his comment, were in continuous
possession of the foreclosed property is flimsy. It only shows the cavalier
attitude which respondent took towards his clients cause.
Anent Civil Case No. 22-624-94, the case was indeed dismissed for
failure to prosecute although the said dismissal was later on
reconsidered. However, this does not detract to the conclusion that, truly,
respondent failed to demonstrate the required diligence in handling the
case of complainants.[24]
PINEDAPCGRNMAN
Quite apart from the above, respondent also lacked candor in dealing
with his clients as he omitted to apprise complainants of the status of the
two cases and even assured the complainants that he was diligently
attending to said cases.[25]
In Garcia v. Atty. Manuel,[26] this Court found therein respondent lawyer
in bad faith for failing to inform his client of the status of the case. In said
decision, the court has adamantly stressed that the lawyer-client
relationship is highly fiduciary.[27] There is always a need for the client to
receive from the lawyer periodic and full updates on developments
affecting the case. The lawyer should apprise the client on the mode and
manner that the lawyer is utilizing to defend the clients interests.[28]
In failing to inform his clients of the status of their cases, respondent
failed to exercise such skill, care, and diligence as men of the legal
profession commonly possess and exercise in such manners of
professional employment.[29]
Time and again we have stated that disbarment is the most severe form
of disciplinary sanction, and, as such, the power to disbar must always
be exercised with great caution for only the most imperative reasons and
in clear cases of misconduct affecting the standing and moral character
of the lawyer as an officer of the court and a member of the
bar. Accordingly, disbarment should not be decreed where any
punishment less severe such as a reprimand, suspension, or fine would
accomplish the end desired.[30]
The appropriate penalty on an errant lawyer depends on the exercise of
sound judicial discretion based on the surrounding facts. The penalties
for a lawyers failure to file the required brief or pleading range from
reprimand, warning with fine, suspension and in grave cases,
disbarment. In one case,[31] the penalty for a lawyers failure to file a pre-
trial brief and other pleadings such as position papers leading to the
dismissal of the case, is suspension of six months. Therefore, we find
the penalty of disbarment as recommended by the IBP to be unduly
harsh and we deem it appropriate to impose the penalty of one (1) year
suspension, taking into account that this appears to be his first offense.
WHEREFORE, in view of the foregoing, respondent Atty. Reynaldo
Reyes is found GUILTY of violating Canons 17 and 18 of the
Code of Professional Responsibility and is SUSPENDED from the
practice of law for one (1) year effective upon finality hereof with
WARNING that a repetition of the same negligent act charged in this
complaint will be dealt with more severely.
Let copies of this Decision be furnished the Office of the Bar
Confidant, to be appended to respondents personal records as
attorney; the
Page 307
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Integrated Bar of the Philippines; and all courts of the country for their
information and guidance.
SO ORDERED.
OFELIA R. SOMOSOT, A.C. No. 7024
Complainant,
Present:
QUISUMBING, J., Chairperson,
CORONA,*
- versus - CARPIO MORALES,
TINGA, and
BRION, JJ.
ATTY. GERARDO F. LARA, Promulgated:
Respondent.
January 30, 2009
x---------------------------------------------------------------------------------------
-x
DECISION
BRION, J.:
Once again, we are faced in this complaint for disbarment with the
problem of a client-lawyer relationship developing into a legal action
between the lawyer and the client.[1] The complaining client is Ofelia R.
Somosot (complainant), a defendant in a collection case before the trial
court; her defense was handled by Atty. Gerardo F. Lara (respondent).[2]
The Factual Background
In support of her complaint for disbarment, the complainant alleged that
she retained the services of the respondent as her counsel in Civil Case
No. Q01-43544, entitledGolden Collection Marketing Corporation v.
Ofelia Somosot, et al., filed against her and her co-defendants for the
collection of a sum of money amounting to P1.3 Million. Her defense was
that it was the plaintiff who actually owed her P800,000.00. She claimed
that she had the evidence to prove this defense at the trial. The
respondent agreed to handle the case and duly entered his appearance
as counsel after securing his acceptance fee.
The complainant expected the respondent to perform his duty as counsel
and to defend her interests to the utmost. She alleged, however, that
after filing the Answer to the Complaint, the respondent failed to fully
inform her of further developments in the case. She only heard about the
case when there was already a decision against her and her co-
defendants. She even belatedly learned that the respondent had sought
his discharge as counsel without her knowledge and consent. Contrary
to the respondent's claim that he could no longer locate her, she claimed
that the respondent knew all along where she lived and could have easily
contacted her had he been in good faith.
After the court denied the respondent's motion to withdraw from the case,
the complainant claimed that the respondent represented her interests
in a half-hearted manner, resulting in the grant of the plaintiff's motion for
judgment on the pleadings. Allegedly, the respondent failed to properly
oppose the motion and she was thereafter deprived of the chance to
present her evidence. Execution of the courts decision followed, resulting
in the sale of her house and lot at public auction despite her efforts to
reverse the judgment with the help of another lawyer. Thereafter, a third
party to whom her property had been mortgaged sued her.
PINEDAPCGRNMAN
The complainant bewailed the respondent's evasive attitude when she
confronted him about her problem with his representation. She found the
respondents excuse that he could not contact her because she had
changed her office address to be unsatisfactory. She accused the
respondent of miserably failing to comply with his oath as a lawyer and
to discharge his duty of ably representing her.
In his comment,[3] the respondent denied that he failed to exercise the
diligence required of him as counsel in Civil Case No. Q01-43544. He
argued that pursuant to his oath as counsel, he pursued the
complainant's case according to his own ability and knowledge. He
alleged that:[4]
1. He filed the complainant's Answer with Counterclaim on July 16,
2001. He presented all the complainants defenses and claims, but the
plaintiff, Golden Collection Marketing Corporation, filed for
interrogatories and request for admission. He filed an objection to the
plaintiff's motion on the ground that the interrogatories and request for
admission are, by law, properly addressed to the complainant herself
and not to him as counsel.
2. He filed a reply to the plaintiff's comment (on his objection) and the
case proceeded despite the complainants failure to pay his billing
from May 3, 2001 to August 2, 2001 amounting to P27,000.00
3. On November 1, 2001, he joined the government service as
consultant in the Board of Investments and full-time counsel to BOI Gov.
J. Antonio Leviste. He tried to inform the complainant of his appointment
and to collect his billings at her office in Greenhills, but the office was
locked. A security guard told him that the complainant had moved
without leaving any forwarding address. He even tried to contact
complainant and her husband's cellular phones, to no avail.
4. Desperate, he filed a notice of withdrawal of appearance with the
explanation that the conformity of the complainant could not be obtained
since the complainant's corporation had moved its office without
informing him of its new location, and the complainant had not been
communicating with him.[5] He later learned that the complainant had
moved to Pasig City.
5. In late December 2001, he was able to talk with the complainant by
phone and he informed her that he could no longer handle cases for the
complainant's company, thereby terminating his relationship with
complainant. He advised the complainant to look for another lawyer; the
complainant replied that she already had another lawyer.
6. Despite his situation and aware that the court had denied his motion
to withdraw from the case, the respondent continued rendering legal
services as the complainant's counsel. He filed a motion for
reconsideration of the Court's decision dated June 3, 2002. He likewise
filed an urgent opposition to the winning partys motion for execution.
7. On September 2, 2005, he received a letter from the complainant
giving him one final opportunity to convince me, why she should not
pursue disbarment proceedings.He promptly prepared a reply which,
upon her suggestion, he delivered at the complainant's residence.
8. He thought that he had given the complainant a satisfactory
explanation only to learn later that she filed a complaint for disbarment
against him.
9. The respondent expressed his regret for what happened to the
case, but stressed that he did not abandon the complainant and the
Page 308
cases he had been handling for her company. He did not likewise neglect
to perform his duties as counsel. On the insinuation that he may have
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
been bought, he emphasized he that cannot and will never abandon a
client as a Christian lawyer and a family man.
In a Resolution dated July 17, 2006, the Court referred the case to the
Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation. The complainant filed a Position Paper (dated January
12, 2007) before the IBP Commission on Bar Discipline through her
counsel Honorato V. Reyes, Jr.[6] She reiterated in this position paper the
allegations in her complaint. She could not understand how a simple
collection case against her where she felt she had a good defense and
which she expected to go through a full-blown litigation could be lost
virtually through a mere technicality, i.e., through a judgment on the
pleadings for her failure to answer the plaintiffs interrogatories and
request for admission. She insisted she had not been informed by the
respondent of the plaintiff's motion for written interrogatories and request
for admission. Had he informed her, she could have responded.
The complainant was even more surprised to learn that the respondent
tried to withdraw from the case because she (the complainant) could not
be contacted. She maintained that she had never transferred her
residence where she could be reached had the respondent exerted a
meaningful effort to contact her. She claimed that the respondent was
able to do so later when he was collecting the balance of his legal
fees. She denied that she had not paid respondent his retainer fees.
The complainant stressed that the respondent violated his oath as a
lawyer by mishandling her case, resulting in the loss of her house and
lot and other damages.
The respondents Position Paper (dated January 3, 2007) essentially
reflected the arguments presented in his Comment before this
Court.[7] He clarified that the complainant did not incur extra expenses in
defending herself in the collection case since its handling was part of the
services covered by his retainer. He insisted that he vigorously pursued
the case and defended the complainant to the utmost despite the
complainants unpaid billings of P27,000.00.
The respondent contended that he had good reasons not to continue as
the complainant's counsel. He reasoned out that under the Code of
Professional Responsibility, a lawyer may withdraw from a case upon a
good cause such as when the client deliberately fails to pay the fees for
the lawyers services, or fails to comply with the terms of the retainer
agreement, or when the lawyer is elected or appointed to public
office.[8] Two of these possible causes applied to his situation; he was
appointed legal consultant at the BOI requiring full-time work and the
complainant had failed to pay his legal fees to him amounting
to P27,000.00. He filed the formal notice of withdrawal without the
conformity of the complainant because he could not locate her.
The respondent insinuated that that the complainant's real intent was
merely to harass him and his family as indicated by her non-appearance,
despite due notice, at the preliminary conference before the IBP. He
argued that he could not be disbarred considering that it was the
complainant who was negligent in informing him of her
whereabouts.While he expressed regret for what happened in the case,
he insisted that he exerted every effort to locate her, filed the necessary
pleadings, protected her and her company's interest as best as he could.
The IBP Recommendation
In a letter to the Chief Justice dated January 28, 2007, the IBP Board of
Governors, through the IBP Commission on Bar Discipline, transmitted
to the Court a Notice of Resolution[9] and the records of the case. The
resolution was for the adoption and approval of the Report and
Recommendation of Commissioner Rico A. Limpingco who had
investigated the case. [10]
PINEDAPCGRNMAN
Commissioner Limpingco recommended that respondent be
reprimanded for lack of reasonable diligence in representing the
complainant.
His recommendation was based on the following evaluation:
It appears that the respondent was to some degree, remiss in fulfilling
his duties to complainant Somosot. While it may be true that he had filed
an answer in Civil Case No. Q01-43544, objected to the plaintiff's
interrogatories and requests for admission, asked for reconsideration of
the decision rendered by the court and opposed the adverse party's
efforts to have the same executed, it can nevertheless be seen that the
remedial measures taken by the respondent were inadequate, especially
in view of the direction which the proceedings were taking.
The respondent is not incorrect in saying that a lawyer may be relieved
of his duties even without the conformity of his client when he lost all
contact with the latter, and the complainant's failure to settle his unpaid
fees is not received without sympathy. The fact remains,however, that
the respondent's efforts to be discharged as counsel were disallowed by
the court, under the circumstances, he was bound by his oath to
represent complainant Somosot and to advocate her cause to the best
of his ability.
The respondent claims that in late December 2001, he was finally able
to talk to complainant Somosot and was told that she already had
another lawyer by the name of Atty. Tomas Dulay.Considering his stated
desire to withdraw from the case and his own declaration that he had
again come into the means of contacting the complainant, it is thus
entirely puzzling why he did not at this point, revive his efforts to be
relieved of his responsibilities in Civil Case No. Q02-43544 given
complainant Somosot's alleged engagement of Atty. Tomas Dulay and
her presumed willingness to give her consent to such discharge. As it is,
respondent Atty. Lara remained as counsel of record and for some
undisclosed reason did not appeal the decision against his client.
This is not to say that the client is entirely without fault. While complainant
Ofelia Somosot's narrative is in many respects at odds with that of the
respondent, it is nevertheless clear from her submissions that she never
made any effort to contact the respondent to follow up the status of the
case, but instead expected the latter to take complete initiative in this
regard.
It has been held that it is the duty of a party-litigant to remain in contact
with his lawyer in order to be informed of the progress of his case. True
enough, the party-litigant should not rely totally on his counsel to litigate
his case even if the latter expressly assures that the former's presence
in court will no longer be needed. No prudent party will leave the fate of
his case entirely to his lawyer. Absence in one or two hearings may be
negligible but want of inquiry or update on the status of his case for
several months (four, in this case) is inexcusable. It is the duty of a party-
litigant to be in contact with his counsel from time to time in order to be
informed of the progress of his case. Thus the complainant did not do,
and such circumstance can only mitigate in respondent's favor.
The Court's Ruling
As the IBP did, we find that the respondent deserves to be sanctioned
for having fallen short of the standards required of him as defense
counsel in Civil Case No. Q01-43544. He violated the basic rule,
expressed under Canon 18 of the Code of Professional
Responsibility,[11] that a lawyer shall serve his client with competence
and diligence.[12]
While it may be said that the respondent did not completely abandon the
case, his handing of the complainants defense left much to be desired.
The records show that the plaintiff in the collection case filed
Page 309
interrogatories and a request for admission. The respondent duly filed
his objection to the plaintiffs move, but the court apparently allowed the
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
interrogatories and request for admission and directed the complainant
(as the defendant in the civil case) to respond. The complainant was
never informed of this development and the omission eventually led to
the grant of the plaintiffs motion for judgment on the pleadings, which in
turn led to the decision against the defendants.[13]
In his submissions before this Court and before the IBP, the respondent
alleged that he objected to the interrogatories and request for admission
and did all he could, even filing a reply to the defendants comment to his
objection. He likewise alleged that from May 3, 2001 to August 2, 2001,
the complainant had not paid the billings sent to her; that the complainant
could not be contacted because she had closed her office without any
forwarding address;[14] that as of November 1, 2001, he had been
appointed as a consultant in the office of BOI Governor J. Antonio
Leviste; and that he continued to represent the complainant even after
the trial courts decision by filing a motion for reconsideration and
opposing the plaintiffs motion for execution.[15]
After examining the whole record of the case, we find the respondent's
positions to be very revealing with respect to what they say and do not
say.
First, the respondent failed to precisely allege in his submissions how he
tried to contact the defendant on or about the time the interrogatories
and request for admission were pending. It appears that he really had
not; by his own admission, his attempt to contact the complainant
came in December 2001 and only to inform her of his government
appointment and to collect his billings. It was only after the discovery of
the closure of the defendants office did the respondent try to contact the
complainant and her husband by cellular phone, but they could not be
reached.
Second. The interrogatories/admission issue happened in August 2001,
which tells us that the respondent at about that time was already very
sensitive about his billing issue against his client as he had not been paid
from May to August 2001. Assuming the non-payment to be true, such
failure should not be a reason not to inform the client of an important
development, or worse, to withhold vital information from her. As the
court held in Luisito Balatbat v. Atty. Edgardo Arias,[16] a client must
never be left in the dark for to do so would destroy the trust, faith and
confidence reposed in the retained lawyer in particular and the legal
profession in general.
Third. The respondent failed to provide details on the developments that
led to the adverse rulings on the interrogatories/admissions and the
judgment on the pleadings. We gather under Annex G of the
respondents Comment filed with this Court that the trial court ruled in
open court on March 8, 2002 that a judgment on the pleadings was
appropriate. This was confirmed by an Order of the same date (attached
as Annex B to the complainants Position Paper before the IBP) which
partly states;
The Court NOTES the manifestation of Atty. Honorato M. Guttierez,
counsel for the plaintiff that the defendants have not been appearing
in the case for one (1) year as perDecember 14, 2001 Order of this
Court. The Court even denied the Notice of Withdrawal of Appearance
of Atty. Lara, counsel for the defendants, with the end purpose of
obviating the further delays of the proceedings of this case. Moreover, in
the said Order, this Court ruled that the Rule on judgment on the
pleading under Rule 34 of the Rules of Court will now obtain.
The respondent never bothered to explain this court order whose
highlighted portions give hints on the reasons for the adverse
developments for the defendants. While the records do not explicitly
state what remedies the respondent took to react to the Order and to the
trial court ruling on the interrogatories/admission issue, we feel it safe to
assume that the respondent did not move at all to question the trial courts
rulings; nowhere in the records, both from the complainants and the
PINEDAPCGRNMAN
respondents end, is there any allegation that the respondent sought to
review the trial courts rulings. What intrigues us is that the respondent
could have reacted to the trial court's ruling on the interrogatories/request
for admission; he was aware of the recourses open to him under the
ruling in Briboneria v. Court of Appeals, G.R. 101682, December 4,
1992, that he cited in his objection to the interrogatories and request for
admission.
Fourth, on the matter of the respondents withdrawal from the case, the
respondent might have had valid reasons to withdraw and terminate his
relationship with his client. As the respondent now states, he could
withdraw under paragraphs (e) and (f) of the Code of Professional
Responsibility[17] - i.e., deliberate failure of the client to pay the fees for
the services, or failure to comply with the retainer agreement, or
appointment or election to public office. However, he does not appear to
have cited these reasons before the trial court. Instead, he merely filed
a Notice of Withdrawal of Appearance, citing his clients unknown
location and failure to communicate as reasons for his clients lack of
express consent to his withdrawal.[18] It is undisputed that the trial court
denied the respondent's notice of withdrawal; thus, he remained as
counsel of record burdened with all the responsibilities that his
representation carried.
By his own admission, the respondent succeeded in contacting the
complainant in late December, 2001, i.e., soon after he filed his notice of
withdrawal with the trial court. As Commissioner Limpingco observed, it
was quite puzzling that he did not then revive his efforts to be relieved of
his responsibilities in the case, given the complainant's reported
engagement of a new counsel. He could have then secured his clients
consent to his withdrawal but did not.
Fifth. As Commissioner Limpingco did, we wonder why the respondent
did not appeal the decision against his client. It even appears from one
of the annexes (Annex I of the respondents comment) that he did not
immediately inform the complainant of the decision against her. To quote
the complainants letter (Annex I):
However, for reasons you have not fully explained, you virtually
abandoned the case and interest therein after having initially filed an
answer in my behalf.
You never informed me of any further developments in the case. As a
result, I lost the said case by reason of default and technicality.
You never informed me of this loss, thus denying me the
opportunity to appeal the adverse decision. . .
The respondent never bothered to refuse this very damaging
allegation; neither in his Position Paper before the IBP nor in the
Comment filed with us did he offer an explanation.Thus, it appears that
the respondent could not have really taken any instructions from his
client on how to handle the trial courts adverse decision. He simply took
it upon himself to decide not to appeal the trial courts decision and the
denial of his motion for reconsideration.
While the respondent expressed regret for the reverses the complainant
suffered, regret is a belated response that will not bring back the
complainants lost case. It cannot erase the fact that he mishandled the
complainants defense. By the exacting standards of the legal profession,
he has been weighed and found wanting.
What lightens the impact of the respondents mishandling of the case is
the complainants own failings as a client. The non-payment of fees is a
factor that we cannot simply disregard. As a rule, law practice is not a pro
bono proposition and a lawyers sensitivity and concern for unpaid fees
are understandable; lawyers incur expenses in running their practice and
Page 310
generally depend, too, on their law practice income for their living
expenses. Likewise, the respondents appointment as a consultant
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
should be considered although it is a matter that none of the parties have
fully examined. Both the non-payment of fees and the appoint to a public
office, however, were not reasons properly presented before the trial
court through a motion that informed the court of all the surrounding
circumstances of the desired withdrawal. Instead, another reason was
given by way of a mere notice lacking the clients express consent. Thus,
the courts denial of the desired withdrawal was not totally unexpected.
More than these reasons and as Commissioner Limpingco correctly
noted, the complainant never made any effort to contact the respondent
to follow up the status of her case, expecting instead the respondent to
take full and complete initiative in this regard. While the respondent, as
counsel, has the obligation to inform his client of the material
developments in the case, particularly of the aspects of the case that
would require the clients instructions or participation, this obligation is
balanced by a complementary duty on the part of a party-litigant to
remain in contact with his lawyer in order to be informed of the progress
of the case.
The complainants failing in this regard is her failure to inform her counsel
of her change of business address, a serious lapse but one that a
resourceful counsel could have easily handled. In a balancing, the
greater fault still lies with the respondent as he did not appear, based on
the records of the case, to be a lawyer whose practice routine included
regular reporting to clients on matters other than billings. We note that
he did not bother to report (or even allege that he bothered to report) on
the interrogatories and request for admission incidents that can make or
break a case as it did break the defendants case before the trial
court. Despite knowledge of his clients location gained in late December
2001, he did not likewise bother to inform the complainant of the adverse
decision against her in June 2002, taking it upon himself to simply file a
motion for reconsideration and to accept the courts ruling when his
motion was denied. In our view, these are law practice mortal sins that
we cannot allow to simply be glossed over or be penalized by a simple
reprimand.
However, we cannot also disbar the respondent as the complainant
demands in light of the complainants own contributory faults. Disbarment
is an ultimate remedy in the professional world, no less serious and
weighty as the power to impose reclusion perpetua in criminal cases; in
both, recovery from the penalty although not totally impossible is
extremely difficult to attain. Thus, we must at all times act with caution
and due consideration, taking into account not only the interests of the
immediate parties, but the interest of the public, the bar and the
administration of justice as well.
The general public must know that the legal profession is a closely
regulated profession where transgressions merit swift but commensurate
penalties; it is a profession that they can trust because we guard our
ranks and our standards well. The Bar must sit up and take notice of
what happened in this case to be able to guard against any repetition of
the respondents transgressions, particularly his failure to report the
developments of an ongoing case to his clients. Unless the Bar takes a
pro-active stance, we cannot really blame members of the public who
are not very well disposed towards, and who may even distrust, the legal
profession after hearing experiences similar to what the complainant
suffered. The administration of justice is served well when we
demonstrate that effective remedies exist to address the injustice and
inequities that may result from transgressions by those acting in the
dispensation of justice process.
In these lights, we hold that while the respondent is liable for a clear case
of misconduct that seriously affects his standing and character as an
officer of the Court and as a member of the Bar, this liability ought to be
tempered by the mitigating circumstances we pointed out above. We
therefore cannot impose disbarment as penalty. Given the mitigating
PINEDAPCGRNMAN
circumstances and the extent of their effects on the respondents
culpability, we hold that a three-month suspension from the practice of
law is the penalty that is more in keeping with the damage the
complainant suffered and the interests that the public, the bar and the
administration of justice have to protect.
WHEREFORE, premises considered, respondent ATTY. GERARDO F.
LARA is hereby SUSPENDED from the practice of law for a period of
three (3) months, effective upon receipt of a copy of this Decision.
SO ORDERED.
CANON 19 A lawyer shall represent his client with zeal within the
bounds of the law.
SAMBAJON et al vs Atty Suing (SUPRA)
Rule 19.01 A lawyer shall employ only fair and honest means to
attain the lawful objectives of his client and shall not present,
participate in presenting or threaten to present unfounded criminal
charges to obtain an improper advantage in any case or
proceeding.
ROC RULE 138 sec 20 (d) To employ, for the purpose of maintaining
the causes confided to him, such means only as are consistent with
truth and honor, and never seek to mislead the judge or any judicial
officer by an artifice or false statement of fact or law;
FERNANDO MARTIN O. PENA, A.C. No. 7298
Complainant, [Formerly CBD Case No. 05-1565]
Present:
- versus - QUISUMBING, J.,
Chairperson,
CARPIO,
CARPIO MORALES,
TINGA, and
ATTY. LOLITO G. APARICIO, VELASCO, JR., JJ.
Respondent.
Promulgated:
June 25, 2007
x----------------------------------------------------------------------------x
RESOLUTION
TINGA, J.:
In this administrative complaint, a lawyer is charged with violation of Rule
19.01 of Canon 19 of the Code of Professional Responsibility for writing
a demand letter the contents of which threatened complainant with the
filing of criminal cases for tax evasion and falsification of documents.
Atty. Lolito G. Aparicio (respondent) appeared as legal counsel for Grace
C. Hufana in an illegal dismissal case before the National Labor
Relations Commission (NLRC). Sometime in August 2005, complainant
Fernando Martin O. Pena, as President of MOF Company, Inc. (Subic),
received a notice from the Conciliation and Mediation Center of the
NLRC for a mediation/conciliation conference. In the conference,
Page 311
respondent, in behalf of his client, submitted a claim for separation pay
arising from her alleged illegal dismissal. Complainant rejected the claim
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
as being baseless. Complainant thereafter sent notices to Hufana for the
latter to explain her absences and to return to work. In reply to this return
to work notice, respondent wrote a letter to complainant reiterating his
clients claim for separation pay. The letter also contained the following
threat to the company:
BUT if these are not paid on August 10, 2005, we will be constrained to
file and claim bigger amounts including moral damages to the tune of
millions under established precedence of cases and laws. In addition to
other multiple charges like:
1. Tax evasion by the millions of pesos of income not reported to the
government.
2. Criminal Charges for Tax Evasion
3. Criminal Charges for Falsification of Documents
4. Cancellation of business license to operate due to violations of
laws.
These are reserved for future actions in case of failure to pay the above
amounts as settlements in the National Labor Relations Commission
(NLRC).[1]
Believing that the contents of the letter deviated from accepted ethical
standards, complainant filed an administrative complaint[2] with the
Commission on Bar Discipline of the Integrated Bar of the Philippines
(IBP). Respondent filed an Answer with Impleader (Motion to Dismiss
and Counterclaims)[3] claiming that Atty. Emmanuel A. Jocson,
complainants legal counsel, also played an important part in imputing the
malicious, defamatory, and fabricated charges against him. Respondent
also pointed out that the complaint had no certification against forum
shopping and was motivated only to confuse the issues then pending
before the Labor Arbiter. By way of counterclaim, respondent asked for
damages and for the disbarment of Atty. Jocson. Respondent also asked
the IBP to endorse the prosecution of Atty. Jocson for Usurpation of
Public Functions[4] and for violation of the Notarial Law.[5]
A mandatory conference was held on 6 December 2005 but respondent
failed to appear.[6] Both parties were thereafter required to submit their
position papers.
The Report and Recommendation[7] of Investigating Commissioner
Milagros V. San Juan found that complainant, failed to file his position
paper and to comply with Administrative Circular No. 04-94 requiring a
certificate against forum shopping and, accordingly, recommended the
dismissal of the complaint against respondent. On 26 May 2006, the IBP
Board of Governors adopted and approved the Report and
Recommendation of the Investigating Commissioner.[8] On 10 July 2006,
the IBP Commission on Bar Discipline transmitted to the Supreme Court
the notice of said Resolution and the records of the case.[9] Thereafter,
on 18 August 2006, respondent filed with the IBP a Motion for
Reconsideration (for Modification of Decision)[10] reiterating his claim of
damages against complainant in the amount of four hundred million
pesos (P400,000,000.00), or its equivalent in dollars, for filing the false,
malicious, defamers [sic], fraudulent, illegal fabricators [sic],
malevolent[,] oppressive, evasive filing [of] a groundless and false suit.[11]
Complainant thereafter filed this Petition for Review (of the Resolution of
the IBP Commission on Bar Discipline)[12] alleging that he personally
submitted and filed with the IBP his position paper, after serving a copy
thereof on respondent by registered mail. He further alleges that he was
deprived of his right to due process when the IBP dismissed his
complaint without considering his position paper and without ruling on
the merits thereof.
PINEDAPCGRNMAN
Complainant accordingly prays for the reversal and setting aside of the
26 May 2006 Resolution[13] of the IBP Board of Governors and the
remand of the case to the IBP Commission on Bar Discipline for proper
adjudication and disposition on the merits.
Based on the records, there is truth to complainants assertion that he
filed his position paper on 21 December 2005, after serving a copy of the
same to respondent. The IBP stamp on the front page of said document
shows that it was received by the IBP on 21 December 2005. The
registry receipt attached to the same document also shows that it was
sent by registered mail to respondent on the same date. [14]
Complainant, however, omitted to offer any explanation in his petition
before this Court for his failure to attach a certification against forum
shopping in his complaint against respondent.
The requirement of a certification against forum shopping was originally
required by Circular No. 28-91, dated 8 February 1994, issued by this
Court for every petition filed with the Court or the Court of
Appeals. Administrative Circular No. 04-94, made effective on 1 April
1994, expanded the certification requirement to include cases filed in
courts and quasi-judicial agencies below this Court and the Court of
Appeals. Ultimately, the Court adopted paragraphs (1) and (2) of
Administrative Circular No. 04-94 tobecome Section 5, Rule 7 of the
1997 Rules of Civil Procedure.[15] Said rule states that a violation thereof
would constitute contempt of court and be cause for the summary
dismissal of both petitions without prejudice to the taking of appropriate
action against the counsel of the party concerned.[16]
The Investigating Commissioner and the IBP Board of Governors took
against complainant his failure to attach the certification against forum
shopping to his complaint and consequently dismissed his complaint.
This Court, however, disagrees and, accordingly, grants the petition.
However, a remand of the case to the IBP would unduly prolong its
adjudication.
The Courts determination is anchored on the sui generis nature of
disbarment proceedings, the reasons for the certification against forum
shopping requirement, complainants subsequent compliance with the
requirement, and the merit of complainants complaint against
respondent.
The Court, in the case of In re Almacen,[17] dwelt on
the sui generis character of disciplinary proceedings against lawyers,
thus:
Disciplinary proceedings against lawyers are sui generis. Neither purely
civil nor purely criminal, they do not involve a trial of an action or a suit,
but is rather an investigation by the Court into the conduct of one of its
officers. Not being intended to inflict punishment, it is in no sense a
criminal prosecution. Accordingly, there is neither a plaintiff nor a
prosecutor therein. It may be initiated by the Court motu proprio. Public
interest is its primary objective, and the real question for determination
is whether or not the attorney is still a fit person to be allowed the
privileges as such. Hence, in the exercise of its disciplinary powers, the
Court merely calls upon a member of the Bar to account for his
actuations as an officer of the Court with the end in view of preserving
the purity of the legal profession and the proper and honest
administration of justice by purging the profession of members who by
their misconduct have proved themselves no longer worthy to be
entrusted with the duties and responsibilities pertaining to the office of
an attorney. In such posture, there can thus be no occasion to speak of
a complainant or a prosecutor.[18] [Emphasis supplied]
Page 312
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
In view of the nature of disbarment proceedings, the certification against
forum shopping to be attached to the complaint, if one is required at all
in such proceedings, must refer to another administrative case for
disciplinary proceedings against the same respondent, because such
other proceedings or action is one that necessarily involves the same
issues as the one posed in the disbarment complaint to which the
certification is supposedly to be attached.
Further, the rationale for the requirement of a certification against forum
shopping is to apprise the Court of the pendency of another action or
claim involving the same issues in another court, tribunal or quasi-judicial
agency, and thereby precisely avoid the forum shopping situation. Filing
multiple petitions or complaints constitutes abuse of court
processes,[19] which tends to degrade the administration of justice,
wreaks havoc upon orderly judicial procedure, and adds to the
congestion of the heavily burdened dockets of the
courts.[20] Furthermore, the rule proscribing forum shopping seeks to
promote candor and transparency among lawyers and their clients in the
pursuit of their cases before the courts to promote the orderly
administration of justice, prevent undue inconvenience upon the other
party, and save the precious time of the courts. It also aims to prevent
the embarrassing situation of two or more courts or agencies rendering
conflicting resolutions or decisions upon the same issue.[21]
It is in this light that we take a further look at the necessity of attaching a
certification against forum shopping to a disbarment complaint. It would
seem that the scenario sought to be avoided, i.e., the filing of multiple
suits and the possibility of conflicting decisions, rarely happens in
disbarment complaints considering that said proceedings are either
taken by the Supreme Court motu proprio, or by the Integrated Bar of the
Philippines (IBP) upon the verified complaint of any person.[22] Thus, if
the complainant in a disbarment case fails to attach a certification against
forum shopping, the pendency of another disciplinary action against the
same respondent may still be ascertained with ease. We have previously
held that the rule requiring a certification of forum shopping to
accompany every initiatory pleading, should not be interpreted with such
absolute literalness as to subvert its own ultimate and legitimate
objective or the goal of all rules of procedurewhich is to achieve
substantial justice as expeditiously as possible.[23]
At any rate, complainants subsequent compliance with the requirement
cured the supposed defect in the original complaint. The records show
that complainant submitted the required certification against forum
shopping on 6 December 2006 when he filed his Comment/Opposition
to respondents Motion to Dismiss the present petition.
Finally, the intrinsic merit of complainants case against respondent
justifies the grant of the present petition. Respondent does not deny
authorship of the threatening letter to complainant, even spiritedly
contesting the charge that the letter is unethical.
Canon 19 of the Code of Professional Responsibility states that a lawyer
shall represent his client with zeal within the bounds of the law, reminding
legal practitioners that a lawyers duty is not to his client but to the
administration of justice; to that end, his clients success is wholly
subordinate; and his conduct ought to and must always be scrupulously
observant of law and ethics.[24] In particular, Rule 19.01 commands that
a lawyer shall employ only fair and honest means to attain the lawful
objectives of his client and shall not present, participate in presenting or
threaten to present unfounded criminal charges to obtain an improper
advantage in any case or proceeding. Under this Rule, a lawyer should
not file or threaten to file any unfounded or baseless criminal case or
cases against the adversaries of his client designed to secure a leverage
to compel the adversaries to yield or withdraw their own cases against
the lawyers client.[25]
PINEDAPCGRNMAN
In the case at bar, respondent did exactly what Canon 19 and its Rule
proscribe. Through his letter, he threatened complainant that should the
latter fail to pay the amounts they propose as settlement, he would file
and claim bigger amounts including moral damages, as well as multiple
charges such as tax evasion, falsification of documents, and cancellation
of business license to operate due to violations of laws. The threats are
not only unethical for violating Canon 19, but they also amount to
blackmail.
Blackmail is the extortion of money from a person by threats of
accusation or exposure or opposition in the public prints,obtaining of
value from a person as a condition of refraining from making an
accusation against him, or disclosing some secret calculated to operate
to his prejudice. In common parlance and in general acceptation, it is
equivalent to and synonymous with extortion, the exaction of money
either for the performance of a duty, the prevention of an injury, or the
exercise of an influence. Not infrequently, it is extorted by threats, or by
operating on the fears or the credulity, or by promises to conceal or offers
to expose the weaknesses, the follies, or the crime of the victim.[26]
In Sps. Boyboy v. Atty. Yabut, Jr.,[27] we held that [a]n accusation for
blackmail and extortion is a very serious one which, if properly
substantiated, would entail not only respondents disbarment from the
practice of law, but also a possible criminal prosecution. [28] While the
respondent in Boyboy was exonerated for lack of evidence, the same
may not be said of respondent in the present case for he admits to writing
the offensive letter.
In fact, respondent does not find anything wrong with what he wrote,
dismissing the same as merely an act of pointing out massive violations
of the law by the other party, and, with boldness, asserting that a lawyer
is under obligation to tell the truth, to report to the government
commission of offenses punishable by the State.[29] He further asserts
that the writing of demand letters is a standard practice and tradition and
that our laws allow and encourage the settlement of disputes.
Respondents assertions, however, are misleading, for it is quite obvious
that respondents threat to file the cases against complainant was
designed to secure some leverage to compel the latter to give in to his
clients demands. It was not respondents intention to point out
complainants violations of the law as he so gallantly claims. Far from it,
the letter even contains an implied promise to keep silent about the said
violations if payment of the claim is made on the date indicated.
Indeed, the writing of demand letters is a standard practice and tradition
in this jurisdiction. It is usually done by a lawyer pursuant to the principal-
agent relationship that he has with his client, the principal. Thus, in the
performance of his role as agent, the lawyer may be tasked to enforce
his clients claim and to take all the steps necessary to collect it, such as
writing a letter of demand requiring payment within a specified period.
However, the letter in this case contains more than just a simple demand
to pay. It even contains a threat to file retaliatory charges against
complainant which have nothing to do with his clients claim for separation
pay. The letter was obviously designed to secure leverage to compel
complainant to yield to their claims. Indeed, letters of this nature are
definitely proscribed by the Code of Professional Responsibility.
Respondent cannot claim the sanctuary provided by the privileged
communication rule under which a private communication executed in
the performance of a legal duty is not actionable. The privileged nature
of the letter was removed when respondent used it to blackmail
complainant and extort from the latter compliance with the demands of
his client.
Page 313
However, while the writing of the letter went beyond ethical standards,
we hold that disbarment is too severe a penalty to be imposed on
Intelligentia et Scientia Semper Mea
LEGAL ETHICS PINEDAPCGRNMAN
respondent, considering that he wrote the same out of his Discipline), Atty. Elmer C. Solidon (Atty. Solidon) sought the disbarment
overzealousness to protect his clients interests. Accordingly, the more of Atty. Ramil E. Macalalad (Atty. Macalalad) for violations of Rule
appropriate penalty is reprimand. 16.01,[2] Rule 18.03,[3] and Rule 18.04[4] of the Code of Professional
Responsibility involving negligence in handling a case.
WHEREFORE, premises considered, the petition is granted. The 26 May The Facts
2006 Resolution of the IBP Board of Governors is hereby REVERSED
and SET ASIDE. Respondent Atty. Lolito G. Aparicio is hereby found Atty. Macalalad is the Chief of the Legal Division of the Department of
liable for violation of Rule 19.01 of Canon 19 of the Code of Professional Environment and Natural Resources (DENR), Regional Office
Responsibility, and is accordingly meted out the penalty of REPRIMAND, 8, Tacloban City. Although he is in public service, the DENR Secretary
with the STERN WARNING that a repetition of the same or similar act has given him the authority to engage in the practice of law.
will be dealt with more severely.
While on official visit to Eastern Samar in October 2005, Atty. Macalalad
SO ORDERED. was introduced to Atty. Solidon by a mutual acquaintance, Flordeliz
Cabo-Borata (Ms. Cabo-Borata). Atty. Solidon asked Atty. Macalalad to
QUE VS ATTY REVILLA JR. (SUPRA) handle the judicial titling of a parcel of land located in Borongan, Eastern
Samar and owned by Atty. Solidons relatives. For a consideration of
Rule 19.02 A lawyer who has received information that his client Eighty Thousand Pesos (P80,000.00), Atty. Macalalad accepted the task
has, in the course of the representation, perpetuated a fraud upon to be completed within a period of eight (8) months. Atty. Macalalad
a person or tribunal, shall promptly call upon the client to rectify received Fifty Thousand Pesos (P50,000.00) as initial payment; the
the same, and failing which he ha to terminate the relationship with remaining balance of Thirty Thousand Pesos (P30,000.00) was to be
such client in accordance with the Rules of Court. paid when Atty. Solidon received the certificate of title to the property.
Atty. Macalalad has not filed any petition for registration over the property
PENA VS ATTY APARICIO (SUPRA) sought to be titled up to the present time.
DALISAY VS ATTY MAURICIO (SUPRA)
DONTON VS DR TANSINGCO (SUPRA) In the Complaint, Position Papers[5] and documentary evidence
submitted, Atty. Solidon claimed that he tried to contact Atty. Macalalad
Rule 19.03 A lawyer shall not allow his client to dictate the to follow-up on the status of the case six (6) months after he paid the
procedure in handling the case. initial legal fees. He did this through phone calls and text messages to
General Rule: Negligence binds client their known acquaintances and relatives, and, finally, through a letter
Exception: Reckless imprudence (deprives client of due process) sent by courier to Atty. Macalalad. However, he did not receive any
Results in outright deprivation of ones property through technicality communication from Atty. Macalalad.
Must not present in evidence any document known to be
false; nor present a false witness. In the Answer,[6] Position Paper,[7] and affidavits of witnesses, Atty.
Macalalad posited that the delay in the filing of the petition for the titling
Negative pregnant is improper since it is an ambiguous
of the property was caused by his clients failure to communicate with
pleading (improper if in bad faith and the purpose is to
him. He also explained that he had no intention of reneging on his
confuse the other party)
obligation, as he had already prepared the draft of the petition. He failed
In defense: present every defense the law permits.
to file the petition simply because he still lacked the needed documentary
Lawyer should do his best efforts to restrain and to prevent evidence that his clients should have furnished him. Lastly, Atty.
his clients from perpetrating acts which he himself ought not Macalalad denied that Atty. Solidon tried to communicate with him.
to do. Or else, withdraw. But lawyer shall not volunteer the
information about the clients commission of fraud to anyone The Findings of the IBP
counter to duty to maintain clients confidence and secrets.
In his Report and Recommendation dated June 25, 2008, Investigating
ATTY. ELMER C. SOLIDON, A.C. No. 8158 Commissioner Randall C. Tabayoyong made the following finding of
Complainant, negligence against Atty. Macalalad:
Present:
CARPIO, J., Chairperson, complainant submitted in his position paper the affidavit of Flordeliz
BRION, Cabo-Borata, the mutual acquaintance of both complainant and
DEL CASTILLO, respondent. In the said affidavit, Mrs. Cabo-Borata described how she
- versus - ABAD, and repeatedly followed-up the matter with respondent and how respondent
PEREZ, JJ. turned a deaf ear towards the same. There is nothing on record which
would prompt this Office to view the allegations therein with caution. In
Promulgated: fact, considering that the allegations corroborate the undisputed facts of
the instant case...
ATTY. RAMIL E. February 24, 2010
MACALALAD, As respondent has failed to duly present any reasonable excuse for the
Respondent. non-filing of the application despite the lapse of about a year from the
x------------------------------------------------------------------------------------ time his services were engaged, it is plain that his negligence in filing the
-------------------x application remains uncontroverted. And such negligence is contrary to
DECISION the mandate prescribed in Rule 18.03, Canon 18 of the Code of
Professional Responsibility, which enjoins a lawyer not to neglect a legal
BRION, J.: matter entrusted to him. In fact, Rule 18.03 even provides that his
negligence in connection therewith shall render him liable.
Page 314

In a verified complaint[1] before the Commission on Bar Discipline of the

Integrated Bar of the Philippines (IBP Commission on Bar

Intelligentia et Scientia Semper Mea

LEGAL ETHICS
Acting on this recommendation, the Board of Governors of the IBP
Commission on Bar Discipline passed Resolution No. XVIII-2008-336
dated July 17, 2008, holding that:
RESOLVED TO ADOPT and APPROVE, as it is hereby unanimously
ADOPTED and APPROVED, with modification, the Report and
Recommendation of the Investigating Commissioner of the above-
entitled case, herein made part of this Resolution and, finding the
recommendation fully supported by the evidence on record and the
applicable laws and rules, and considering Respondents violation of
Rule 18.03 of the Code of Professional Responsibility, Atty. Ramil E.
Macalalad is hereby SUSPENDED from the practice of law for three (3)
months and Ordered to Return the amount of Fifty Thousand Pesos
(P50,000) with 12% interest per annum to complainant
The case is now before this Court for our final action pursuant to Section
12(b), Rule 139-B of the Rules of Court, considering that the IBP
Commission on Bar Discipline imposed the penalty of suspension on
Atty. Macalalad.
The Courts Ruling
We agree with the IBPs factual findings and legal conclusions.
In administrative cases against lawyers, the quantum of proof required
is preponderance of evidence which the complainant has the burden to
discharge.[8] We fully considered the evidence presented and we are fully
satisfied that the complainants evidence, as outlined above, fully
satisfies the required quantum of proof in proving Atty. Macalalads
negligence.
Rule 18.03, Canon 18 of the Code of Professional Responsibility
provides for the rule on negligence and states:
Rule 18.03 A lawyer shall not neglect a legal matter entrusted to him
and his negligence in connection therewith shall render him liable.
This Court has consistently held, in construing this Rule, that the mere
failure of the lawyer to perform the obligations due to the client is
considered per se a violation.
Thus, in Villafuerte v. Cortez,[9] we held that a lawyer is negligent if he
failed to do anything to protect his clients interest after receiving his
acceptance fee. In In Re: Atty. Briones,[10] we ruled that the failure of
the counsel to submit the required brief within the reglementary period
(to the prejudice of his client who languished in jail for more than a year)
is an offense that warrants disciplinary action. In Garcia v. Atty. Manuel,
we penalized a lawyer for failing to inform the client of the status of the
case, among other matters.[11]
Subsequently, in Reyes v. Vitan,[12] we reiterated that the act of
receiving money as acceptance fee for legal services in handling the
complainants case and, subsequently, in failing to render the services,
is a clear violation of Canon 18 of the Code of Professional
Responsibility. We made the same conclusion in Canoy v.
Ortiz[13] where we emphatically stated that the lawyers failure to file the
position paper was per se a violation of Rule 18.03 of the Code of
Professional Responsibility.
The circumstance that the client was also at fault does not exonerate a
lawyer from liability for his negligence in handling a case. In Canoy, we
accordingly declared that the lawyer cannot shift the blame to his client
for failing to follow up on his case because it was the lawyers duty to
inform his client of the status of the case.[14] Our rulings inMacarilay v.
Seria,[15] in Heirs of Ballesteros v. Apiag,[16] and in Villaflores v.
Limos[17] were of the same tenor. In Villaflores, we opined that even if
the client has been equally at fault for the lack of communication, the
main responsibility remains with the lawyer to inquire and know the best
PINEDAPCGRNMAN
means to acquire the required information. We held that as between the
client and his lawyer, the latter has more control in handling the case.
All these rulings drive home the fiduciary nature of a lawyers duty to his
client once an engagement for legal services is accepted. A lawyer so
engaged to represent a client bears the responsibility of protecting the
latters interest with utmost diligence.[18] The lawyer bears the duty to
serve his client with competence and diligence, and to exert his best
efforts to protect, within the bounds of the law, the interest of his or her
client.[19] Accordingly, competence, not only in the knowledge of law, but
also in the management of the cases by giving these cases appropriate
attention and due preparation, is expected from a lawyer.[20]
The records in this case tell us that Atty. Macalalad failed to act as he
committed when he failed to file the required petition. He cannot now
shift the blame to his clients since it was his duty as a lawyer to
communicate with them. At any rate, we reject Atty. Macalalads defense
that it was his clients who failed to contact him. Although no previous
communication transpired between Atty. Macalalad and his clients, the
records nevertheless show that Atty. Solidon, who contracted Atty.
Macalalads services in behalf of his relatives, tried his best to reach him
prior to the filing of the present disbarment case. Atty. Solidon even
enlisted the aid of Ms. Cabo-Borata to follow-up on the status of the
registration application with Atty. Macalalad.
As narrated by Ms. Cabo-Borata in her affidavit,[21] she succeeded
several times in getting in touch with Atty. Macalalad and on those
occasions asked him about the progress of the case. To use Ms. Cabo-
Boratas own words, she received no clear-cut answers from him; he just
informed her that everything was on process. We give credence to these
narrations considering Atty. Macalalads failure to contradict them or deny
their veracity, in marked contrast with his vigorous denial of Atty.
Solidons allegations.
We consider, too, that other motivating factors specifically, the monetary
consideration and the fixed period of performance should have made it
more imperative for Atty. Macalalad to promptly take action and initiate
communication with his clients. He had been given initial payment and
should have at least undertaken initial delivery of his part of the
engagement.
We further find that Atty. Macalalads conduct refutes his claim of
willingness to perform his obligations. If Atty. Macalalad truly wanted to
file the petition, he could have acquired the necessary information from
Atty. Solidon to enable him to file the petition even pending the IBP
Commission on Bar Discipline investigation. As matters now stand, he
did not take any action to initiate communication. These omissions
unequivocally point to Atty. Macalalads lack of due care that now
warrants disciplinary action.
In addition to the above finding of negligence, we also find Atty.
Macalalad guilty of violating Rule 16.01 of the Code of Professional
Responsibility which requires a lawyer to account for all the money
received from the client. In this case, Atty. Macalalad did not immediately
account for and promptly return the money he received from Atty. Solidon
even after he failed to render any legal service within the contracted time
of the engagement.[22]
The Penalty
Based on these considerations, we modify the IBP Commission on Bar
Disciplines recommended penalty by increasing the period of Atty.
Macalalads suspension from the practice of law from three (3) months,
to six (6) months.[23] In this regard, we follow the Courts lead in Parias v.
Page 315
Paguinto[24] where we imposed on the respondent lawyer suspension of
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
six (6) months from the practice of law for violations of Rule 16.01 and
Rule 18.03 of the Code of Professional Responsibility.
WHEREFORE, premises considered, we hereby AFFIRM WITH
MODIFICATION Resolution No. XVIII-2008-336 dated July 17, 2008 of
the Board of Governors of the IBP Commission on Bar Discipline. We
impose on Atty. Ramil E. Macalalad the penalty of SIX (6) MONTHS
SUSPENSION from the practice of law for violations of Rule 16.03 and
Rule 18.03 of the Code of Professional Responsibility, effective upon
finality of this Decision. Atty. Macalalad is STERNLY WARNED that a
repetition of the same or similar acts will be dealt with more severely.
Atty. Macalalad is also ORDERED to RETURN to Atty. Elmer C. Solidon
the amount of Fifty Thousand Pesos (P50,000.00) with interest of twelve
percent (12%) per annum from the date of promulgation of this Decision
until the full amount is returned.
Let copies of this Decision be furnished the Office of the Bar
Confidant and noted in Atty. Macalalads record as a member of the Bar.
SO ORDERED.
PINEDAPCGRNMAN
DECISION
SERENO, J.:
These consolidated petitions began as a simple case for payment of
services rendered and for reimbursement of costs. The case spun a web
of suits and counter-suits because of: (1) the size of the award for agents
fee rendered in favor of Atty. Magdaleno Pea (Pea) PhP24,000,000
rendered by the trial court; (2) the controversial execution of the full
judgment award of PhP28,500,000 (agents fee plus reimbursement for
costs and other damages) pending appeal; and (3) the finding of solidary
liability against Urban Bank, Inc., and several of its corporate officers and
directors together with the concomitant levying and sale in execution of
the personal (even conjugal) properties of those officers and directors;
and (4) the fact that assets with declared conservative values of at
least PhP181 Million which, together with those with undeclared values
could reach very much more than such amount,[1] were levied or sold on
execution pending appeal to satisfy the PhP28.5 Million award in favor
of Atty. Pea. Incidentally, two supersedeas bonds worth PhP80 Million
(2.8 times the amount of the judgment) were filed by Urban Bank and
some of its officers and directors to stay the execution pending appeal.

CANON 20 A LAWYER SHALL CHARGE ONLY FAIR AND Had the four attendant circumstances not afflicted the original case, it
REASONABLE FEES. would have been an open-and-shut review where this Court, applying
even just the minimum equitable principle against unjust enrichment
URBAN BANK, INC, G.R. No. 145817 would have easily affirmed the grant of fair recompense to Atty. Pea for
Petitioner, services he rendered for Urban Bank if such had been ordered by the
trial court.
- versus -

MAGDALENO M. PEA,
Respondent.
x---------------------------------------------x That Atty. Pea should be paid something by Urban Bank is not in dispute
the Court of Appeals (CA) and the Regional Trial Court (RTC) of Bago
DELFIN C. GONZALEZ, JR., BENJAMIN L. G. R. No. 145822 City, agreed on that. What they disagreed on is the basis and the size of
DE LEON, and ERIC L. LEE, the award. The trial court claims that the basis is an oral contract of
agency and the award should be PhP28,5000,000; while, the appellate
Petitioners, court said that Atty. Pea can only be paid under the legal principle against
unjust enrichment, and the total award in his favor should only amount
- versus - to PhP3,000,000.

MAGDALENO M. PEA,
Respondent. In the eyes of the trial court, the controlling finding is that Atty. Pea should
x---------------------------------------------x be believed when he testified that in a telephone conversation, the
president of Urban Bank, Teodoro Borlongan, a respondent herein,
MAGDALENO M. PEA, G. R. No. 162562 agreed to pay him for his services 10% of the value of the property then
Petitioner, worth PhP240,000,000, or PhP24,000,000. Costs and other awards
Present: additionally amount to PhP4,500,000, for a total award of
PhP28,500,000 according to the trial court. To the Court of Appeals, such
- versus - BRION, J., an award has no basis, as in fact, no contract of agency exists between
Acting Atty. Pea and Urban Bank. Hence, Atty. Pea should only be
Chairperson, recompensed according to the principle of unjust enrichment, and that
URBAN BANK, INC., TEODORO VILLARAMA,* he should be awarded the amount of PhP3,000,000 only for his services
BORLONGAN, DELFIN C. GONZALEZ, MENDOZA,** and reimbursements of costs.
JR., BENJAMIN L. DE LEON, P. SIERVO H. SERENO, and
DIZON, ERIC L. LEE, BEN T. LIM, JR., PERLAS-
CORAZON BEJASA, and ARTURO BERNABE,*** JJ. The disparity in the size of the award given by the trial court vis--vis that
MANUEL, JR., of the Court of Appeals (PhP28,500,000 v. PhP3,000,000) must be
Respondents. Promulgated: placed in the context of the service that Atty. Pea proved that he
rendered for Urban Bank. As the records bear, Atty. Peas services
consisted of causing the departure of unauthorized sub-tenants in
October 19, 2011 twenty-three commercial establishments in an entertainment compound
along Roxas Boulevard. It involved the filing of ejectment suits against
x--------------------------------------------------- them, Peas personal defense in the counter-suits filed against him, his
Page 316

x settlement with them to the tune of PhP1,500,000, which he advanced

from his own funds, and his retention of security guards and expenditure

Intelligentia et Scientia Semper Mea

LEGAL ETHICS
for other costs amounting to more or less PhP1,500,000. There is no
claim by Atty. Pea of any service beyond those. He claims damages from
the threats to his life and safety from the angry tenants, as well as a
vexatious collection suit he had to face from a creditor-friend from whom
he borrowed PhP3,000,000 to finance the expenses for the services he
rendered Urban Bank.
At the time the award of PhP28,500,000 by the trial court came out in
1999, the net worth of Urban Bank was PhP2,219,781,104.[2] While the
bank would be closed by theBangko Sentral ng Pilipinas (BSP) a year
later for having unilaterally declared a bank holiday contrary to banking
rules, there was no reason to believe that at the time such award came
out it could not satisfy a judgment of PhP28,500,000, a sum that was
only 1% of its net worth, and a miniscule 0.2% of its total assets
of PhP11,933,383,630.[3] In fact, no allegation of impending insolvency
or attempt to abscond was ever raised by Atty. Pea and yet, the trial court
granted execution pending appeal.
Interestingly, Pea had included as co-defendants with Urban Bank in the
RTC case, several officers and board directors of Urban Bank. Not all
board directors were sued, however. With respect to those included in
the complaint, other than against Teodoro Borlongan, Corazon Bejasa,
and Arturo Manuel, no evidence was ever offered as to their individual
actions that gave rise to Atty. Peas cause of action the execution of the
agency contract and its breach and yet, these officers and directors were
made solidarily liable by the trial court with Urban Bank for the alleged
breach of the alleged corporate contract of agency. Execution pending
appeal was also granted against them for this solidary liability resulting
in the levy and sale in execution pending appeal of not only corporate
properties of Urban Bank but also personal properties of the individual
bank officers and directors. It would have been interesting to find out
what drove Atty. Pea to sue the bank officers and directors of Urban Bank
and why he chose to sue only some, but not all of the board directors of
Urban Bank, but there is nothing on the record with which this analysis
can be pursued.
Before us are: (a) the Petitions of Urban Bank (G. R. No. 145817) and
the De Leon Group (G R. No. 145822) questioning the propriety of the
grant of execution pending appeal, and (b) the Petition of Atty. Pea (G.
R. No. 162562) assailing the CAs decision on the substantive merits of
the case with respect to his claims of compensation based on an agency
agreement.
Ordinarily, the final resolution by the Supreme Court of an appeal from a
trial court decision would have automatic, generally-understood
consequences on an order issued by the trial court for execution pending
appeal. But this is no ordinary case, and the magnitude of the
disproportions in this case is too mind-boggling that this Court must exert
extra effort to correct whatever injustices have been occasioned in this
case. Thus, our dispositions will include detailed instructions for several
judicial officials to implement.
At core, these petitions can be resolved if we answer the following
questions:
1. What is the legal basis for an award in favor of Pea for the services he
rendered to Urban Bank? Should it be a contract of agency the fee for
which was orally agreed on as Pea claims? Should it be the application
of the Civil Code provisions on unjust enrichment? Or is it to be based
on something else or a combination of the legal findings of both the RTC
and the CA? How much should the award be?
2. Are the officers and directors of Urban Bank liable in their personal
capacities for the amount claimed by Pea?
PINEDAPCGRNMAN
3. What are the effects of our answers to questions (1) and (2), on the
various results of the execution pending appeal that happened here?
Factual Background of the Controversy
Urban Bank, Inc. (both petitioner and respondent in these two
consolidated cases),[4] was a domestic Philippine corporation, engaged
in the business of banking.[5] The eight individual respondents in G. R.
No. 162562 were officers and members of Urban Banks board of
directors, who were sued in their official and personal capacities.[6] On
the other hand, Benjamin L. De Leon, Delfin C. Gonzalez, Jr., and Eric
L. Lee, (hereinafter the de Leon Group), are the petitioners in G. R. No.
145822 and are three of the same bank officers and directors, who had
separately filed the instant Petition before the Court.
Petitioner-respondent Atty. Magdaleno M. Pea (Pea)[7] is a lawyer by
profession and was formerly a stockholder, director and corporate
secretary of Isabel Sugar Company, Inc. (ISCI).[8]
ISCI owned a parcel of land[9] located in Pasay City (the Pasay
property).[10] In 1984, ISCI leased the Pasay property for a period of 10
years.[11] Without its consent[12]and in violation of the lease
contract,[13] the lessee subleased the land to several tenants, who in turn
put up 23 establishments, mostly beer houses and night clubs, inside the
compound.[14] In 1994, a few months before the lease contract was to
expire, ISCI informed the lessee[15] and his tenants[16] that the lease
would no longer be renewed and that it intended to take over the Pasay
property[17] for the purpose of selling it.[18]
Two weeks before the lease over the Pasay property was to expire, ISCI
and Urban Bank executed a Contract to Sell, whereby the latter would
pay ISCI the amount of PhP241,612,000 in installments for the Pasay
property.[19] Both parties agreed that the final installment of
PhP25,000,000 would be released by the bank upon ISCIs delivery of
full and actual possession of the land, free from any tenants.[20] In the
meantime, the amount of the final installment would be held by the bank
in escrow. The escrow provision in the Contract to Sell, thus, reads:
The SELLER (ISCI) agrees that from the proceeds of the purchase prices
of the subject Property (Pasay property), the BUYER (Urban Bank) shall
withhold the amount of PHP 25,000,000.00 by way of escrow and shall
release this amount to the SELLER only upon its delivery to the
BUYER of the full and actual possession and control of the Subject
Property, free from tenants, occupants, squatters or other
structures or from any liens, encumbrances, easements or any
other obstruction or impediment to the free use and occupancy by
the buyer of the subject Property or its exercise of the rights to
ownership over the subject Property, within a period of sixty (60) days
from the date of payment by the BUYER of the purchase price of the
subject Property net of the amounts authorized to be deducted or
withheld under Item II (a) of this Contract.[21] (Emphasis supplied)
ISCI then instructed Pea, who was its director and corporate secretary,
to take over possession of the Pasay property[22] against the tenants
upon the expiration of the lease. ISCIs president, Mr. Enrique G. Montilla
III (Montilla), faxed a letter to Pea, confirming the latters engagement as
the corporations agent to handle the eviction of the tenants from the
Pasay property, to wit:[23]
MEMORANDUM
TO: Atty. Magdaleno M. Pena
Director
Page 317
FROM: Enrique G. Montilla III
President
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
DATE: 26 November 1994
You are hereby directed to recover and take possession of the
property of the corporation situated at Roxas Boulevard covered by
TCT No. 5382 of the Register of Deeds for Pasay City immediately
upon the expiration of the contract of lease over the said property
on 29 November 1994. For this purpose you are authorized to engage
the services of security guards to protect the property against intruders.
You may also engage the services of a lawyer in case there is a need to
go to court to protect the said property of the corporation. In addition you
may take whatever steps or measures are necessary to ensure our
continued possession of the property.
(sgd.) ENRIQUE G. MONTILLA III
President[24]
On 29 November 1994, the day the lease contract was to expire, ISCI
and Urban Bank executed a Deed of Absolute Sale[25] over the Pasay
property for the amount agreed upon in the Contract to Sell, but subject
to the above escrow provision.[26] The title to the land was eventually
transferred to the name of Urban Bank on 05 December 1994.[27]
On 30 November 1994, the lessee duly surrendered possession of the
Pasay property to ISCI,[28] but the unauthorized sub-tenants refused to
leave the area.[29] Pursuant to his authority from ISCI, Pea had the gates
of the property closed to keep the sub-tenants out.[30] He also posted
security guards at the property,[31] services for which he advanced
payments.[32] Despite the closure of the gates and the posting of the
guards, the sub-tenants would come back in the evening, force open the
gates, and proceed to carry on with their businesses.[33] On three
separate occasions, the sub-tenants tried to break down the gates of the
property, threw stones, and even threatened to return and inflict greater
harm on those guarding it.[34]
In the meantime, a certain Marilyn G. Ong, as representative of ISCI,
faxed a letter to Urban Bank addressed to respondent Corazon Bejasa,
who was then the banks Senior Vice-President requesting the issuance
of a formal authority for Pea.[35] Two days thereafter, Ms. Ong faxed
another letter to the bank, this time addressed to its president,
respondent Teodoro Borlongan.[36] She repeated therein the earlier
request for authority for Pea, since the tenants were questioning ISCIs
authority to take over the Pasay property.[37]
In response to the letters of Ms. Ong, petitioner-respondent bank,
through individual respondents Bejasa and Arturo E. Manuel Senior
Vice-President and Vice-President, respectively advised Pea[38] that the
bank had noted the engagement of his services by ISCI and stressed
that ISCI remained as the lawyers principal.[39]
To prevent the sub-tenants from further appropriating the Pasay
property,[40] petitioner-respondent Pea, as director and representative of
ISCI, filed a complaint for injunction[41] (the First Injunction Complaint)
with the RTC-Pasay City.[42] Acting on ISCIs prayer for preliminary relief,
the trial court favorably issued a temporary restraining order
(TRO),[43] which was duly implemented.[44] At the time the First Injunction
Complaint was filed, a new title to the Pasay property had already been
issued in the name of Urban Bank.[45]
On 19 December 1994, when information reached the judge that the
Pasay property had already been transferred by ISCI to Urban Bank, the
trial court recalled the TRO and issued a break-open order for the
property. According to Pea, it was the first time that he was apprised of
the sale of the land by ISCI and of the transfer of its title in favor of the
bank.[46] It is not clear from the records how such information reached
the judge or what the break-open order was in response to.
PINEDAPCGRNMAN
On the same day that the TRO was recalled, petitioner-respondent Pea
immediately contacted ISCIs president, Mr. Montilla, who in turn
confirmed the sale of the Pasay property to Urban Bank.[47] Pea told Mr.
Montilla that because of the break-open order of the RTC-Pasay City, he
(Pea) would be recalling the security guards he had posted to secure the
property. Mr. Montilla, however, asked him to suspend the planned
withdrawal of the posted guards, so that ISCI could get in touch with
petitioner-respondent bank regarding the matter.[48]
Later that same day, Pea received a telephone call from respondent
Bejasa. After Pea informed her of the situation, she allegedly told him
that Urban Bank would be retaining his services in guarding the Pasay
property, and that he should continue his efforts in retaining possession
thereof. He insisted, however, on talking to the Banks president.
Respondent Bejasa gave him the contact details of respondent
Borlongan, then president of Urban Bank.[49]
The facts regarding the following phone conversation and
correspondences are highly-controverted. Immediately after talking to
respondent Bejasa, Pea got in touch with Urban Banks president,
respondent Borlongan. Pea explained that the policemen in Pasay City
were sympathetic to the tenants and were threatening to force their way
into the premises. He expressed his concern that violence might erupt
between the tenants, the city police, and the security guards posted in
the Pasay property. Respondent Borlongan supposedly assured him that
the bank was going to retain his services, and that the latter should not
give up possession of the subject land. Nevertheless, petitioner-
respondent Pea demanded a written letter of authority from the bank.
Respondent Borlongan acceded and instructed him to see respondent
Bejasa for the letter.[50]
In the same telephone conversation, respondent Borlongan allegedly
asked Pea to maintain possession of the Pasay property and to
represent Urban Bank in any legal action that might be instituted relative
to the property. Pea supposedly demanded 10% of the market value of
the property as compensation and attorneys fees and reimbursement for
all the expenses incurred from the time he took over land until
possession was turned over to Urban Bank. Respondent Borlongan
purportedly agreed on condition that possession would be turned over to
the bank, free of tenants, not later than four months; otherwise, Pea
would lose the 10% compensation and attorneys fees. [51]
Later that afternoon, Pea received the banks letter dated 19 December
1994, which was signed by respondents Bejasa and Manuel, and is
quoted below:
This is to confirm the engagement of your services as the
authorized representative of Urban Bank, specifically to hold and
maintain possession of our abovecaptioned property [Pasay
property] and to protect the same from former tenants, occupants
or any other person who are threatening to return to the said
property and/or interfere with your possession of the said property
for and in our behalf.
You are likewise authorized to represent Urban Bank in any court action
that you may institute to carry out the aforementioned duties, and to
prevent any intruder, squatter or any other person not otherwise
authorized in writing by Urban [B]ank from entering or staying in the
premises.[52] (Emphasis supplied)
On even date, ISCI sent Urban Bank a letter, which acknowledged ISCIs
engagement of Pea and commitment to pay for any expenses that may
be incurred in the course of his services. ISCIs letter reads:
Page 318
This has reference to your property located along Roxas Boulevard,
Pasay City [Pasay property] which you purchased from Isabela Sugar
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Company under a Deed of Absolute Sale executed on December 1,
1994.
In line with our warranties as the Seller of the said property and our
undertaking to deliver to you the full and actual possession and control
of said property, free from tenants, occupants or squatters and from any
obstruction or impediment to the free use and occupancy of the
property by Urban Bank, we have engaged the services of Atty.
Magdaleno M. Pea to hold and maintain possession of the property
and to prevent the former tenants or occupants from entering or
returning to the premises. In view of the transfer of the ownership of
the property to Urban Bank, it may be necessary for Urban Bank to
appoint Atty. Pea likewise as its authorized representative for purposes
of holding/maintaining continued possession of the said property and to
represent Urban Bank in any court action that may be instituted for the
abovementioned purposes.
It is understood that any attorneys fees, cost of litigation and any
other charges or expenses that may be incurred relative to the
exercise by Atty. Pea of his abovementioned duties shall be for the
account of Isabela Sugar Company and any loss or damage that may
be incurred to third parties shall be answerable by Isabela Sugar
Company.[53] (Emphasis supplied)
The following narration of subsequent proceedings is uncontroverted.
Pea then moved for the dismissal of ISCIs First Injunction Complaint,
filed on behalf of ISCI, on the ground of lack of personality to continue
the action, since the Pasay property, subject of the suit, had already been
transferred to Urban Bank.[54] The RTC-Pasay City dismissed the
complaint and recalled its earlier break-open order.[55]
Thereafter, petitioner-respondent Pea, now in representation of Urban
Bank, filed a separate complaint[56] (the Second Injunction Complaint)
with the RTC-Makati City, to enjoin the tenants from entering the Pasay
property.[57] Acting on Urban Banks preliminary prayer, the RTC-Makati
City issued a TRO.[58]
While the Second Injunction Complaint was pending, Pea made efforts
to settle the issue of possession of the Pasay property with the sub-
tenants. During the negotiations, he was exposed to several civil and
criminal cases they filed in connection with the task he had assumed for
Urban Bank, and he received several threats against his life.[59] The sub-
tenants eventually agreed to stay off the property for a total consideration
of PhP1,500,000.[60] Pea advanced the payment for the full and final
settlement of their claims against Urban Bank.[61]
Pea claims to have borrowed PhP3,000,000 from one of his friends in
order to maintain possession thereof on behalf of Urban
Bank.[62] According to him, although his creditor-friend granted him
several extensions, he failed to pay his loan when it became due, and it
later on became the subject of a separate collection suit for payment with
interest and attorneys fees.[63] This collection suit became the basis for
Atty. Peas request for discretionary execution pending appeal later on.
On 07 February 1995, within the four-month period allegedly agreed
upon in the telephone conversation, Pea formally informed Urban Bank
that it could already take possession of the Pasay property.[64] There was
however no mention of the compensation due and owed to him for the
services he had rendered.
On 31 March 1995, the bank subsequently took actual possession of the
property and installed its own guards at the premises.[65]
PINEDAPCGRNMAN
Pea thereafter made several attempts to contact respondents Borlongan
and Bejasa by telephone, but the bank officers would not take any of his
calls. On 24 January 1996, or nearly a year after he turned over
possession of the Pasay property, Pea formally demanded from Urban
Bank the payment of the 10% compensation and attorneys fees allegedly
promised to him during his telephone conversation with Borlongan for
securing and maintaining peaceful possession of the property.[66]
Proceedings on the Complaint for Compensation
On 28 January 1996, when Urban Bank refused to pay for his services
in connection with the Pasay property, Pea filed a complaint [67] for
recovery of agents compensation and expenses, damages and attorneys
fees in RTC-Bago City in the province of Negros
Occidental.[68] Interestingly, Pea sued only six out of the eleven members
of the Board of the Directors of Urban Bank.[69] No reason was given why
the six directors were selected and the others excluded from Peas
complaint. In fact, as pointed out, Atty. Pea mistakenly impleaded as a
defendant, Ben Y. Lim, Jr., who was never even a member of the Board
of Directors of Urban Bank; while, Ben T. Lim, Sr., father and namesake
of Ben Y. Lim, Jr., who had been a director of the bank, already passed
away in 1997.[70]
In response to the complaint of Atty. Pea, Urban Bank and individual
bank officers and directors argued that it was ISCI, the original owners
of the Pasay property, that had engaged the services of Pea in securing
the premises; and, consequently, they could not be held liable for the
expenses Pea had incurred.[71]
On 28 May 1999, the RTC-Bago City[72] ruled in favor of Pea, after finding
that an agency relationship had indeed been created between him and
Urban Bank. The eight directors and bank officers were found to be
solidarily liable with the bank for the payment of agencys fees. The trial
court thus ordered Urban Bank and all eight defendant bank directors
and officers whom Pea sued to pay the total amount of PhP28,500,000
(excluding costs of suit):
WHEREFORE, premised from the foregoing, judgment is hereby
rendered ordering defendants to pay plaintiff jointly and severally the
following amounts:
1. P24,000,000 as compensation for plaintiffs services plus
the legal rate of interest from the time of demand until fully paid;
2. P3,000,000 as reimbursement of plaintiffs expenses;
3. P1,000,000 as and for attorneys fees;
4. P500,000 as exemplary damages;
5. Costs of suit.
SO ORDERED.[73]
Urban Bank and the individual defendant bank directors and officers filed
a common Notice of Appeal,[74] which was given due course.[75] In the
appeal, they questioned the factual finding that an agency relationship
existed between the bank and Pea.[76]
Although they put up a single defense in the proceedings in the lower
court, Urban Bank and individual defendants contracted different counsel
and filed separate Briefs on appeal in the appellate court.
In its Brief,[77] Urban Bank[78] assigned as errors the trial courts reliance
on the purported oral contract of agency and Peas claims for
compensation during the controverted telephone conversation with
Borlongan, which were allegedly incredible.
Meanwhile, Benjamin L. de Leon, Delfin Gonzalez, Jr., and Eric L. Lee
(the De Leon Group),[79] the petitioners in the instant Petition docketed
Page 319
as G. R. No. 145822, argued that, even on the assumption that there had
been an agency contract with the bank, the trial court committed
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
reversible error in holding them as bank directors solidarily liable with the
corporation.[80]
On the other hand, Teodoro Borlongan, Corazon M. Bejasa, Arturo
Manuel, Jr., Ben Y. Lim, Jr., and P. Siervo H. Dizon (the Borlongan
Group)[81] reiterated similar arguments as those of the De Leon Group,
adding that the claimed compensation of 10% of the purchase price of
the Pasay property was not reasonable.[82]
Pea refuted all of their arguments[83] and prayed that the trial courts
Decision be affirmed.[84]
Acting favorably on the appeal, the Court of Appeals[85] annulled the
Decision of the RTC-Bago City and ruled that no agency relationship had
been created. Nevertheless, it ordered Urban Bank to reimburse Pea for
his expenses and to give him reasonable compensation for his efforts in
clearing the Pasay property of tenants in the amount of PhP3,000,000,
but absolved the bank directors and officers from solidary liability. The
dispositive portion of the CA decision reads as follows:
WHEREFORE, in view of the foregoing considerations, the May 28, 2000
Decision [sic] and the October 19, 2000 [sic] Special Order of the RTC
of Bago City, Branch 62,[86] are hereby ANNULLED AND SET
ASIDE. However, the plaintiff-appellee [Pea] in CA GR CV No. 65756
is awarded the amount of P3 Million as reimbursement for his
expenses as well as reasonable compensation for his efforts in
clearing Urban Banks property of unlawful occupants. The award of
exemplary damages, attorneys fees and costs of suit are deleted, the
same not having been sufficiently proven. The petition for Indirect
Contempt against all the respondents is DISMISSED for utter lack of
merit. [87] (Emphasis supplied)
Pea duly filed a Motion for Reconsideration of the unfavorable CA
Decision.[88] The appellate court, however, denied his motion.[89] The CA
Decision and Resolution were appealed by Pea to this Court, through
one of the three consolidated Rule 45 Petitions before us (G. R. No.
162562).
Execution Pending Appeal
On 07 June 1999, prior to the filing of the notice of appeal of Urban Bank
and individual bank officers,[90] Pea moved for execution pending
appeal[91] of the Decision rendered by the RTC-Bago City,[92] which had
awarded him a total of PhP28,500,000 in compensation and damages.[93]
In supporting his prayer for discretionary execution, Pea cited the
pending separate civil action for collection filed against him by his
creditor-friend, who was demanding payment of a PhP3,000,000
loan.[94] According to Pea, he had used the proceeds of the loan for
securing the banks Pasay property. No other reason for the prayer for
execution pending appeal was given by Pea other than this
collection suit.[95]
In opposition to the motion, Urban Bank countered that the collection
case was not a sufficient reason for allowing execution pending
appeal.[96]
On 29 October 1999, the RTC-Bago City, through Judge Henry J.
Trocino,[97] favorably granted Peas motion and issued a Special Order
authorizing execution pending appeal.[98] In accordance with this Special
Order, Atty. Josephine Mutia-Hagad, the clerk of court and ex
officio sheriff, issued a Writ of Execution[99] on the same day.[100] The
Special Order and Writ of Execution were directed at the properties
owned by Urban Bank as well as the properties of the eight individual
bank directors and officers.
PINEDAPCGRNMAN
On 04 November 1999, affected by the trial courts grant of execution
pending appeal, Urban Bank[101] filed a Rule 65 Petition with the CA to
enjoin the Special Order and Writ of Execution issued by the trial court
with a prayer for a TRO.[102]
On 09 November 1999, the appellate court favorably granted the TRO
and preliminarily prohibited the implementation of the Special Order and
Writ of Execution.[103]
On 12 January 2000, the CA eventually granted Urban Banks Rule 65
Petition, and the RTCs Special Order and Writ of Execution, which
permitted execution pending appeal, were annulled. The appellate court
ruled:[104]
WHEREFORE, the instant petition is GRANTED. The Special Order and
writ of execution, both dated October 29, 1999, are ANNULLED and SET
ASIDE.
Respondents are directed to desist from further implementing the writ of
execution and to lift the garnishment and levy made pursuant thereto. [105]
On 02 February 2000, Pea moved for the reconsideration of the CAs
Decision;[106] while petitioners filed their corresponding
Comment/Opposition
thereto.[107]
During the pendency of Peas Motion for Reconsideration, Urban Bank
declared a bank holiday on 26 April 2000 and was placed under
receivership of the Philippine Deposit Insurance Corporation (PDIC).[108]
In its Amended Decision dated 18 August 2000, the CA[109] favorably
granted Peas Motion for Reconsideration, and reversed its earlier
Decision to allow execution pending appeal.[110] The appellate court
found that the bank holiday declared by the BSP after the promulgation
of its earlier Decision, PDICs receivership of Urban Bank, and the
imminent insolvency thereof constituted changes in the banks conditions
that would justify execution pending appeal.[111]
On 29 August 2000, Urban Bank and its officers moved for the
reconsideration of the Amended Decision.[112] The De Leon Group
subsequently filed several Supplemental Motions for
Reconsideration.[113] Thereafter, respondents Teodoro Borlongan and
Corazon M. Bejasa also filed their separate Supplemental Motion for
Reconsideration,[114] as did petitioner Ben T. Lim, Jr.[115]
On 19 October 2000, the Court of Appeals denied the motion for
reconsideration for lack of merit and the other subsequent Supplemental
Motions for Reconsideration for being filed out of time.[116] The appellate
court also ordered Pea to post an indemnity bond. [117] The Amended
Decision and the Resolution were the subjects of several Rule 45
Petitions filed by Urban Bank and individual petitioners (G. R. Nos.
145817, 145818 and 145822).
On the same day the CA denied its Motion for Reconsideration, the De
Leon Group immediately moved for the stay of execution pending appeal
upon the filing of a supersedeas bond.[118]
On 31 October 2000, the CA[119] granted the stay of the execution upon
the filing by the De Leon Group of a PhP40,000,000 bond in favor of
Pea.[120] Pea moved for the reconsideration of the stay order.[121]
In its Resolution dated 08 December 2000,[122] the appellate court denied
Page 320
Peas Motion for Reconsideration and a stay order over the execution
pending appeal was issued in favor of the De Leon Group, after they had
Intelligentia et Scientia Semper Mea
LEGAL ETHICS PINEDAPCGRNMAN
filed their supersedeas bond.[123] The stay of execution pending appeal, Three Club As of 06 2,000,000 Atty. Pea
however, excluded Urban Bank.[124] Shares in December [137] was one
Makati 1999, MSCI of the
On 08 December 2000, Pea posted his indemnity bond as required by Sports, Club Shares winning
the CA.[125] Club, Inc. A and B bidders in
(MSCI) [Cov were selling the
As mentioned earlier, Urban Bank, the De Leon Group, and the ered by at auction
Borlongan Group filed around December 2000 separate Rule 45 Stock PhP650,000 sale
Petitions in this Court, to assail the unfavorable CA Amended Decision Certificate and together
and Resolution that affirmed the execution pending appeal. The details Nos. A- PhP700,000 with his
of these Rule 45 Petitions will be discussed in detail later on. 1893, A- , creditor
2305 and B- respectively. friend,
In the meantime, Export and Industry Bank (EIB) submitted its proposal 762][135] [136] Roberto
for rehabilitation of Urban Bank to the BSP, and requested that the Ignacio,
troubled bank be removed from receivership of the PDIC. On 12 July and Atty.
2001, or almost a year after the Court of Appeals amended its decision Ramon
to allow execution pending appeal, the rehabilitation plan of Urban Bank Ereeta.
was approved by the Monetary Board of the BSP.[126] Thus, the Monetary 85 The highest 85,000,00 Intervenor
Board subsequently lifted PDICs statutory receivership of the bank.[127] Condominiu bid price 0 Unimega
m Units in obtained for purchase
On 14 September 2001, Urban Bank, trying to follow the lead of the De the Urban the d the 10
Leon Group, made a similar request with the Court of Appeals for Bank Plaza, condominiu condomin
approval of its own supersedeas bond,[128] for the same amount of Makati m units ium units
PhP40,000,000, and prayed that the execution of the RTC-Bago Citys City[138] wasPhP1M in the
Decision against it be stayed as well.[129] at the time of auction
the sale for
Sometime in September and October 2001, Urban Bank began receiving execution P1M each
notices of levy and garnishment over its properties. After it received sale.[139] or a total
Notice of the impending public execution sale of its shares in the of P10
Tagaytay Highlands International Golf Club,[130] Urban Bank reiterated its M.[140]
request for the approval of the supersedeas bond with the Court of A 155 sqm. 12,400,00
Appeals and the issuance of the corresponding stay order.[131] condominiu 0
m unit,
The appellate court, however, merely noted Urban Banks motion on the Makati City
ground that there was no showing whether a petition to the Supreme (CCT No.
Court had been filed or given due course or denied.[132] 57697) [141]
Estimates
A 12.5 sqm. 500,000
After the denial by the Court of Appeals of Urban Banks motion for are based
condominiu
approval of its supersedeas bond, some of the levied properties of Urban on report of
m parking
Bank and the other bank officers were sold on public auction. The table Urban
space
below lists the properties that appear on record to have been levied Bank[142]
(Parking
and/or sold on execution pending appeal and the approximate value of Three, Unit
some of these properties. They do not include properties covered by the P-46) in
Petition docketed as G. R. No. 145818. Makati City
(CCT No.
TABLE OF LEVIED, GARNISHED AND/OR EXECUTED PROPERTIES 57698)[143]
PENDING APPEAL A 64,677 Value based 35,572,35
Owner/ Property Estimated Total Remarks sqm. land in on estimate 0
Defend Description Value or Amount Tagaytay of Urban
ant Price at City (TCT Bank[145]
Public No.
Auction 20471)[144]
Three Club As of 06 4,800,000 One Club Borlongans 1,000,000 Notice of
Shares December Share in club share Sale on
Tagaytay 1999, one Manila Polo was Execution
Urban
Highlands share was Teodoro Club (No. estimated to on
Bank
International selling at Borlong 3433)[146] be valued at Personal
Golf Club[133] P1.6 an P1,000,000.[ Property
Million.[134] 147] dated 25
August
2000[148]
Page 321

Intelligentia et Scientia Semper Mea

LEGAL ETHICS PINEDAPCGRNMAN
One Club One club 500,000 One Club De Leons 5,050,000 Notice of
Share in share was Share in Share was Sale on
Subic Bay estimated to Manila Polo estimated at Execution
Yacht be valued at Club (with P4 M for the on
Club[149] P500,000.[15 Associate share and Personal
0] Membership P1.05 M for Property
One Club As of 06 870,000 ) [No. the dated 25
Share in December 0597][167] associate August
Baguio 1999, one membership 2000[169]
Country share was .[168]
Club[151] selling at One Club De Leons 450,000
Benjami
P870,000.[15 Share in share was
n L. de
2] MSCI (Stock estimated at
Leon
One Club As of 06 650,000 Certificate P450,000.[17
Share in December No. A- 1]

MSCI[153] 1999, MSCI 175)[170]

Club Shares One Club As of 06 870,000
A and B Share in December
were selling Baguio 1999, one
at Country share was
PhP650,000 Club selling at
and (5523)[172] least
PhP700,000 P870,000.[17
respectively. 3]
[154]
No
Real No estimate records
Property[155] available on available
record. as to
P.
One Club Gonzales 4,000,000 Notice of properties
Siervo
Share in club share Sale on levied,
G.
Manila Polo was Execution garnished
Dizon
Club (No. estimated to on or
3818)[156] be valued at Personal executed
P4,000,000.[ Property pending
157] dated 25 appeal.
August One Club Lees club 4,000,000 Notice of
2000[158] Share in share was Sale on
One Club Gonzales 1,077,000 Manila Polo estimated to Execution
Share in club share Club be valued at on
Baguio was (2038)[174] P4,000,000.[ Personal
Country estimated to 175] Property
Club.[159] be valued at dated 25
P1,077,000.[ August
Delfin 160] 2000[176]
C. One Club Gonzales 2,000,000 One Club Lees club 15,750,00
Gonzale Share in club share Share in share was 0
s, Jr. Alabang was Manila Golf estimated to
Country estimated to Club, Inc.[177] be valued at
Club be valued at P15,750,00
(Member P2,000,000.[ Eric L. 0.[178]
No. 550)[161] 162] Lee One Club Lees club 2,000,000
30,585 P20.00 per 611,700 Share in Sta. share was
shares of share[164] Elena Golf estimated to
stock in D. Club, Inc. be valued at
C. (Class A P2,000,000.[
Gonzales, Share) [179] 180]

Jr., Inc.[163] Two Club Lees club 1,000,000 Notice of

40 Shares of P50.00 per 2,000 Shares in shares were Sale on
stock in D. share[166] Tagaytay estimated to Execution
C. Highlands be valued at on
Gonzales, Intl Golf P1,000,000.[ Personal
Jr., Inc.[165] Club, 182] Property
Inc. [181] dated 25
Page 322

August
2000[183]

Intelligentia et Scientia Semper Mea

LEGAL ETHICS PINEDAPCGRNMAN
One Club Lees club 500,000
Share in share was When Urban Bank supposedly failed to redeem the condominium units
Subic Yacht estimated to according to the sheriff,[200] final Certificates of Sale were issued in favor
Club[184] be valued at of Unimega on 04 November 2002.[201] Upon the latters motion, RTC-
P500,000.[18 Bago City, in its Order dated 13 November 2002, ordered the Register
5] of Deeds of Makati to transfer the Condominium Certificates of Title to
60,757 P20.00 per 1,214,140 the name of Unimega.[202] It has not been shown, though, whether this
Shares of share Order was followed.
stock in EQL
Properties, This Court, acting on Urban Banks earlier motion to approve its
Inc.[186] supersedeas bond, granted the same in its Resolution dated 19
40 Shares of P50.00 per 2,000 November 2001.[203] Pea moved for reconsideration of the
stock in EQL share approval,[204] but his motion was subsequently denied by the Court.[205]
Properties,
Inc.[187] Proceedings in the Supreme Court (G. R. Nos. 145817, 145818 &
Cash 100,000 145822)
garnished On 21 December 2000, Urban Bank,[206] represented by its receiver,
from BPI PDIC,[207] filed a Rule 45 Petition with this Court (docketed as G. R. No.
Account[188] 145817) to assail the CAs Amended Decision and Resolution granting
No execution pending appeal.[208] In response, Pea moved for the denial of
records the petition on the grounds of lack merit, violation of the rule against
available forum shopping, and non-payment of docket fees, among others.[209] In
as to a separate Comment,[210] Pea also argued that the appellate court had
properties committed no error when it considered the banks imminent insolvency
Ben T. as a good reason for upholding the validity of the execution pending
levied,
Lim, Jr. appeal.
garnished
or
executed
pending On the other hand, the Borlongan Group[211] filed a separate Rule 45
appeal. Petition questioning the same Decision and Resolution, docketed as G.
R. No. 145818.[212] This Court initially denied their petition on the ground
Corazo Real No
that it failed to sufficiently show that the CA committed reversible
n Property[189] estimated
order.[213] The Borlongan Group twice moved for the reconsideration of
Bejasa value.
the denial of their petition; but the Court nonetheless denied both motions
Arturo Real No for lack of merit.[214] This denial of the petition in G. R. No. 145818
Manuel, Property[190] estimated became final and executory, with the issuance of the Entry of
Jr., value. Judgment.[215]
TOTAL VALUE 181,919,1
90
Meanwhile, another Rule 45 Petition (G. R. No. 145822)[216] was filed by
The sum of PhP181,919,190 does not include many other properties the De Leon Group, assailing the same Decisions of the appellate court.
and it is not difficult to believe that the total value covered reached more The Court also preliminarily denied this petition on the ground that the
than that.[191] In summary, the estimated values and/or purchase prices De Leon Group failed to file the appeal within the reglementary period
at the auction sale of the properties of Urban Bank and its officers and to pay certain fees.[217]
amounted to no less than PhP181,919,190 already. This amounts to
almost six times the value of the award given by the trial court. Otherwise
stated, Pea, as judgment creditor, was overly secured by the levied Despite the denial of the Rule 45 Petition in G. R. No. 145822 filed by
and/or garnished properties for the amount of PhP28,500,000, where the the De Leon Group, the Court nonetheless ordered that the case be
judgment award was still subject of reversal on appeal. consolidated with Urban Banks own Rule 45 Petition in G. R. No.
145817.[218] The Court subsequently gave due course to both of these
On 22 October 2001, Urban Bank, with respect to its pending Rule 45 petitions.[219] In compliance with the Courts Order,[220] Urban
Petition in this Court, moved for the approval of its PhP40,000,000 Bank[221] and the De Leon Group[222] filed their respective Memoranda.
supersedeas bond[192] and requested that the Court stay the execution
pending appeal.[193] Pea opposed the motion on the ground that it had As detailed earlier, the Court granted and approved Urban Banks
already been rendered moot and academic by the sale of the properties supersedeas bond and stayed the execution pending appeal.
of the bank.[194]
Considering the favorable stay of execution pending appeal, EIB, as the
On 23 October 2002, or almost a year after some of the condominium new owner and successor of Urban Bank, immediately wrote to
units were sold in a public auction, EIB, as the successor of Urban Bank, tell[223] the corporate secretary of MSCI not to effect the cancellation or
expressed to the sheriff of RTC-Bago City an intent to redeem the said transfer of Urban Banks three MSCI stock certificates previously sold in
condominium units.[195] Thus, EIB tendered three managers checks in a public auction. [224] In reply, MSCI explained that since there was no
the total amount of PhP22,108,800[196] to redeem the properties that injunction or stay order, it had no other option but to comply with the trial
were previously under the name of Urban Bank.[197] Although the trial courts Order for the transfer. Eventually, however, it could not effect the
court noted the banks Manifestation,[198] the sheriff returned the EIBs transfer of one of the shares to Pea because a club share had already
Page 323

managers checks. Thus, on 29 October 2002, EIB, through a motion, been previously registered in his name, and the clubs bylaws prohibited
was prompted to turn over the checks to the trial court itself.[199] a natural person from owning more than one share.[225]Meanwhile, one

Intelligentia et Scientia Semper Mea

LEGAL ETHICS
of the winning bidders in the public auction sale of the MSCI shares wrote
to the latter to demand that the club share previously owned by Urban
Bank be transferred to him.[226]
On 04 February 2002, considering the conflicting claims of Urban Bank
(through EIB) and the winning bidders of the club shares, MSCI filed a
Motion for Clarification of the Courts Resolution staying the execution
pending appeal.[227]
In its Motion for Clarification dated 06 August 2002, Urban Bank likewise
requested clarification of whether the stay order suspended, as well, its
right to redeem the properties sold at a public auction.[228] The copy of
Urban Banks motion for clarification intended for Pea was mistakenly
sent to the wrong counsel.
In its Resolution dated 13 November 2002, the Court explained that its
earlier stay order prohibited the MSCI from transferring the shares, and
that the one-year period for redemption of the banks properties was
likewise suspended:
WHEREFORE, the Court hereby RESOLVES to clarify that as a
consequence of its approval of the supersedeas bond, the running of
the one-year period for petitioner Urban Bank to redeem the
properties sold at the public auctions held on October 4, 11 and 25,
2001 as well as the consolidation of the titles in favor of the buyers,
is SUSPENDED OR STAYED. MSCI is also prohibited from transferring
petitioner Urban Banks MSCI club shares to the winning bidders in the
execution sale held on October 11, 2001.[229] (Emphasis supplied)
On 09 December 2002, Pea moved that the Courts Resolution be
recalled, because he was not given an opportunity to be heard on Urban
Banks Motion for Clarification, which was sent to a different
counsel.[230] Interposing its objection, the bank argued that the error in
mistakenly sending the Motion for clarification to a different counsel was
by sheer inadvertence,[231] but Pea was nonetheless aware of the
motion, and that the Courts clarification did not create or diminish his
rights in any case.[232]
The Motion for Clarification filed by Urban Bank, the Courts Resolution
dated 13 November 2002 and Peas Omnibus Motion praying for the
recall of the said Resolution became the subject of an administrative
case (Administrative Case No. 6332), which was treated as a separate
matter and later on de-consolidated with the instant Petitions.[233]The
Court had even called for an executive session[234] in which Pea, among
others, appeared and was questioned by the then members of the Courts
First Division, namely retired Chief Justice Hilario Davide, Justices Jose
Vitug, Antonio Carpio and Adolfo Azcuna. Although the Petitions had
earlier been assigned to Justice Carpio, he has since taken no part in
the proceedings of this case and this resulted in the re-raffling of the
Petitions. The transfer and unloading of the case by the subsequently
assigned Justices as well as Peas numerous motions for inhibition
and/or re-raffle has likewise cause considerable delay in the disposition
of the instant Petitions and the Administrative Case.
Unimega, which was the winning bidder of some of the publicly executed
condominium units of Urban Bank, moved to intervene in the case and
to have the Courts same Resolution suspending the one-year period of
redemption of the properties be reconsidered.[235] Unimega claimed that
ownership of the banks titles to the 10 condominium units had already
been transferred to the former at the time the Court issued the
Resolution; and, thus, there was no more execution to be suspended or
stayed. Only Urban Bank[236]opposed the motion[237]of intervenor
Unimega on the ground that the latter was not a buyer in good faith, and
that the purchase price was grossly disproportional to the fair market
value of the condominium units.[238]
The Court eventually granted the Motion to Intervene considering that
the intervenors title to the condominium units purchased at the public
PINEDAPCGRNMAN
auction would be affected, favorably or otherwise, by the judgment of the
Court in this case. However, it held in abeyance the resolution of
intervenors Motion for Reconsideration, which might preempt the
decision with respect to the propriety of execution pending
appeal.[239] Thereafter, the bank adopted its earlier Opposition to the
intervention as its answer to Unimegas petition-in-intervention.[240] Also
in answer thereto, the De Leon Group adopted its earlier Manifestation
and Comment.[241]
Intervenor Unimega then requested that a writ of possession be issued
in its favor covering the 10 condominium units sold during the public
auction.[242] The Court required the parties to file their comments on the
request.[243] The Lim[244] and Borlongan Groups[245] manifested
separately that they would not be affected by a resolution of the request
of intervenor Unimega, since the latter was not among the contending
parties to the incident. Pea similarly interposed no objection to the
issuance of the writ of possession.[246] In contrast, Urban Bank opposed
the application of Unimega on the ground that the latter was not entitled
to possession of the levied properties, because the rules of extrajudicial
foreclosure were not applicable to execution sales under Rule 39, and
that intervenor was also not a buyer in good faith. [247] In a similar vein,
the De Leon Group opposed the application for a writ of possession, and
further argued that the Court had already suspended the running of the
one-year period of redemption in the execution sale.[248] Accordingly,
intervenor Unimega countered that the right of redemption of the levied
properties had already expired without having been exercised by the
judgment debtor.[249]
In summary, the Court shall resolve the substantial issues in the
following: (a) the Petition of Pea (G. R. No. 162562) assailing the CAs
decision on the substantive merits of the case with respect to his claims
of compensation based on an agency agreement; and (b) the Petitions
of Urban Bank (G. R. No. 145817) and the De Leon Group (G R. No.
145822) questioning the propriety of the grant of execution pending
appeal.
OUR RULING
I
Pea is entitled to payment for compensation for services rendered
as agent of Urban Bank, but on the basis of the principles of unjust
enrichment andquantum meruit, and not on the purported oral
contract.
The Court finds that Pea should be paid for services rendered under the
agency relationship that existed between him and Urban Bank based on
the civil law principle against unjust enrichment, but the amount of
payment he is entitled to should be made, again, under the principle
against unjust enrichment and on the basis of quantum meruit.
In a contract of agency, agents bind themselves to render some service
or to do something in representation or on behalf of the principal, with
the consent or authority of the latter.[250] The basis of the civil law
relationship of agency is representation, [251] the elements of which
include the following: (a) the relationship is established by the parties
consent, express or implied; (b) the object is the execution of a juridical
act in relation to a third person; (c) agents act as representatives and not
for themselves; and (d) agents act within the scope of their authority.[252]
Whether or not an agency has been created is determined by the fact
that one is representing and acting for another.[253] The law makes no
presumption of agency; proving its existence, nature and extent is
incumbent upon the person alleging it.[254]
With respect to the status of Atty. Peas relationship with Urban Bank, the
trial and the appellate courts made conflicting findings that shall be
reconciled by the Court. On one end, the appellate court made a
Page 324
definitive ruling that no agency relationship existed at all between Pea
and the bank, despite the services performed by Pea with respect to the
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Pasay property purchased by the bank. Although the Court of Appeals
ruled against an award of agents compensation, it still saw fit to award
Pea with Ph3,000,000 for expenses incurred for his efforts in clearing the
Pasay property of tenants.[255] On the other extreme, the trial court
heavily relied on the sole telephone conversation between Pea and
Urban Banks President to establish that the principal-agent relationship
created between them included an agreement to pay Pea the huge
amount of PhP24,000,000. In its defense, Urban Bank insisted that Pea
was never an agent of the bank, but an agent of ISCI, since the latter, as
seller of the Pasay property committed to transferring it free from tenants.
Meanwhile, Pea argues on the basis of his successful and peaceful
ejectment of the sub-tenants, who previously occupied the Pasay
property.
Based on the evidence on records and the proceedings below, the
Court concludes that Urban Bank constituted Atty. Pea as its agent
to secure possession of the Pasay property. This conclusion,
however, is not determinative of the basis of the amount of payment
that must be made to him by the bank. The context in which the
agency was created lays the basis for the amount of compensation
Atty. Pea is entitled to.
The transactional history and context of the sale between ISCI and Urban
Bank of the Pasay property, and Atty. Peas participation in the transfer
of possession thereof to Urban Bank provide crucial linkages that
establish the nature of the relationship between the lawyer and the
landowner-bank.
The evidence reveals that at the time that the Contract to Sell was
executed on 15 November 1994, and even when the Deed of Absolute
Sale was executed two weeks later on 29 November 1994, as far as
Urban Bank was concerned, Pea was nowhere in the picture. All
discussions and correspondences were between the President and
Corporate Secretary of Urban Bank, on one hand, and the President of
ISCI, on the other. The title to the Pasay property was transferred to
Urban Bank on 5 December 1994. Interestingly, Pea testifies that it was
only on 19 December 1994 that he learned that the land had already
been sold by ISCI to Urban Bank, notwithstanding the fact that Pea was
a director of ISCI. Pea was not asked to render any service for Urban
Bank, neither did he perform any service for Urban Bank at that point.
ISCI undertook in the Contract to Sell, to physically deliver the property
to Urban Bank, within 60 days from 29 November 1994,[256] under
conditions of full and actual possession and control ..., free from tenants,
occupants, squatters or other structures or from any liens,
encumbrances, easements or any other obstruction or impediment to the
free use and occupancy by the buyer of the subject Property or its
exercise of the rights to ownership over the subject Property....[257] To
guarantee this undertaking, ISCI agreed to the escrow provision where
PhP25,000,000 (which is a little over 10% of the value of the Pasay
property) would be withheld by Urban Bank from the total contract price
until there is full compliance with this undertaking.
Apparently to ensure that ISCI is able to deliver the property physically
clean to Urban Bank, it was ISCIs president, Enrique Montilla who
directed on 26 November 1994 one of its directors, Pea, to immediately
recover and take possession of the property upon expiration of the
contract of lease on 29 November 1994.[258] Pea thus first came into the
picture as a director of ISCI who was constituted as its agent to recover
the Pasay property against the lessee as well as the sub-tenants who
were occupying the property in violation of the lease agreement. [259] He
was able to obtain possession of the property from the lessee on the
following day, but the unauthorized sub-tenants refused to vacate the
property.
It was only on 7 December 1994, that Urban Bank was informed of the
services that Pea was rendering for ISCI. The faxed letter from ISCIs
Marilyn Ong reads:
PINEDAPCGRNMAN
Atty. Magdaleno M. Pea, who has been assigned by Isabela Sugar
Company, Inc., to take charge of inspecting the tenants would like to
request an authority similar to this from the Bank, as new owners. Can
you please issue something like this today as he needs this.[260]
Two days later, on 9 December 1994, ISCI sent Urban Bank another
letter that reads:
Dear Mr. Borlongan, I would like to request for an authorization from
Urban Bank as per attached immediately as the tenants are
questioning the authority of the people there who are helping us to
take over possession of the property. (Emphasis supplied)[261]
It is clear from the above that ISCI was asking Urban Bank for help to
comply with ISCIs own contractual obligation with the bank under the
terms of the sale of the Pasay property. Urban Bank could have ignored
the request, since it was exclusively the obligation of ISCI, as the seller,
to deliver a clean property to Urban Bank without any help from the latter.
A full-bodied and confident interpretation of the contracts between ISCI
and Urban Bank should have led the latter to inform the unauthorized
sub-tenants that under its obligation as seller to Urban Bank, it was under
duty and had continuing authority to recover clean possession of the
property, despite the transfer of title. Yet, what unauthorized sub-tenant,
especially in the kind of operations being conducted within the Pasay
property, would care to listen or even understand such argument?
Urban Bank thus chose to cooperate with ISCI without realizing the kind
of trouble that it would reap in the process. In an apparent attempt to
allow the efforts of ISCI to secure the property to succeed, it recognized
Peas role in helping ISCI, but stopped short of granting him authority to
act on its behalf. In response to the two written requests of ISCI, Urban
Bank sent this letter to Pea on 15 December 1994:
This is to advise you that we have noted the engagement of your services
by Isabela Sugar Company to recover possession of the Roxas
Boulevard property formerly covered by TCT No. 5382, effective
November 29, 1994. It is understood that your services have been
contracted by and your principal remains to be the Isabela Sugar
Company, which as seller of the property and under the terms of our
Contract to Sell dated November 29, 1994, has committed to deliver the
full and actual possession of the said property to the buyer, Urban Bank,
within the stipulated period. [262] (Emphasis supplied)
Up to this point, it is unmistakable that Urban Bank was staying clear
from making any contractual commitment to Pea and conveyed its sense
that whatever responsibilities arose in retaining Pea were to be
shouldered by ISCI.
According to the RTC-Bago City, in the reversed Decision, Atty. Pea only
knew of the sale between ISCI and Urban Bank at the time the RTC-
Pasay City recalled the TRO and issued a break-open order:
when information reached the (Pasay City) judge that the Pasay property
had already been transferred by ISCI to Urban Bank, the trial court
recalled the TRO and issued a break-open order for the property.
According to Pea, it was the first time that he was apprised of the sale of
the land by ISCI and of the transfer of its title in favor of the bank.[263]
There is something contradictory between some of the trial courts factual
findings and Peas claim that it was only on 19 December 1994 that he
first learned of the sale of the property to Urban Bank. It is difficult to
believe Pea on this point considering: (1) that he was a board director of
ISCI and a sale of this significant and valuable property of ISCI requires
Page 325
the approval of the board of directors of ISCI; and (2) that ISCI twice
requested Urban Bank for authority to be issued in his favor (07 and 9
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
December 1994), 12 and 10 days before 19 December 1994, since it
would be contrary to human experience for Pea not to have been
informed by an officer of ISCI beforehand that a request for authority for
him was being sent to Urban Bank.
The sequence of fast-moving developments, edged with a sense of
panic, with respect to the decision of the RTC-Pasay City to recall the
temporary restraining order and issue a break-open order on 19
December 1994 in the First Injunction Complaint, is highly enlightening
to this Court.
First, Pea allegedly called up the president of ISCI, Montilla, who,
according to Pea, confirmed to him that the Pasay property had indeed
been sold to Urban Bank.
Second, Pea allegedly told Montilla that he (Pea) would be withdrawing
his guards from the property because of the break-open order from the
RTC-Pasay City.
Third, Montilla requested Pea to suspend the withdrawal of the guards
while ISCI gets in touch with Urban Bank.
Fourth, apparently in view of Montillas efforts, Bejasa, an officer of Urban
Bank called Pea and according to the latter, told him that Urban Bank
would continue retaining his services and for him to please continue with
his effort to secure the property.
Fifth, this statement of Bejasa was not enough for Pea and he insisted
that he be enabled to talk with no less than the President of Urban Bank,
Borlongan. At this point, Bejasa gave him the phone number of
Borlongan.
Sixth, immediately after the conversation with Bejasa, Pea calls
Borlongan and tells Borlongan that violence might erupt in the property
because the Pasay City policemen, who were sympathetic to the
tenants, were threatening to force their way through the property.
At this point, if indeed this conversation took place, which Borlongan
contests, what would have been the response of Borlongan? Any
prudent president of a bank, which has just purchased a
PhP240,000,000 property plagued by unauthorized and unruly sub-
tenants of the previous owner, would have sought to continue the
possession of ISCI, thru Pea, and he would have agreed to the
reasonable requests of Pea. Borlongan could also have said that the
problem of having the sub-tenants ejected is completely ISCIs and ISCI
should resolve the matter on its own that without bothering the bank, with
all its other problems. But the specter of violence, especially as night was
approaching in a newly-bought property of Urban Bank, was not
something that any publicly-listed bank would want publicized. To the
extent that the violence could be prevented by the president of Urban
Bank, it is expected that he would opt to have it prevented.
But could such response embrace the following legal consequences as
Pea claims to have arisen from the telephone conversation with
Borlongan: (1) A contract of agency was created between Pea and Urban
Bank whereby Borlongan agreed to retain the services of Pea directly;
(2) This contract of agency was to be embodied in a written letter of
authority from Urban Bank; and (3) The agency fee of Pea was to be
10% of the market value as attorneys fees and compensation and
reimbursement of all expenses of Pea from the time he took over the
land until possession is turned over to Urban Bank.
This Court concludes that the legal consequences described in
statements (1) and (2) above indeed took place and that the facts support
them. However, the evidence does not support Peas claim that Urban
PINEDAPCGRNMAN
Bank agreed to attorneys fees and compensation of 10% of the market
value of the property.
Urban Banks letter dated 19 December 1994 confirmed in no uncertain
terms Peas designation as its authorized representative to secure and
maintain possession of the Pasay property against the tenants. Under
the terms of the letter, petitioner-respondent bank confirmed his
engagement (a) to hold and maintain possession of the Pasay
property; (b) to protect the same from former tenants, occupants or any
other person who are threatening to return to the said property and/or
interfere with your possession of the said property for and in our behalf;
and (c) to represent the bank in any instituted court action intended
to prevent any intruder from entering or staying in the premises.[264]
These three express directives of petitioner-respondent banks letter
admits of no other construction than that a specific and special authority
was given to Pea to act on behalf of the bank with respect to the latters
claims of ownership over the property against the tenants. Having
stipulated on the due execution and genuineness of the letter during
pretrial,[265] the bank is bound by the terms thereof and is subject to the
necessary consequences of Peas reliance thereon. No amount of denial
can overcome the presumption that we give this letter that it means what
it says.
In any case, the subsequent actions of Urban Bank resulted in the
ratification of Peas authority as an agent acting on its behalf with respect
to the Pasay property. By ratification, even an unauthorized act of an
agent becomes an authorized act of the principal.[266]
Both sides readily admit that it was Pea who was responsible for clearing
the property of the tenants and other occupants, and who turned over
possession of the Pasay property to petitioner-respondent
bank.[267] When the latter received full and actual possession of the
property from him, it did not protest or refute his authority as an agent to
do so. Neither did Urban Bank contest Peas occupation of the premises,
or his installation of security guards at the site, starting from the expiry of
the lease until the property was turned over to the bank, by which time it
had already been vested with ownership thereof. Furthermore, when Pea
filed the Second Injunction Complaint in the RTC-Makati City under the
name of petitioner-respondent bank, the latter did not interpose any
objection or move to dismiss the complaint on the basis of his lack of
authority to represent its interest as the owner of the property. When he
successfully negotiated with the tenants regarding their departure from
its Pasay property, still no protest was heard from it. After possession
was turned over to the bank, the tenants accepted PhP1,500,000 from
Pea, in full and final settlement of their claims against Urban Bank, and
not against ISCI.[268]
In all these instances, petitioner-respondent bank did not repudiate the
actions of Pea, even if it was fully aware of his representations to third
parties on its behalf as owner of the Pasay property. Its tacit
acquiescence to his dealings with respect to the Pasay property and the
tenants spoke of its intent to ratify his actions, as if these were its own.
Even assuming arguendo that it issued no written authority, and that the
oral contract was not substantially established, the bank duly ratified his
acts as its agent by its acquiescence and acceptance of the benefits,
namely, the peaceful turnover of possession of the property free from
sub-tenants.
Even if, however, Pea was constituted as the agent of Urban Bank, it
does not necessarily preclude that a third party would be liable for the
payment of the agency fee of Pea. Nor does it preclude the legal fact that
Pea while an agent of Urban Bank, was also an agent of ISCI, and that
his agency from the latter never terminated. This is because the authority
given to Pea by both ISCI and Urban Bank was common to secure the
Page 326
clean possession of the property so that it may be turned over to Urban
Bank. This is an ordinary legal phenomenon that an agent would be an
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
agent for the purpose of pursuing a shared goal so that the common
objective of a transferor and a new transferee would be met.
Indeed, the Civil Code expressly acknowledged instances when two or
more principals have granted a power of attorney to an agent for
a common transaction.[269] The agency relationship between an agent
and two principals may even be considered extinguished if the object or
the purpose of the agency is accomplished.[270] In this case, Peas
services as an agent of both ISCI and Urban Bank were engaged for one
shared purpose or transaction, which was to deliver the property free
from unauthorized sub-tenants to the new owner a task that Pea was
able to achieve and is entitled to receive payment for.
That the agency between ISCI and Pea continued, that ISCI is to
shoulder the agency fee and reimbursement for costs of Pea, and that
Urban Bank never agreed to pay him a 10% agency fee is established
and supported by the following:
First, the initial agency relationship between ISCI and Pea persisted. No
proof was ever offered that the letter of 26 November 1994 of Mr. Montilla
of ISCI to Pea, for the latter to immediately recover and take possession
of the property upon expiration of the contract of lease on 29 November
1994 was terminated. It is axiomatic that the appointment of a new agent
for the same business or transaction revokes the previous agency from
the day on which notice thereof was given to the former agent.[271] If it is
true that the agency relationship was to be borne by Urban Bank alone,
Pea should have demonstrated that his previous agency relationship
with ISCI is incompatible with his new relationship with Urban Bank, and
was thus terminated.
Second, instead, what is on the record is that ISCI confirmed the
continuation of this agency between Pea and itself and committed to pay
for the services of Pea, in its letter to Urban Bank dated 19 December
1994 which reads:
In line with our warranties as the Seller of the said property and our
undertaking to deliver to you the full and actual possession and control
of said property, free from tenants, occupants or squatters and from any
obstruction or impediment to the free use and occupancy of the
property by Urban Bank, we have engaged the services of Atty.
Magdaleno M. Pea to hold and maintain possession of the property
and to prevent the former tenants or occupants from entering or
returning to the premises. In view of the transfer of the ownership of
the property to Urban Bank, it may be necessary for Urban Bank to
appoint Atty. Pea likewise as its authorized representative for purposes
of holding/maintaining continued possession of the said property and to
represent Urban Bank in any court action that may be instituted for the
abovementioned purposes.
It is understood that any attorneys fees, cost of litigation and any
other charges or expenses that may be incurred relative to the
exercise by Atty. Pea of his abovementioned duties shall be for the
account of Isabela Sugar Company and any loss or damage that may
be incurred to third parties shall be answerable by Isabela Sugar
Company.[272] (Emphasis supplied)
Third, Pea has never shown any written confirmation of his 10% agency
fee, whether in a note, letter, memorandum or board resolution of Urban
Bank. An agency fee amounting to PhP24,000,000 is not a trifling
amount, and corporations do not grant their presidents unilateral
authority to bind the corporation to such an amount, especially not a
banking corporation which is closely supervised by the BSP for being a
business seriously imbued with public interest. There is nothing on
record except the self-serving testimony of Pea that Borlongan agreed
to pay him this amount in the controverted telephone conversation.
Fourth, while ordinarily, uncontradicted testimony will be accorded its full
weight, we cannot grant full probative value to the testimony of Pea for
the following reasons: (a) Pea is not a credible witness for testifying that
PINEDAPCGRNMAN
he only learned of the sale of the property of 19 December 1994 when
the acts of ISCI, of Urban Bank and his own up to that point all indicated
that he must have known about the sale to Urban Bank; and (b) it is
incredible that Urban Bank will agree to add another PhP24,000,000 to
the cost of the property by agreeing to the agency fee demanded by Pea.
No prudent and reasonable person would agree to expose his
corporation to a new liability of PhP24,000,000 even if, in this case, a
refusal would lead to the Pasay City policemen and unauthorized sub-
tenants entering the guarded property and would possibly erupt in
violence.
Peas account of an oral agreement with Urban Bank for the payment of
PhP24,000,000 is just too much for any court to believe. Whatever may
be the agreement between Pea and ISCI for compensation is not before
this Court. This is not to say, however, that Urban Bank has no liability
to Pea. It has. Payment to him is required because the Civil Code
demands that no one should be unjustly enriched at the expense of
another. This payment is to be measured by the standards of quantum
meruit.
Amount of Compensation
Agency is presumed to be for compensation. But because in this case
we find no evidence that Urban Bank agreed to pay Pea a specific
amount or percentage of amount for his services, we turn to the principle
against unjust enrichment and on the basis of quantum meruit.
Since there was no written agreement with respect to the compensation
due and owed to Atty. Pea under the letter dated 19 December 1994, the
Court will resort to determining the amount based on the well-established
rules on quantum meruit.
Agency is presumed to be for compensation.[273] Unless the contrary
intent is shown, a person who acts as an agent does so with the
expectation of payment according to the agreement and to the services
rendered or results effected.[274] We find that the agency of Pea
comprised of services ordinarily performed by a lawyer who is tasked
with the job of ensuring clean possession by the owner of a property. We
thus measure what he is entitled to for the legal services rendered.
A stipulation on a lawyers compensation in a written contract for
professional services ordinarily controls the amount of fees that the
contracting lawyer may be allowed to collect, unless the court finds the
amount to be unconscionable.[275] In the absence of a written contract for
professional services, the attorneys fees are fixed on the basis
ofquantum meruit,[276] i.e., the reasonable worth of the attorneys
services.[277] When an agent performs services for a principal at the
latters request, the law will normally imply a promise on the part of the
principal to pay for the reasonable worth of those services.[278] The intent
of a principal to compensate the agent for services performed on behalf
of the former will be inferred from the principals request for the
agents.[279]
In this instance, no extra-ordinary skills employing advanced legal
training nor sophisticated legal maneuvering were required to be
employed in ejecting 23 sub-tenants who have no lease contract with the
property owner, and whose only authority to enter the premises was
unlawfully given by a former tenant whose own tenancy has clearly
expired. The 23 sub-tenants operated beer houses and nightclubs,
ordinary retail establishments for which no sophisticated structure
prevented easy entry. After Pea succeeded in locking the gate of the
compound, the sub-tenants would open the padlock and resume their
Page 327
businesses at night. Indeed, it appears that only security guards, chains
and padlocks were needed to keep them out. It was only the alleged
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
connivance of Pasay City policemen that Peas ability to retain the
possession was rendered insecure. And how much did it take Pea to
enter into a settlement agreement with them and make all these
problems go away? By Peas own account, PhP1,500,000 only. That
means that each tenant received an average of PhP65,217.40 only.
Surely, the legal services of Pea cannot be much more than what the
sub-tenants were willing to settle for in the first place. We therefore award
him the equivalent amount of PhP1,500,000 for the legal and other
related services he rendered to eject the illegally staying tenants of
Urban Banks property.
The Court of Appeals correctly reversed the trial court and found it to
have acted with grave abuse of discretion in granting astounding
monetary awards amounting to a total of PhP28,500,000 without any
basis.[280] For the lower court to have latched on to the self-serving claims
of a telephone agreement as sufficient support for extending a multi-
million peso award is highly irregular. Absent any clear basis for the
amount of the lawyers compensation, the trial court should have
instinctively resorted to quantum meruit, instead of insisting on a figure
with circumstantial and spurious justification.
We cannot also agree with the Decision penned by Judge Edgardo L.
Catilo characterizing Penas 10% fee as believable because it is nearly
congruent to the PhP25 Million retention money held in escrow for ISCI
until a clean physical and legal turn-over of the property is effected:
We now come to the reasonableness of the compensation prayed for by
the plaintiff which is 10% of the current market value which defendants
claim to be preposterous and glaringly excessive. Plaintiff [Pea] testified
that defendant Borlongan agreed to such an amount and this has not
been denied by Ted Borlongan. The term current market value of the
property is hereby interpreted by the court to mean the current market
value of the property at the time the contract was entered into. To
interpret it in accordance with the submission of the plaintiff that it is the
current market value of the property at the time payment is made would
be preposterous. The only evidence on record where the court can
determine the market value of the property at the time the contract of
agency was entered into between plaintiff and defendant is the
consideration stated in the sales agreement between Isabela Sugar
Company, Inc. and Urban bank which isP241,612,000.00. Ten percent
of this amount is a reasonable compensation of the services rendered
by the plaintiff considering the no cure, no pay arrangement between the
parties and the risks which plaintiff had to undertake.[281]
In the first place, the Decision of Judge Catilo makes Peas demand of
an agency fee of PhP24 Million, an additional burden on Urban Bank.
The Decision does not make the retention money responsible for the
same, or acquit Urban Bank of any liability to ISCI if it pays the PhP24
Million directly to Pena instead of ISCI. In the second place, the amount
of money that is retained by transferees of property transactions while
the transferor is undertaking acts to ensure a clean and peaceful transfer
to the transferee does not normally approximate a one-to-one
relationship to the services of ejecting unwanted occupants. They may
be inclusive of other costs, and not only legal costs, with enough
allowances for contingencies, and may take into consideration other
liabilities as well. The amount can even be entirely arbitrary, and may
have been caused by the practice followed by Urban Bank as advised
by its officers and lawyers or by industry practice in cases where an
expensive property has some tenancy problems. In other words, Judge
Catilos statement is a non sequitur, is contrary to normal human
experience, and sounds like an argument being made to fit Peas demand
for a shocking pay-out.
In any case, 10% of the purchase price of the Pasay property a
staggering PhP24,161,200 is an unconscionable amount, which we
find reason to reduce. Neither will the Court accede to the settlement
offer of Pea to Urban Bank of at least PhP38,000,000 for alleged legal
PINEDAPCGRNMAN
expenses incurred during the course of the proceedings,[282] an amount
that he has not substantiated at any time.
Lawyering is not a business; it is a profession in which duty to public
service, not money, is the primary consideration. [283] The principle
of quantum meruit applies if lawyers are employed without a price
agreed upon for their services, in which case they would be entitled to
receive what they merit for their services, or as much as they have
earned.[284] In fixing a reasonable compensation for the services
rendered by a lawyer on the basis of quantum meruit, one may consider
factors such as the time spent and extent of services rendered; novelty
and difficulty of the questions involved; importance of the subject matter;
skill demanded; probability of losing other employment as a result of
acceptance of the proffered case; customary charges for similar
services; amount involved in the controversy and the resulting benefits
for the client; certainty of compensation; character of employment; and
professional standing of the lawyer.[285]
Hence, the Court affirms the appellate courts award of PhP3,000,000 to
Pea, for expenses incurred corresponding to the performance of his
services. An additional award of PhP1,500,000 is granted to him for the
services he performed as a lawyer in securing the rights of Urban Bank
as owner of the Pasay property.
II
The corporate officers and directors of Urban Bank are not
solidarily or personally liable with their properties for the corporate
liability of Urban Bank to Atty. Pea.
The obligation to pay Peas compensation, however, falls solely on Urban
Bank. Absent any proof that individual petitioners as bank officers acted
in bad faith or with gross negligence or assented to a patently unlawful
act, they cannot be held solidarily liable together with the corporation for
services performed by the latters agent to secure possession of the
Pasay property. Thus, the trial court had indeed committed grave abuse
of discretion when it issued a ruling against the eight individual defendant
bank directors and officers and its Decision should be absolutely
reversed and set aside.
A corporation, as a juridical entity, may act only through its directors,
officers and employees.[286] Obligations incurred as a result of the acts
of the directors and officers as corporate agents are not their personal
liabilities but those of the corporation they represent.[287] To hold a
director or an officer personally liable for corporate obligations, two
requisites must concur: (1) the complainant must allege in the complaint
that the director or officer assented to patently unlawful acts of the
corporation, or that the officer was guilty of gross negligence or bad faith;
and (2) the complainant must clearly and convincingly prove such
unlawful acts, negligence or bad faith.[288] To hold a director, a trustee or
an officer personally liable for the debts of the corporation and, thus,
pierce the veil of corporate fiction, bad faith or gross negligence by the
director, trustee or officer in directing the corporate affairs must be
established clearly and convincingly.[289]
Pea failed to allege and convincingly show that individual defendant bank
directors and officers assented to patently unlawful acts of the bank, or
that they were guilty of gross negligence or bad faith. Contrary to his
claim, the Complaint[290] in the lower court never alleged that individual
defendants acquiesced to an unlawful act or were grossly negligent or
acted in bad faith.[291] Neither is there any specific allegation of gross
negligence or action in bad faith that is attributable to the individual
defendants in performance of their official duties.
In any event, Pea did not adduce any proof that the eight individual
defendants performed unlawful acts or were grossly negligent or in bad
faith. Aside from the general allegation that they were corporate officers
Page 328
or members of the board of directors of Urban Bank, no specific acts
were alleged and proved to warrant a finding of solidary liability. At
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LEGAL ETHICS
most, petitioners Borlongan, Bejasa and Manuel were identified as those
who had processed the agency agreement with Pea through their
telephone conversations with him and/or written authorization letter.
Aside from Borlongan, Bejasa and Manuel, Atty. Pea in the complaint
pointed to no specific act or circumstance to justify the inclusion of Delfin
C. Gonzalez, Jr., Benjamin L. de Leon, P. Siervo H. Dizon, Eric L. Lee,
and Ben T. Lim, Jr., except for the fact that they were members of the
Board of Directors of Urban Bank at that time. That the five other
members of the Board of Directors were excluded from Peas complaint
highlights the peculiarity of their inclusion. What is more, the complaint
mistakenly included Ben Y. Lim, Jr., who had not even been a member
of the Board of Directors of Urban Bank. In any case, his father and
namesake, Ben T. Lim, Sr., who had been a director of the bank at that
time, had already passed away in 1997.
In ruling for the solidary liability of the other bank directors, the decision
of the trial court hinged solely on the purported admission of Arturo
Manuel, Jr., that the transactions with Atty. Pea were approved by the
Board of Directors:
In this case, plaintiff testified as to the personal participation of
defendants Ted Borlongan and Corazon Bejasa in the subject
transaction. On the other hand, with respect to the other defendants, it
was the defendants themselves, through witness Arturo Manuel,
Jr., who admitted that all the transactions involved in this case were
approved by the board of directors. Thus, the court has sufficient
basis to hold the directors jointly and severally liable with defendant
Urban Bank, Inc.[292] (Emphasis supplied)
The Decision of the RTC-Bago City must be utterly rejected on this point
because its conclusion of any cause of action, much less actual legal
liability on the part of Urban Banks corporate officers and directors are
shorn of any factual finding. That they assented to the transactions of the
bank with respect to Atty. Peas services without any showing that these
corporate actions were patently unlawful or that the officers were guilty
of gross negligence or bad faith is insufficient to hold them solidarily liable
with Urban Bank. It seems absurd that the trial court will hold the
impleaded selected members of the Board of Directors only, but not the
others who also purportedly approved the transactions. Neither is the
reason behind the finding of solidariness with Urban Bank in such liability
explained at all. It is void for completely being devoid of facts and the law
on which the finding of liability is based.
The Court of Appeals correctly rejected the claim of personal liability
against the individual petitioners when it held as follows:
The plaintiff-appellees complaint before the court a quo does not point to
any particular act of either one or all of the defendants-appellants that
will subject them to personal liability. His complaint merely asserts that
defendant Borlongan and Atty. Bejasa acted for and in behalf of Urban
Bank in securing his services in protecting the banks newly acquired
property. Hence, We cannot allow the same.[293]
Pea had argued that individual defendant bank directors and officers
should be held personally and solidarily liable with petitioner-respondent
bank, since they failed to argue for limited corporate liability.[294] The trial
court subscribed to his reasoning and held that the failure to resort to the
said defense constituted a waiver on the part of individual
defendants.[295] The Court is not persuaded.
As the complainant on the trial court level, Pea carried the burden of
proving that the eight individual defendants performed specific acts that
PINEDAPCGRNMAN
would make them personally liable for the obligations of the corporation.
This he failed to do. He cannot capitalize on their alleged failure to offer
a defense, when he had not discharged his responsibility of establishing
their personal liabilities in the first place. This Court cannot sustain the
individual liabilities of the bank officers when Pea, at the onset, has not
persuasively demonstrated their assent to patently unlawful acts of the
bank, or that they were guilty of gross negligence or bad faith, regardless
of the weaknesses of the defenses raised. This is too basic a
requirement that this Court must demand sufficient proof before we can
disregard the separate legal personality of the corporation from its
offices.
Hence, only Urban Bank, not individual defendants, is liable to pay Peas
compensation for services he rendered in securing possession of the
Pasay property. Its liability in this case is, however, without prejudice to
its possible claim against ISCI for reimbursement under their separate
agreements.
III
Considering the absolute nullification of the trial courts Decision,
the proceedings arising from the execution pending appeal based
on the said Decision is likewise completely vacated.
Since the trial courts main Decision awarding PhP28,500,000 in favor of
Pea has been nullified above, the execution pending appeal attendant
thereto, as a result, no longer has any leg to stand on and is thus
completely vacated.
To recall, prior to the filing of Urban Bank of its notice of appeal in the
main case,[296] Pea moved on 07 June 1999 for execution pending
appeal[297] of the Decision,[298] which had awarded him a total of
PhP28,500,000 in compensation and damages.[299] In supporting his
prayer for discretionary execution, Pea cited no other reason than the
pending separate civil action for collection filed against him by a
creditor, who was demanding payment of a PhP3,000,000
loan.[300]According to him, he had used the proceeds of the loan for
securing the banks Pasay property.[301] In opposition to the motion,
Urban Bank countered that the collection case was not a sufficient
reason for allowing execution pending appeal.[302]
Favorably acting on Peas motion, the RTC-Bago City, through Judge
Henry J. Trocino,[303] issued a Special Order authorizing execution
pending appeal on the basis of Peas indebtedness to his creditor-
friend.[304] In accordance with this Special Order, Atty. Josephine Mutia-
Hagad, the clerk of court and ex officio sheriff, expeditiously issued a
Writ of Execution on the same day.[305] The trial courts Special Order and
Writ of Execution were the subjects of a Rule 65 Petition filed by Urban
Bank with the CA.[306]
Both the Special Order and Writ of Execution are nullified for two
reasons:
(1) Since the Decision of the RTC-Bago City is completely
vacated, all its issuances pursuant to the Decision, including the Special
Order and the Writ of Execution are likewise vacated; and
(2) The Special Order authorizing execution pending appeal
based on the collection suit filed against Atty. Pea had no basis under
the Rules of Court, and the same infirmity thus afflicts the Writ of
Execution issued pursuant thereto.
Since the Decision of the RTC-Bago City is vacated, all orders and writs
pursuant thereto are likewise vacated.
Page 329
Considering that the Special Order and Writ of Execution was a result of
the trial courts earlier award of PhP28,500,000, the nullification or
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LEGAL ETHICS
complete reversal of the said award necessarily translates to the
vacation as well of the processes arising therefrom, including all the
proceedings for the execution pending appeal.
Considering the unconscionable award given by the trial court and the
unjustified imposition of solidary liability against the eight bank officers,
the Court is vacating the Decision of the RTC-Bago City Decision. The
trial court erroneously made solidarily liable Urban Banks directors and
officers without even any allegations, much less proof, of any acts of bad
faith, negligence or malice in the performance of their duties. In addition,
the trial court mistakenly anchored its astounding award of damages
amounting PhP28,500,000 on the basis of the mere account of Atty. Pea
of a telephone conversation, without even considering the surrounding
circumstances and the sheer disproportion to the legal services rendered
to the bank.
A void judgment never acquires finality.[307] In contemplation of law, that
void decision is deemed non-existent.[308] Quod nullum est, nullum
producit effectum.[309]Hence, the validity of the execution pending appeal
will ultimately hinge on the courts findings with respect to the decision in
which the execution is based.
Although discretionary execution can proceed independently while the
appeal on the merits is pending, the outcome of the main case will greatly
impact the execution pending appeal, especially in instances where as
in this case, there is a complete reversal of the trial courts decision. Thus,
if the decision on the merits is completely nullified, then the concomitant
execution pending appeal is likewise without any effect. In fact, the Rules
of Court expressly provide for the possibility of reversal, complete or
partial, of a final judgment which has been executed on
appeal.[310] Precisely, the execution pending appeal does not bar the
continuance of the appeal on the merits, for the Rules of Court explicitly
provide for restitution according to equity and justice in case the
executed judgment is reversed on appeal.[311]
Considering that the Decision of the RTC-Bago City has been completely
vacated and declared null and void, it produces no effect whatsoever.
Thus, the Special Order and its concomitant Writ of Execution pending
appeal is likewise annulled and is also without effect. Consequently, all
levies, garnishment and sales executed pending appeal are declared null
and void, with the concomitant duty of restitution under the Rules of
Court, as will be discussed later on.
In any case, the trial courts grant of execution pending appeal lacks
sufficient basis under the law and jurisprudence.
We rule that the pendency of a collection suit by a third party creditor
which credit was obtained by the winning judgment creditor in another
case, is not a sufficiently good reason to allow execution pending appeal
as the Rules of Court provide. Execution pending appeal is an
extraordinary remedy allowed only when there are reasons to believe
that the judgment debtor will not be able to satisfy the judgment debt if
the appeals process will still have to be awaited. It requires proof of
circumstances such as insolvency or attempts to escape, abscond or
evade a just debt.
In Florendo v. Paramount Insurance, Corp.,[312] the Court explained that
the execution pending appeal is an exception to the general rule that
execution issues as a matter of right, when a judgment has become final
and executory:
As such exception, the courts discretion in allowing it must be strictly
construed and firmly grounded on the existence of good reasons. Good
reasons, it has been held, consist of compelling circumstances that
justify immediate execution lest the judgment becomes illusory.
The circumstances must be superior, outweighing the injury or damages
PINEDAPCGRNMAN
that might result should the losing party secure a reversal of the
judgment. Lesser reasons would make of execution pending appeal,
instead of an instrument of solicitude and justice, a tool of oppression
and inequity. (Emphasis supplied)
Indeed, the presence or the absence of good reasons remains the
yardstick in allowing the remedy of execution pending appeal, which
should consist of exceptional circumstances of such urgency as to
outweigh the injury or damage that the losing party may suffer, should
the appealed judgment be reversed later.[313] Thus, the Court held that
even the financial distress of the prevailing company is not sufficient
reason to call for execution pending appeal:
In addressing this issue, the Court must stress that the execution of a
judgment before its finality must be founded upon good reasons. The
yardstick remains the presence or the absence of good reasons
consisting of exceptional circumstances of such urgency as to outweigh
the injury or damage that the losing party may suffer, should the
appealed judgment be reversed later. Good reason imports a superior
circumstance that will outweigh injury or damage to the adverse party. In
the case at bar, petitioner failed to show paramount and compelling
reasons of urgency and justice. Petitioner cites as good reason merely
the fact that it is a small-time building contractor that could ill-afford the
protracted delay in the reimbursement of the advances it made for the
aforesaid increased costs of . . . construction of the [respondent's]
buildings.
Petitioner's allegedly precarious financial condition, however, is
not by itself a jurisprudentially compelling circumstance warranting
immediate execution. The financial distress of a juridical entity is not
comparable to a case involving a natural person such as a very old and
sickly one without any means of livelihood, an heir seeking an order for
support and monthly allowance for subsistence, or one who dies.
Indeed, the alleged financial distress of a corporation does not outweigh
the long standing general policy of enforcing only final and executory
judgments. Certainly, a juridical entity like petitioner corporation has,
other than extraordinary execution, alternative remedies like loans,
advances, internal cash generation and the like to address its precarious
financial condition. (Emphasis supplied)
In Philippine Bank of Communications v. Court of Appeals,[314] the Court
denied execution pending appeal to a juridical entity which allegedly was
in financial distress and was facing civil and criminal suits with respect to
the collection of a sum of money. It ruled that the financial distress of the
prevailing party in a final judgment which was still pending appeal may
not be likened to the situation of a natural person who is ill, of advanced
age or dying as to justify execution pending appeal:
It is significant to stress that private respondent Falcon is a juridical entity
and not a natural person. Even assuming that it was indeed in
financial distress and on the verge of facing civil or even criminal
suits, the immediate execution of a judgment in its favor pending
appeal cannot be justified as Falcons situation may not be likened
to a case of a natural person who may be ill or may be of advanced
age. Even the danger of extinction of the corporation will not per
se justify a discretionary execution unless there are showings of other
good reasons, such as for instance, impending insolvency of the adverse
party or the appeal being patently dilatory. But even as to the latter
reason, it was noted in Aquino vs. Santiago (161 SCRA 570 [1988]), that
it is not for the trial judge to determine the merit of a decision he rendered
as this is the role of the appellate court. Hence, it is not within
competence of the trial court, in resolving a motion for execution pending
appeal, to rule that the appeal is patently dilatory and rely on the same
as its basis for finding good reason to grant the motion. Only an appellate
court can appreciate the dilatory intent of an appeal as an additional good
reason in upholding an order for execution pending appeal which may
have been issued by the trial court for other good reasons, or in cases
Page 330
where the motion for execution pending appeal is filed with the appellate
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LEGAL ETHICS
court in accordance with Section 2, paragraph (a), Rule 39 of the 1997
Rules of Court.
What is worse, only one case was actually filed against Falcon and this
is the complaint for collection filed by Solidbank. The other cases are
impending, so it is said. Other than said Solidbank case, Falcons
survival as a body corporate cannot be threatened by anticipated
litigation. This notwithstanding, and even assuming that there was a
serious threat to Falcons continued corporate existence, we hold that it
is not tantamount nor even similar to an impending death of a natural
person. The material existence of a juridical person is not on the same
plane as that of human life. The survival of a juridical personality is clearly
outweighed by the long standing general policy of enforcing only final
and executory judgments. (Emphasis supplied)
In this case, the trial court supported its discretionary grant of execution
based on the alleged collection suit filed against Pea by his creditor friend
for PhP3,000,000:
It has been established that the plaintiff secured the loan for the purpose
of using the money to comply with the mandate of defendant bank to
hold and maintain possession of the parcel of land in Pasay City and to
prevent intruders and former tenants from occupying the said property.
The purpose of the loan was very specific and the same was made
known to defendant bank through defendant Teodoro Borlongan. The
loan was not secured for some other purpose. Truth to tell, the plaintiff
accomplished his mission in clearing the property of tenants, intruders
and squatters, long before the deadline given him by the defendant bank.
The plaintiff was assured by no less than the President of defendant bank
of the availability of funds for his compensation and reimbursement of
his expenses. Had he been paid by defendant bank soon after he had
fulfilled his obligation, he could have settled his loan obligation with his
creditor.
Defendants were benefitted by the services rendered by the plaintiff.
While plaintiff has complied with the undertaking, the defendants,
however, failed to perform their obligation to the plaintiff.
The plaintiff stands to suffer greatly if the collection case against
him is not addressed. Firstly, as shown in Exhibit C, plaintiffs total
obligation with Roberto Ignacio as of May 1999 is PhP24,192,000.00.
This amount, if left unpaid, will continue to increase due to interest
charges being imposed by the creditor to the prejudice of
plaintiff. Secondly, a preliminary attachment has already been issued
and this would restrict the plaintiff from freely exercising his rights over
his property during the pendency of the case.
In their opposition, defendants claim that plaintiffs indebtedness is a
ruse, however, defendants failed to adduce evidence to support its claim.
The court finds that the pendency of the case for collection of money
against plaintiff is a good reason for immediate execution. [315]
The mere fact that Atty. Pea was already subjected to a collection suit
for payment of the loan proceeds he used to perform his services for
Urban Bank is not an acceptable reason to order the execution pending
appeal against the bank. Financial distress arising from a lone collection
suit and not due to the advanced age of the party is not an urgent or
compelling reason that would justify the immediate levy on the properties
of Urban Bank pending appeal. That Pea would made liable in the
collection suit filed by his creditor-friend would not reasonably result in
rendering illusory the final judgment in the instant action for agents
compensation.
Peas purported difficulty in paying the loan proceeds used to perform his
services does not outweigh the injury or damages that might result
should Urban Bank obtain a reversal of the judgment, as it did in this
case. Urban Bank even asserts that the collection suit filed against Pea
was a mere ruse to provide justification for the execution pending appeal,
no matter how flimsy.[316] As quoted above, the trial court noted Atty.
Peas total obligation to his creditor-friend as of May 1999 was already
PINEDAPCGRNMAN
the incredible amount of PhP24,192,000.00, even when the Complaint
dated 03 April 1999 itself, which spawned the collection suit included
only a prayer for payment of PhP3,500,000 with attorneys fees of
PhP100,000.[317] It seems absurd that Atty. Pea would agree to obtaining
a loan from his own friend, when the Promissory Notes provided for a
penalty of 5% interest per month or 60% per annum for delay in the
payment.[318] It sounds more like a creative justification of the immediate
execution of the PhP28.5 Million judgment notwithstanding the appeal.
In fact, the Court of Appeals noted Atty. Peas admission of sufficient
properties to answer for any liability arising from the collection suit arising
from his creditor-friend. In initially denying the execution pending appeal,
the appellate court held that:
On the other hand, private respondents claim that the only way he could
pay his indebtedness to Roberto Ignacio is through the money that he
expects to receive from petitioners in payment of his services is belied
by his testimony at the hearing conducted by the trial court on the motion
for execution pending appeal wherein petitioners were able to secure an
admission from him that he has some assets which could be attached by
Roberto Ignacio and that he would probably have other assets left even
after the attachment.[319]
Hence, to rule that a pending collection suit against Atty. Pea, which has
not been shown to result in his insolvency, would be to encourage
judgment creditors to indirectly and indiscriminately instigate collection
suits or cite pending actions, related or not, as a good reason to routinely
avail of the remedy of discretionary execution.[320] As an exception to the
general rule on execution after final and executory judgment, the reasons
offered by Atty. Pea to justify execution pending appeal must be strictly
construed.
Neither will the Court accept the trial courts unfounded assumption that
Urban Banks appeal was merely dilatory, as in fact, the PhP28,500,000
award given by the trial court was overturned by the appellate court and
eventually by this Court.
Moreover, at the time the Special Order of Judge Henry Trocio of the
RTC-Bago City came out in 1999, Urban Bank had assets worth more
than PhP11 Billion and had a net worth of more than PhP2 Billion. There
was no reason then to believe that Urban Bank could not satisfy a
judgment of PhP28,500,000, a sum that was only 1% of its net worth,
and 1/5 of 1% of its total assets of PhP11,933,383,630.[321] Urban Bank
was even given a Solvency, Liquidity and Management Rating of 82.89
over 100 by no less than the BSP[322] and reportedly had liquid assets
amounting to PhP2,036,878.[323] In fact, no allegation of impending
insolvency or attempt to abscond was ever raised by Atty. Pea and yet,
the trial court granted execution pending appeal.
Since the original order granting execution pending appeal was
completely void for containing no justifiable reason, it follows that any
affirmance of the same by the Court of Appeals is likewise void.
The Decision of the Court of Appeals in the case docketed as CA-G.R.
SP No. 55667, finding a new reason for granting execution pending
appeal, i.e., the receivership of Urban Bank, is likewise erroneous,
notwithstanding this Courts ruling in Lee v. Trocino.[324] In accordance
with the subsequent Resolution of the Court in abovementioned case
of Lee v. Trocino,[325] we directly resolve the issue of the insufficiency of
the reasons that led to the grant of execution pending appeal.
In cases where the two or more defendants are made subsidiarily or
solidarily liable by the final judgment of the trial court, discretionary
execution can be allowed if all the defendants have been found to be
insolvent. Considering that only Urban Bank, and not the other eight
individual defendants, was later on considered by the Court of Appeals
Page 331
to have been in danger of insolvency, is not sufficient reason to allow
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LEGAL ETHICS
execution pending appeal, since the liability for the award to Pea was
made (albeit, mistakenly) solidarily liable together with the bank officers.
In Flexo Manufacturing Corp. v. Columbus Food, Inc., and Pacific Meat
Company, Inc.,[326] both Columbus Food, Inc., (Columbus Food) and
Pacific Meat Company, Inc., (Pacific Meat) were found by the trial court
therein to be solidarily liable to Flexo Manufacturing, Inc., (Flexo
Manufacturing) for the principal obligation of PhP2,957,270.00. The
lower court also granted execution pending appeal on the basis of the
insolvency of Columbus Food, even if Pacific Meat was not found to
be insolvent. Affirming the reversal ordered by the Court of Appeals,
this Court ruled that since there was another party who was solidarily
liable to pay for the judgment debt, aside from the insolvent Columbus
Food, there was no good reason to allow the execution pending appeal:
Regarding the state of insolvency of Columbus, the case of Philippine
National Bank v. Puno, held:
While this Court in several cases has held that insolvency of the
judgment debtor or imminent danger thereof is a good reason for
discretionary execution, otherwise to await a final and executory
judgment may not only diminish but may nullify all chances for recovery
on execution from said judgment debtor, We are constrained to rule
otherwise in this particular case. In the aforecited cases, there was
either only one defeated party or judgment debtor who was,
however, insolvent or there were several such parties but all were
insolvent, hence the aforesaid rationale for discretionary execution
was present. In the case at bar, it is undisputed that, assuming MMIC is
insolvent, its co-defendant PNB is not. It cannot, therefore, be
plausibly assumed that the judgment might become illusory; if
MMIC cannot satisfy the judgment, PNB will answer for it. It will be
observed that, under the dispositive portion of the judgment hereinbefore
quoted, the liability of PNB is either subsidiary or solidary.
Thus, when there are two or more defendants and one is not
insolvent, the insolvency of a co-defendant is not a good reason to
justify execution pending appeal if their liability under the judgment
is either subsidiary or solidary. In this case, Pacific was adjudged to
be solidarily liable with Columbus. Therefore, the latter is not the only
party that may be answerable to Flexo. Its insolvency does not
amount to a good reason to grant execution pending appeal.
(Emphasis supplied)
Similarly, the trial court in this case found Urban Bank and all eight
individual bank officers solidarily liable to Atty. Pea for the payment of
the PhP28,500,000 award. Hence, had the judgment been upheld on
appeal, Atty. Pea could have demanded payment from any of the nine
defendants. Thus, it was a mistake for the Court of Appeals to have
affirmed execution pending appeal based solely on the receivership of
Urban Bank, when there were eight other individual defendants, who
were solidarily liable but were not shown to have been insolvent. Since
Urban Banks co-defendants were not found to have been insolvent,
there was no good reason for the Court of Appeals to immediately order
execution pending appeal, since Atty. Peas award could have been
satisfied by the eight other defendants, especially when the de Leon
Group filed its supersedeas bond.
It seems incongruous for Atty. Pea to be accorded the benefit of
erroneously impleading several bank directors, who had no direct hand
in the transaction, but at the same time, concentrating solely on Urban
Banks inability to pay to justify execution pending appeal, regardless of
the financial capacity of its other co-defendants. Worse, he capitalized
on the insolvency and/or receivership of Urban Bank to levy or garnish
properties of the eight other individual defendants, who were never
shown to have been incapable of paying the judgment debt in the first
place. The disposition on the execution pending appeal may have been
different had Atty. Pea filed suit against Urban Bank alone minus the
bank officers and the same bank was found solely liable for the award
and later on declared under receivership.
PINEDAPCGRNMAN
In addition, a judgment creditor of a bank, which has been ordered by
the BSP to be subject of receivership, has to fall in line like every other
creditor of the bank and file its claim under the proper procedures for
banks that have been taken over by the PDIC. Under Section 30 of
Republic Act No. 7653, otherwise known as the New Central Bank
Act, which prevailed at that time, once a bank is under receivership, the
receiver shall immediately gather and take charge of all the assets and
liabilities of the bank and administer the same for the benefit of its
creditors and all of the banks assets shall be considered as
under custodial legis and exempt from any order of garnishment, levy,
attachment or execution.[327] In the Minute Resolution of the Monetary
Board of the BSP, Urban Bank was not only prevented from doing
business in the Philippines but its asset and affairs were placed under
receivership as provided for under the same law.[328] In fact, even Pea
himself assured the PDIC, as receiver of Urban Bank, that he would not
schedule or undertake execution sales of the banks assets for as long
as the bank remains in receivership.[329] Until the approval of the
rehabilitation or the initiation of the liquidation proceedings, all creditors
of the bank under receivership shall stand on equal footing with respect
to demanding satisfaction of their debts, and cannot be extended
preferred status by an execution pending appeal with respect to the
banks assets:
[t]o execute the judgment would unduly deplete the assets of respondent
bank to the obvious prejudice of other creditors. After the Monetary
Board has declared that a bank is insolvent and has ordered it to cease
operations, the Board becomes the trustee of its assets for the equal
benefit of all the depositors and creditors. After its insolvency, one
creditor cannot obtain an advantage or preference over another by an
attachment, execution or otherwise. Until there is an approved
rehabilitation or the initiation of the liquidation proceedings,
creditors of the bank stand on equal footing with respect to
demanding satisfaction of their debts, and cannot be afforded
special treatment by an execution pending appeal with respect to
the banks assets.[330] (Emphasis supplied)
Moreover, assuming that the CA was correct in finding a reason to justify
the execution pending appeal because of the supervening event of
Urban Banks closure, the assumption by the EIB of the liabilities of Urban
Bank meant that any execution pending appeal can be granted only if
EIB itself is shown to be unable to satisfy Peas judgment award of
PhP28,500,000. That is not at all the case. In just one particular sale on
execution herein, EIB offered to answer in cash for a substantial part of
Peas claims, as evidenced by EIBs capacity and willingness to redeem
the executed properties (condominium units sold to intervenor Unimega)
by tendering managers checks for more than PhP22 Million[331] which is
already 77.57% of Peas total award from the trial court.[332] The fact that
EIBs offer to take over Urban Bank means it was able to satisfy the BSPs
concern that all legitimate liabilities of Urban Bank be duly discharged.
As an exception to the general rule that only final judgments may be
executed,[333] the grant of execution pending appeal must perforce be
based on good reasons. These reasons must consist of compelling or
superior circumstances demanding urgency which will outweigh the
injury or damages suffered, should the losing party secure a reversal of
the judgment or final order.[334] The circumstances that would reasonably
justify superior urgency, demanding interim execution of Peas claims for
compensation and/or damages, have already been settled by the
financial capacity of the eight other co-defendants, the approval of the
supersedeas bonds, the subsequent takeover by EIB, and the successor
banks stable financial condition,[335] which can answer for the judgment
debt. Thus, Peas interest as a judgment creditor is already well-
protected.
While there is a general rule that a final and executory judgment in the
Page 332
main case will render moot and academic a petition questioning the
exercise of the trial courts discretion in allowing execution pending
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
appeal, we find it necessary to rule categorically on this question
because of the magnitude of the aberrations that attended the execution
pending appeal in the Decision of the RTC-Bago City.
Irregularities in the Levy and Sale on Execution Pending Appeal
Assuming that the Special Order granting execution pending appeal
were valid, issues have been raised on alleged irregularities that mar the
levy and sale on execution of the properties of Urban Bank and its
officers and directors. Many of the facts have not been sufficiently
litigated before the trial and appellate courts for us to fully rule on the
issue, nevertheless, from what is on record, the following are the
observations of this Court:
First, contrary to the general rules on execution, no opportunity was
given to Urban Bank or the other co-defendants to pay the judgment debt
in cash or certified check.[336] Before proceeding on the levying and
garnishing personal and real properties, demand must be made by the
sheriff against the judgment debtors, Urban Bank and the eight other
individual bank officers, for the immediate payment of the award subject
of the execution pending appeal. It has not been shown whether Urban
Bank and its officers and directors were afforded such an
opportunity. Instead of garnishing personal properties of the bank, the
sheriff inexplicably proceeded to levy substantial real properties of the
bank and its officers at the onset.
Second, assuming that Urban Bank and its officers did not possess
sufficient cash or funds to pay for the judgment debt pending appeal,
they should have been given the option to choose which of their
properties to be garnished and/or levied. In this case, Urban Bank
exercised its option by presenting to the sheriff various parcels of land,
whose values amount to more than PhP76,882,925 and were sufficient
to satisfy the judgment debt.[337] Among those presented by the bank,
only the property located in Tagaytay was levied upon by the
sheriff.[338] No sufficient reason was raised why the banks chosen
properties were rejected or inadequate for purposes of securing the
judgment debt pending appeal. Worse, the Sheriff proceeded with
garnishing and levying on as many properties of Urban Bank and its
officers, in disregard of their right to choose under the rules.
Third, the public auction sales conducted in the execution pending
appeal sold more properties of Urban Bank and the directors than what
was sufficient to satisfy the debt. Indeed, the conservative value of the
properties levied herein by the sheriff amounting to more
than PhP181,919,190, consisting of prime condominium units in the
heart of the Makati Business district, a lot in Tagaytay City, shares in
exclusive clubs, and shares of stock, among others, was more than
sufficient to answer for the PhP28,500,000 judgment debt six times over.
Rather than stop when the properties sold had approximated the
monetary award, the execution sale pending appeal continued and
unduly benefitted Atty. Pea, who, as judgment creditor and, at times, the
winning bidder, purchased most of the properties sold.
Fourth, it was supremely disconcerting how Urban Bank, through its
successor EIB, was unduly deprived of the opportunity to redeem the
properties, even after presenting managers checks[339] equal to the
purchase price of the condominium units sold at the execution sale. No
reason was offered by the trial court[340] or the sheriff[341] for rejecting the
redemption price tendered by EIB in order to recover the properties
executed and sold in public auction pending appeal.
Finally, the Court cannot turn a blind eye to the fact that there was
already a sufficient supersedeas bond given to answer for whatever
monetary award will be given in the end. To recall, the De Leon Group
had already tendered a supersedeas bond of PhP40,000,000 in the
PINEDAPCGRNMAN
Court of Appeals to prevent execution pending appeal over their
properties. In fact, even Urban Bank tendered a separate supersedeas
bond of equal amount with this Court, for a total of PhP80,000,000 to
secure any judgment to be awarded to Atty. Pea. That execution sales
over the properties of judgment debtors proceeded despite the three-fold
value of securities compared to the amount of the award indicates bad
faith, if not malice, with respect to the conduct of the execution pending
appeal.
Inasmuch as the RTC Decision has already been vacated and an
independent finding has been made by this Court of the complete nullity
of the order granting execution pending appeal, it follows that all acts
pursuant to such order and its writ are also void. It does not follow
however, that the Courts Decision in Co v. Sillador,[342] is nullified,
inasmuch as an equally-important legal doctrine the immutability of
Supreme Court final decisions is also to be considered. In any case, the
factual circumstances and the ruling on that case were limited to the
actions of Sheriff Allan Sillador with respect to properties levied under
the same Special Order and Writ of Execution, which were subject of
third party claims made by the spouses of Teodoro Borlongan, Corazon
Bejasa and Arturo Manuel, Jr.[343] It does not encompass other specific
events and acts committed in the course of the execution pending appeal
that may warrant administrative or disciplinary actions. Having said that,
this Court leaves it to the parties to explore avenues for redress in such
a situation.
The observation on the irregularities above-enumerated are made for the
purpose of correcting the injustice that has been committed herein, by
allowing the Court to pursue the question of who was responsible for
such gross violation of the rules on execution, and for the Court to find
measures to improve the safeguards against abuse of court processes.
It is for this reason that the Office of the Court Administrator will be given
a special task by the Court on this matter. Judge Henry Trocino of RTC-
Bago City, who issued the Special Order and had supervisory authority
over the proceedings of the execution pending appeal, would have been
included under such administrative investigation by the Office of the
Court Administrator, were it not for his retirement from the judicial
service.
The Courts Suspension Order of Execution Pending Appeal
Acting on Atty. Peas Omnibus Motion dated 09 December 2002[344] and
Unimegas Motion for Reconsideration dated 10 December 2002[345] with
respect to the Courts Order dated 13 November 2002[346] that clarified
the earlier stay order against the execution pending appeal,[347] the Court
hereby denies both motions. The Court is fully correct in suspending the
period for the running of the redemption period of the properties of Urban
Bank and its officers and directors that were levied and subject of
execution sale to satisfy the judgment debt in favor of Atty. Pea, the Court
having conclusively determined that the supersedeas bond filed was
sufficient and considering the subsequent finding that the said execution
pending appeal lacks any sufficient ground for the grant thereof.
As to the theory of Atty. Pea that the actuations of Justice Carpio, the
then ponente of this case, in drafting the questioned Order should
positively impact his motion for reconsideration of the same, the Court
finds this argument utterly devoid of merit.
In the first place, that questioned Order was not the decision of only a
single member of the Court, Justice Carpio, but of the entire division to
which he belonged, then composed of retired Chief Justice Hilario
Davide, Justices Jose Vitug, Consuelo Ynares-Santiago and Adolfo
Azcuna. This Order was affirmed by the same Division as its duly-
promulgated order. In relation to this, the affirmation by the Division of
Page 333
this Order demonstrates that there is no truth to Atty. Peas claim that
Justice Carpio fabricated the Order.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
In the second place, Atty. Peas claim of undue interest against Justice
Carpio specifically with respect to the latter having the instant case
transferred to his new Division, is based on ignorance of the system of
assignment of cases in the Supreme Court. When a reorganization of the
Court takes place in the form of a change in the composition of Divisions,
due to the retirement or loss of a member, the Justices do not thereby
lose their case assignments but bring the latter with them to their new
Divisions.[348] The cases are then transferred to the Justices new
Divisions, by way of the corresponding request from each justice. Each
justice is in fact, required to make this request, otherwise the rollo of the
cases of which he is Member-in-Charge will be retained by a Division in
which he is no longer a member. Indeed, Atty. Peas imagination has
gotten the better of him.
Thirdly, his insinuation (which he denies) that Justice Carpio may have
been bribed because the latter has a new Mercedes Benz[349] is highly
offensive and has no place where his points should have been confined
to legal reasons and arguments.
Incidentally, Atty. Pea has voiced the fear in the Letter of Complaint filed
in the Courts Committee on Ethics and Ethical Standards,[350] which he
brought against the ponente of this Decision, that she will suppress
material information regarding the issuance of the Order suspending the
redemption period because of her close relationship to Justice Carpio.
Contrary to this fear, this Decision is frontally disposing of this claim by
stating that there is no basis to believe that the questioned Order was
anything than the joint decision of the five members of the then First
Division, and that his arguments in his motion to reconsider does not
persuade this Court to vary in any form the questioned order. Moreover,
our disposition of this case renders moot his motion to reconsider the
order.
It must be emphasized that the prolonged resolution of the procedural
issue in the Petitions in G. R. Nos. 145817 and 145822 on the execution
pending appeal is due in no small part to the delays arising from Peas
peculiar penchant for filing successive motions for inhibition and re-
raffle.[351] The Court cannot sanction Peas repeated requests for
voluntary inhibition of members of the Court based on the sole ground of
his own self-serving allegations of lack of faith and trust, and would like
to reiterate, at this point, the policy of the Court not to tolerate acts of
litigants who, for just about any conceivable reason, seek to disqualify a
judge (or justice) for their own purpose, under a plea of bias, hostility,
prejudice or prejudgment.[352] The Court cannot allow the unnecessary
and successive requests for inhibition, lest it opens the floodgates to
forum-shopping where litigants look for a judge more friendly and
sympathetic to their cause than previous ones.[353]
Restitution of the Banks Executed Properties
The Court is still confronted with the supervening acts related to the
execution pending appeal and the reversal of the award of damages,
which affect the rights of the parties as well as of the intervenors to the
case, specifically, intervenor Unimega. In completely resolving the
differing claims and performing its educational function, the Court shall
briefly encapsulate and restate the operational rules governing execution
pending appeal when there has been a reversal of the trial courts
Decision on the award of damages in order to guide the parties as well
as the bench and bar in general. The necessity of making these detailed
instructions is prompted by the most natural question an ordinary person
with a sense of justice will ask after reading the facts: How can an
obligation to pay for the services of a lawyer so that 23 unwanted tenants
leave a corporation's property lead to the loss or the impairment of use
of more than PhP181 Million worth of properties of that corporation and
of its officers and directors? Obviously, this Court must undertake
corrective actions swiftly.
PINEDAPCGRNMAN
The rule is that, where the executed judgment is reversed totally or
partially, or annulled on appeal or otherwise the trial court may, on
motion, issue such orders of restitution or reparation of damages as
equity and justice may warrant under the circumstances.[354] The Rules
of Court precisely provides for restitution according to equity, in case the
executed judgment is reversed on appeal.[355] In an execution pending
appeal, funds are advanced by the losing party to the prevailing party
with the implied obligation of the latter to repay the former, in case
the appellate court cancels or reduces the monetary award.[356]
In disposing of the main case subject of these Petitions, the Court totally
reversed the staggering amount of damages given by the trial court, and
limited on a quantum meruit basis the agents compensation to
PhP4,500,000 only. However, properties of Urban Bank and individual
petitioners have been garnished and levied upon in the amount of
supposedly more than PhP85,399,350.[357]
Applying the foregoing rules, petitioner-respondent bank is entitled to
complete and full restitution of its levied properties, subject to the
payment of the PhP4,500,000. Meanwhile, petitioners bank officers, all
of whom have not been found individually or solidarily liable, are entitled
to full restitution of all their properties levied upon and garnished, since
they have been exonerated from corporate liability with respect to the
banks agency relationship with Pea.
Considering the monetary award to Pea and the levy on and execution
of some of its properties pending appeal, Urban Bank, now EIB, may
satisfy the judgment in the main case and at the same time fully recover
all the properties executed owing to the complete reversal of the trial
courts awarded damages. It must immediately and fully pay the judgment
debt before the entire lot of levied properties, subject of the execution
pending appeal, is restored to it.[358]
Due to the complete reversal of the trial courts award for damages, which
was the basis of the Special Order and Writ of Execution allowing
execution pending appeal, intervenor Unimega and other bidders who
participated in the public auction sales are liable to completely restore to
petitioner-respondent bank all of the properties sold and purchased
therein. Although execution pending appeal is sanctioned under the rules
and jurisprudence, when the executed decision is reversed, the
premature execution is considered to have lost its legal bases. The
situation necessarily requires equitable restitution to the party prejudiced
thereby.[359] As a matter of principle, courts are authorized at any time to
order the return of property erroneously ordered to be delivered to one
party, if the order is found to have been issued without jurisdiction.[360]
As a purchaser of properties under an execution sale, with an appeal on
the main case still pending, intervenor Unimega knew or was bound to
know that its title to the properties, purchased in the premature public
auction sale, was contingent on the outcome of the appeal and could
possibly be reversed. Until the judgment on the main case on which the
execution pending appeal hinges is rendered final and executory in favor
of the prevailing judgment creditor, it is incumbent on the purchasers in
the execution sale to preserve the levied properties. They shall be
personally liable for their failure to do so, especially if the judgment is
reversed, as in this case.[361] In fact, if specific restitution becomes
impracticable such as when the properties pass on to innocent third
parties the losing party in the execution even becomes liable for the full
value of the property at the time of its seizure, with interest. The Court
has ruled:
When a judgment is executed pending appeal and subsequently
overturned in the appellate court, the party who moved for immediate
execution should, upon return of the case to the lower court, be required
Page 334
to make specific restitution of such property of the prevailing party as he
or any person acting in his behalf may have acquired at the execution
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
sale. If specific restitution becomes impracticable, the losing party
in the execution becomes liable for the full value of the property at
the time of its seizure, with interest.
While the trial court may have acted judiciously under the premises, its
action resulted in grave injustice to the private respondents. It cannot be
gainsaid that it is incumbent upon the plaintiffs in execution (Arandas) to
return whatever they got by means of the judgment prior to its
reversal. And if perchance some of the properties might have
passed on to innocent third parties as happened in the case at bar,
the Arandas are duty bound nonetheless to return the
corresponding value of said properties as mandated by the Rules.
(Emphasis supplied)[362]
In this case, the rights of intervenor Unimega to the 10 condominium
units bought during the public auction sale under the Special Order are
rendered nugatory by the reversal of the award of unconscionable
damages by the trial court. It cannot claim to be an innocent third-party
purchaser of the levied condominium units, since the execution sale was
precisely made pending appeal. It cannot simply assume that whatever
inaction or delay was incurred in the process of the appeal of the main
Decision would automatically render the remedy dilatory in
character.[363] Whatever rights were acquired by intervenor Unimega
from the execution sale under the trial courts Special Orders are
conditional on the final outcome of the appeal in the main case. Unlike
in auction sales arising from final and executory judgments, both the
judgment creditor and the third parties who participate in auction sales
pending appeal are deemed to knowingly assume and voluntarily accept
the risks of a possible reversal of the decision in the main case by the
appellate court.
Therefore, intervenor Unimega is required to restore the condominium
units to Urban Bank. Although the intervenor has caused the annotation
of the sale and levied on the titles to those units, the titles have remained
under the name of the bank, owing to the supersedeas bond it had filed
and the Courts own orders that timely suspended the transfer of the titles
and further execution pending appeal.
The obligation to restore the properties to petitioner-respondent bank is,
however, without prejudice to the concurrent right of intervenor Unimega
to the return of the PhP10,000,000 the latter paid for the condominium
units, which Pea received as judgment creditor in satisfaction of the trial
courts earlier Decision.[364] Consequently, intervenors earlier request for
the issuance of a writ of possession[365] over those units no longer has
any leg to stand on. Not being entitled to a writ of possession under the
present circumstances, Unimegas ex parte petition is consequently
denied.
Upon the reversal of the main Decision, the levied properties itself,
subject of execution pending appeal must be returned to the judgment
debtor, if those properties are still in the possession of the judgment
creditor, plus compensation to the former for the deprivation and the use
thereof.[366] The obligation to return the property itself is likewise imposed
on a third-party purchaser, like intervenor Unimega, in cases wherein
it directly participated in the public auction sale, and the title to the
executed property has not yet been transferred. The third-party
purchaser shall, however, be entitled to reimbursement from the
judgment creditor, with interest.
Considering the foregoing points, the Court adopts with modification the
rules of restitution expounded by retired Justice Florenz D. Regalado in
his seminal work on civil procedure,[367] which the appellate court itself
cited earlier.[368] In cases in which restitution of the prematurely executed
property is no longer possible, compensation shall be made in favor of
the judgment debtor in the following manner:
PINEDAPCGRNMAN
a. If the purchaser at the public auction is the judgment
creditor, he must pay the full value of the property at the time of its
seizure, with interest.
b. If the purchaser at the public auction is a third party,
and title to the property has already been validly and timely
transferred to the name of that party, the judgment creditor must pay
the amount realized from the sheriffs sale of that property, with interest.
c. If the judgment award is reduced on appeal, the judgment
creditor must return to the judgment debtor only the excess received over
and above that to which the former is entitled under the final judgment,
with interest.
In summary, Urban Bank is entitled to complete restoration and return of
the properties levied on execution considering the absolute reversal of
the award of damages, upon the payment of the judgment debt herein
amounting to PhP4,500,000, with interest as indicated in the dispositive
portion. With respect to individual petitioners, they are entitled to the
absolute restitution of their executed properties, except when restitution
has become impossible, in which case Pea shall be liable for the full
value of the property at the time of its seizure, with interest. Whether
Urban Bank and the bank officers and directors are entitled to any claim
for damages against Pea and his indemnity bond is best ventilated
before the trial court, as prescribed under the procedural rules on
execution pending appeal.
WHEREFORE, the Court DENIES Atty. Magdaleno Peas Petition for
Review dated 23 April 2004 (G. R. No. 162562) and AFFIRMS WITH
MODIFICATION the Court of Appeals Decision dated 06 November
2003 having correctly found that the Regional Trial Court of Bago City
gravely abused its discretion in awarding unconscionable damages
against Urban Bank, Inc., and its officers. The Decision of the Regional
Trial Court of Bago City dated 28 May 1999 is hence VACATED.
Nevertheless, Urban Bank, Inc., is ORDERED to pay Atty. Pea the
amount of PhP3,000,000 as reimbursement for his expenses and an
additional PhP1,500,000 as compensation for his services, with interest
at 6% per annum from 28 May 1999, without prejudice to the right of
Urban Bank to invoke payment of this sum under a right of set-off against
the amount of PhP25,000,000 that has been placed in escrow for the
benefit of Isabela Sugar Company, Inc. The Complaint against the eight
other individual petitioners, namely Teodoro Borlongan (+), Delfin C.
Gonzales, Jr., Benjamin L. de Leon, P. Siervo G. Dizon, Eric L. Lee, Ben
Y. Lim, Jr., Corazon Bejasa, and Arturo Manuel, Jr., is
hereby DISMISSED.
The Petitions for Review on Certiorari filed by petitioners Urban Bank
(G. R. No. 145817) and Benjamin L. de Leon, Delfin Gonzalez, Jr., and
Eric L. Lee (G. R. No. 145822) are hereby GRANTED under the
following conditions:
a. Urban Bank, Teodoro Borlongan, Delfin C. Gonzalez, Jr.,
Benjamin L. de Leon, P. Siervo H. Dizon, Eric L. Lee, Ben Y. Lim, Jr.,
Corazon Bejasa, and Arturo Manuel, Jr., (respondent bank officers) shall
be restored to full ownership and possession of all properties executed
pending appeal;
b. If the property levied or garnished has been sold on
execution pending appeal and Atty. Magdaleno Pea is the winning bidder
or purchaser, he must fully restore the property to Urban Bank or
respondent bank officers, and if actual restitution of the property is
impossible, then he shall pay the full value of the property at the time of
its seizure, with interest;
c. If the property levied or garnished has been sold to a third
party purchaser at the public auction, and title to the property
has not been validly and timely transferred to the name of the third
Page 335
party, the ownership and possession of the property shall be returned to
Urban Bank or respondent bank officers, subject to the third partys right
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
to claim restitution for the purchase price paid at the execution sale
against the judgment creditor;
d. If the purchaser at the public auction is a third party,
and title to the property has already been validly and timely
transferred to the name of that party, Atty. Pea must pay Urban Bank
or respondent bank officers the amount realized from the sheriffs sale of
that property, with interest from the time the property was seized.
The Omnibus Motion dated 09 December 2002 filed by Atty. Pea and
Motion for Reconsideration dated 10 December 2002 filed by Unimega
with respect to the Courts Order dated 13 November 2002 is
hereby DENIED.
The Office of the Court Administrator is ordered to conduct an
investigation into the possible administrative liabilities of Atty. Josephine
Mutia-Hagad, the then RTC-Bago Citys Clerk of Court, and Allan D.
Sillador, the then Deputy Sheriff of Bago City, for the irregularities
attending the execution pending appeal in this case, including all judicial
officers or sheriffs in the various places in which execution was
implemented, and to submit a report thereon within 120 days from
receipt of this Decision.
The Office of the Court Administrator is also directed to make
recommendations for the prevention of abuses of judicial processes in
relation to executions, especially those pending appeal, whether thru
administrative circulars from this Court or thru a revision of the Rules of
Court, within 30 days from submission of the report on administrative
liabilities adverted to above. Let a copy of the Courts Decision in this
case be sent to the Office of the Court Administrator.
The Presiding Judge of RTC Bago City shall make a full report on all
incidents related to the execution in this case, including all returns on the
writ of execution herein.
Because so much suspicious circumstances have attended the
execution in this case by the Regional Trial Court of Bago City, the
proceedings with respect to any restitution due and owing under the
circumstances shall be transferred to the Regional Trial Court in the
National Capital Region, Makati City, a court with venue to hear cases
involving Urban Bank/Export and Industry Bank whose headquarters is
located in Makati City. The Executive Judge of the Regional Trial Court
of Makati City is ordered to include the execution of the Decision and the
proceedings for the restitution of the case in the next available raffle.
The Regional Trial Court of Makati City, to which the case shall be raffled,
is hereby designated as the court that will fully implement the restorative
directives of this Decision with respect to the execution of the final
judgment, return of properties wrongfully executed, or the payment of the
value of properties that can no longer be restored, in accordance with
Section 5, Rule 39 of the Rules of Court. The parties are directed to
address the implementation of this part of the Decision to the sala to
which the case will be raffled.
No pronouncement as to costs.
SO ORDERED.
REPUBLIC ACT No. 5185: AN ACT GRANTING FURTHER
AUTONOMOUS POWERS TO LOCAL GOVERNMENTS
Section 6. Prohibition Against Practice. A member of the Provincial
Board or City or Municipal Council shall not appear as counsel before
any court in any civil case wherein the province, city or municipality, as
the case may be, is the adverse party: Provided, however, That no
member of the Provincial Board shall so appear except in behalf of his
province in any civil case wherein any city in the province is the adverse
party whose voters are en-franchised to vote for provincial officials, nor
PINEDAPCGRNMAN
shall such member of the Provincial Board or City or Municipal Council
appear as counsel for the accused in any criminal case wherein an officer
or employee of said province, city or municipality is accused of an
offense committed in relation to the latter's office, nor shall he collect any
fee for his appearance in any administrative proceedings before
provincial, city or municipal agencies of the province, city or municipality,
as the case may be, of which he is an elected official.
The provisions of this Section shall likewise apply to provincial governors
and city and municipal mayors.
ROC RULE 138
Section 24. Compensation of attorneys; agreement as to fees. An
attorney shall be entitled to have and recover from his client no
more than a reasonable compensation for his services, with a view
to the importance of the subject matter of the controversy, the
extent of the services rendered, and the professional standing of
the attorney. No court shall be bound by the opinion of attorneys
as expert witnesses as to the proper compensation, but may
disregard such testimony and base its conclusion on its own
professional knowledge. A written contract for services shall
control the amount to be paid therefor unless found by the court to
be unconscionable or unreasonable.
Section 32. Compensation for attorneys de oficio. Subject to
availability of funds as may be provided by the law the court may,
in its discretion, order an attorney employed as counsel de oficio to
be compensates in such sum as the court may fix in accordance
with section 24 of this rule. Whenever such compensation is
allowed, it shall be not less than thirty pesos (P30) in any case, nor
more than the following amounts: (1) Fifty pesos (P50) in light
felonies; (2) One hundred pesos (P100) in less grave felonies; (3)
Two hundred pesos (P200) in grave felonies other than capital
offenses; (4) Five Hundred pesos (P500) in capital offenses.
EVANGELINA MASMUD (as substitute G.R. No. 183385
complainant for ALEXANDER J. MASMUD),
Petitioner, Present:
YNARES-
- versus - SANTIAGO, J.,
Chairperson,
AUSTRIA-
MARTINEZ,
NATIONAL LABOR RELATIONS CHICO-NAZARIO,
COMMISSION (First Division) and ATTY. NACHURA, and
ROLANDO B. GO, JR., PERALTA, JJ.
Respondents.
Promulgated:
February 13, 2009
x------------------------------------------------------------------------------------x
RESOLUTION
NACHURA, J.:
Before the Court is a petition for review on certiorari[1] assailing the
Decision[2] dated October 31, 2007 and the Resolution dated June 6,
2008 of the Court of Appeals (CA) in CA-G.R. SP No. 96279.
The facts of the case are as follows:
On July 9, 2003, Evangelina Masmuds (Evangelina) husband, the late
Alexander J. Masmud (Alexander), filed a complaint[3] against First
Page 336
Victory Shipping Services and Angelakos (Hellas) S.A. for non-payment
of permanent disability benefits, medical expenses, sickness allowance,
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
moral and exemplary damages, and attorneys fees. Alexander engaged
the services of Atty. Rolando B. Go, Jr. (Atty. Go) as his counsel.
In consideration of Atty. Gos legal services, Alexander agreed to pay
attorneys fees on a contingent basis, as follows: twenty percent (20%) of
total monetary claims as settled or paid and an additional ten percent
(10%) in case of appeal. It was likewise agreed that any award of
attorneys fees shall pertain to respondents law firm as compensation.
On November 21, 2003, the Labor Arbiter (LA) rendered a Decision
granting the monetary claims of Alexander. The dispositive portion of the
decision, as quoted in the CA Decision, reads:
WHEREFORE, foregoing considered, judgment is rendered finding the
[First Victory Shipping Services and Angelakos (Hellas) S.A.] jointly and
severally liable to pay [Alexanders] total permanent disability benefits in
the amount of US$60,000.00 and his sickness allowance of
US$2,348.00, both in Philippine currency at the prevailing rate of
exchange at the time of payment; and to pay further the amount
of P200,000.00 as moral damages, P100,000.00 as
exemplary damages and attorneys fees equivalent to ten percent (10%)
of the total monetary award.
[Alexanders] claim for payment of medical expenses is dismissed for lack
of basis.
SO ORDERED.[4]
Alexanders employer filed an appeal before the National Labor Relations
Commission (NLRC). During the pendency of the proceedings before the
NLRC, Alexander died. After explaining the terms of the lawyers fees to
Evangelina, Atty. Go caused her substitution as complainant. On April
30, 2004, the NLRC rendered a Decision dismissing the appeal of
Alexanders employer. The employer subsequently filed a motion for
reconsideration. The NLRC denied the same in an Order dated October
26, 2004.
On appeal before the CA, the decision of the LA was affirmed with
modification. The award of moral and exemplary damages was
deleted.[5] Alexanders employers filed a petition for certiorari[6] before
this Court. On February 6, 2006, the Court issued a Resolution
dismissing the case for lack of merit.
Eventually, the decision of the NLRC became final and executory. Atty.
Go moved for the execution of the NLRC decision, which was later
granted by the LA. The surety bond of the employer was garnished. Upon
motion of Atty. Go, the surety company delivered to the NLRC Cashier,
through the NLRC Sheriff, the check amounting to P3,454,079.20.
Thereafter, Atty. Go moved for the release of the said amount to
Evangelina.
On January 10, 2005, the LA directed the NLRC Cashier to release the
amount of P3,454,079.20 to Evangelina. Out of the said amount,
Evangelina paid Atty. Go the sum ofP680,000.00.
Dissatisfied, Atty. Go filed a motion to record and enforce the attorneys
lien alleging that Evangelina reneged on their contingent fee agreement.
Evangelina paid only the amount of P680,000.00, equivalent to 20% of
the award as attorneys fees, thus, leaving a balance of 10%, plus the
award pertaining to the counsel as attorneys fees.
In response to the motion filed by Atty. Go, Evangelina filed a comment
with motion to release the amount deposited with the NLRC Cashier. In
her comment, Evangelina manifested that Atty. Gos claim for attorneys
fees of 40% of the total monetary award was null and void based on
Article 111 of the Labor Code.
PINEDAPCGRNMAN
On February 14, 2005, the LA issued an Order[7] granting Atty. Gos
motion, the fallo of which reads:
WHEREFORE, premises considered, and further considering the
substitute complainants initial payment of 20% to movant-counsel of the
monetary claims as paid, let the balance or unpaid twenty (20%) per cent
of attorneys fees due movant-counsel (or the amount of P839,587.39)
be recorded as lien upon all the monies that may still be paid to substitute
complainant Evangelina Masmud.
Accordingly, the NLRC Cashier is directed to pay movant-counsel the
amount of P677,589.96 which is currently deposited therein to partially
satisfy the lien.
SO ORDERED.[8]
Evangelina questioned the February 14, 2005 Order of the LA before the
NLRC. On January 31, 2006, the NLRC issued a Resolution[9] dismissing
the appeal for lack of merit.
Evangelina then elevated the case to the CA via a petition
for certiorari.[10] On October 31, 2007, the CA rendered a
Decision[11] partially granting the petition. The dispositive portion of the
decision reads:
WHEREFORE, the petition is PARTIALLY GRANTED. The Resolutions
dated January 31, 2006 and July 18, 2006 are hereby AFFIRMED with
MODIFICATION in that the Attorneys fees of respondent Atty. Rolando
B. Go, Jr. is declared fully compensated by the amount of P1,347,950.11
that he has already received.
SO ORDERED.[12]
Evangelina filed a motion for reconsideration. However, on June 6, 2008,
the CA issued a Resolution[13] denying the motion for reconsideration for
lack of merit.
Hence, the instant petition.
Evangelina presented this issue, viz.:
THE COURT OF APPEALS COMMITTED SERIOUS AND
REVERSIBLE ERROR OF LAW IN ITS DECISION DATED 31
OCTOBER 2007 AND RESOLUTION DATED 6 JUNE 2008 INSOFAR
AS IT UPHOLDS RESPONDENT LAWYERS CLAIM OF FORTY
PERCENT (40%) OF THE MONETARY AWARD IN A LABOR CASE AS
ATTORNEYS FEES.[14]
In effect, petitioner seeks affirmance of her conviction that the legal
compensation of a lawyer in a labor proceeding should be based on
Article 111 of the Labor Code.
There are two concepts of attorney's fees. In the ordinary sense,
attorney's fees represent the reasonable compensation paid to a lawyer
by his client for the legal services rendered to the latter. On the other
hand, in its extraordinary concept, attorney's fees may be awarded by
the court as indemnity for damages to be paid by the losing party to the
prevailing party,[15] such that, in any of the cases provided by law where
such award can be made, e.g., those authorized in Article 2208 of the
Civil Code, the amount is payable not to the lawyer but to the
client, unless they have agreed that the award shall pertain to the lawyer
as additional compensation or as part thereof.[16]
Page 337
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Here, we apply the ordinary concept of attorneys fees, or the
compensation that Atty. Go is entitled to receive for representing
Evangelina, in substitution of her husband, before the labor tribunals and
before the court.
Evangelina maintains that Article 111 of the Labor Code is the law that
should govern Atty. Gos compensation as her counsel and assiduously
opposes their agreed retainer contract.
Article 111 of the said Code provides:
ART. 111. Attorney's fees. (a) In cases of unlawful withholding of wages
the culpable party may be assessed attorney's fees equivalent to ten
percent of the amount of the wages recovered.
Contrary to Evangelinas proposition, Article 111 of the Labor Code deals
with the extraordinary concept of attorneys fees. It regulates the amount
recoverable as attorney's fees in the nature of damages sustained by
and awarded to the prevailing party. It may not be used as the standard
in fixing the amount payable to the lawyer by his client for the legal
services he rendered.[17]
In this regard, Section 24, Rule 138 of the Rules of Court should be
observed in determining Atty. Gos compensation. The said Rule
provides:
SEC. 24. Compensation of attorney's; agreement as to fees. An attorney
shall be entitled to have and recover from his client no more than a
reasonable compensation for his services, with a view to the importance
of the subject matter of the controversy, the extent of the services
rendered, and the professional standing of the attorney. No court shall
be bound by the opinion of attorneys as expert witnesses as to the proper
compensation, but may disregard such testimony and base its
conclusion on its own professional knowledge. A written contract for
services shall control the amount to be paid therefor unless found by the
court to be unconscionable or unreasonable.[18]
The retainer contract between Atty. Go and Evangelina provides for a
contingent fee. The contract shall control in the determination of the
amount to be paid, unless found by the court to be unconscionable or
unreasonable.[19] Attorney's fees are unconscionable if they affront one's
sense of justice, decency or reasonableness.[20] The decree of
unconscionability or unreasonableness of a stipulated amount in a
contingent fee contract will not preclude recovery. It merely justifies the
fixing by the court of a reasonable compensation for the lawyer's
services.[21]
The criteria found in the Code of Professional Responsibility are also to
be considered in assessing the proper amount of compensation that a
lawyer should receive. Canon 20, Rule 20.01 of the said Code provides:
CANON 20 A LAWYER SHALL CHARGE ONLY FAIR AND
REASONABLE FEES.
Rule 20.01. A lawyer shall be guided by the following factors in
determining his fees:
(a) The time spent and the extent of the services rendered or required;
(b) The novelty and difficulty of the question involved;
(c) The importance of the subject matter;
(d) The skill demanded;
PINEDAPCGRNMAN
(e) The probability of losing other employment as a result of acceptance
of the proffered case;
(f) The customary charges for similar services and the schedule of fees
of the IBP Chapter to which he belongs;
(g) The amount involved in the controversy and the benefits resulting to
the client from the service;
(h) The contingency or certainty of compensation;
(i) The character of the employment, whether occasional or established;
and
(j) The professional standing of the lawyer.
Contingent fee contracts are subject to the supervision and close
scrutiny of the court in order that clients may be protected from unjust
charges.[22] The amount of contingent fees agreed upon by the parties is
subject to the stipulation that counsel will be paid for his legal services
only if the suit or litigation prospers. A much higher compensation is
allowed as contingent fees because of the risk that the lawyer may get
nothing if the suit fails.[23] The Court finds nothing illegal in the contingent
fee contract between Atty. Go and Evangelinas husband. The CA
committed no error of law when it awarded the attorneys fees of Atty. Go
and allowed him to receive an equivalent of 39% of the monetary award.
The issue of the reasonableness of attorney's fees is a question of fact.
Well-settled is the rule that conclusions and findings of fact of the CA are
entitled to great weight on appeal and will not be disturbed except for
strong and cogent reasons which are absent in the case at bench. The
findings of the CA, which are supported by substantial evidence, are
almost beyond the power of review by the Supreme Court.[24]
Considering that Atty. Go successfully represented his client, it is only
proper that he should receive adequate compensation for his efforts.
Even as we agree with the reduction of the award of attorney's fees by
the CA, the fact that a lawyer plays a vital role in the administration of
justice emphasizes the need to secure to him his honorarium lawfully
earned as a means to preserve the decorum and respectability of the
legal profession. A lawyer is as much entitled to judicial protection
against injustice or imposition of fraud on the part of his client as the
client is against abuse on the part of his counsel. The duty of the court is
not alone to ensure that a lawyer acts in a proper and lawful manner, but
also to see that a lawyer is paid his just fees. With his capital consisting
of his brains and with his skill acquired at tremendous cost not only in
money but in expenditure of time and energy, he is entitled to the
protection of any judicial tribunal against any attempt on the part of his
client to escape payment of his just compensation. It would be ironic if
after putting forth the best in him to secure justice for his client, he himself
would not get his due.[25]
WHEREFORE, in view of the foregoing, the Decision dated October 31,
2007 and the Resolution dated June 6, 2008 of the Court of Appeals in
CA-G.R. SP No. 96279 are hereby AFFIRMED.
SO ORDERED.
ATTY. VICTORIANO V. OROCIO, G.R. No. 179892-93
Petitioner,
Present:
AUSTRIA-
MARTINEZ, J.,
Page 338
- versus - Acting Chairperson,
TINGA,*
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
CHICO-NAZARIO,
LEONARDO-DE
EDMUND P. ANGULUAN, LORNA T. CASTRO,** and
DY and NATIONAL POWER PERALTA, JJ.
CORPORATION,
Respondents. Promulgated:
January 30, 2009
x---------------------------------------------------
x the release of P184 million (which represented 40% of the liquid assets
DECISION
CHICO-NAZARIO, J.:
Before Us is a Petition[1] for Review on Certiorari under Rule 45 of the
Rules of Court seeking to set aside the Resolution[2] dated 31 October
2006, Decision[3] dated 29 January 2007, and Resolution[4] dated 27
September 2007, of the Court of Appeals in CA-G.R. SP Nos. 95786 and
95946.
The facts culled from the records are as follows:
On 26 September 1978, the National Power Corporation Board of
Directors (NAPOCOR Board), pursuant to its specific power and duty to
fix the compensation, allowance and benefits of the NAPOCOR
employees under Section 6(c) of Republic Act No. 6395, as amended,
passed Resolution No. 78-119 approving the grant of a monthly welfare
allowance equivalent to 10% of an employees basic pay to all
NAPOCOR employees effective 1 October 1978.[5] Pursuant thereto, the
NAPOCOR Welfare Plan Committee, renamed and reconstituted later
on as the NAPOCOR Welfare Fund Board of Trustees (NAPOCOR-
WFBT), issued and promulgated a charter for the NAPOCOR Welfare
Fund which includes the following provisions:
ARTICLE VII
TERMINATION/AMENDMENT OF THE PLAN
Section 1. Termination/Amendment of the Plan The Board of Directors
may amend, revise, repeal any or all of the provisions herein contained
and/or terminate the Plan, subject to the pertinent provisions of the Trust
Agreement.
Section 2. Payment of Members share In the event of termination of the
Plan, the balance to the credit of each member and the General Reserve
for Employee Benefits shall be paid to the members in full. The
accumulated amount in the General Reserve for Employee Benefits shall
be distributed among the members in the proportion to the amount
outstanding to their credit as of the time of termination.[6]
The NAPOCOR Board subsequently passed Resolution No. 82-172
fixing a NAPOCOR employees contribution to the NAPOCOR Welfare
Fund in a sum equivalent to 5% of his basic pay.[7]
Almost two decades thereafter, on 8 June 2001, Congress passed
Republic Act No. 9136, otherwise known as the Electric Power Industry
Reform Act (EPIRA). EPIRA directed the restructuring of the power
industry which includes the reorganization of NAPOCOR. Following the
directive of EPIRA, the NAPOCOR Board passed Resolution No. 2003-
43 on 26 March 2003 abolishing the NAPOCOR Welfare Fund
Department and other departments, and dissolving the NAPOCOR
PINEDAPCGRNMAN
Welfare Fund upon the effectivity of EPIRA on 26 June
2001.[8] Consequently, some of the employees in the NAPOCOR
Welfare Fund Department and in other departments (who were also
members of the NAPOCOR Welfare Fund) resigned, retired or separated
from service. Thereafter, the liquidation and dissolution process for the
NAPOCOR Welfare Fund commenced.
On 11 May 2004, the NAPOCOR-WFBT, with authority from the
Commission on Audit, approved Resolution No. 2004-001 authorizing
of NAPOCOR Welfare Fund in the total amount of P462 million as of 16
April 2004) for distribution to the NAPOCOR Welfare Fund members who
resigned, retired, or separated upon the effectivity of EPIRA on 26 June
2001 (EPIRA separated members).[9]
Pursuant to Resolution No. 2004-001, herein respondent Edmund P.
Anguluan (Anguluan), as Ex-Officio Chairman of NAPOCOR-WFBT,
issued a memorandum on 17 May 2004 to implement the release
of P184 million only to the EPIRA separated members to the exclusion
of the NAPOCOR employees (who were also members of the
NAPOCOR Welfare Fund) who have resigned, retired, or
separated prior to the effectivity of EPIRA (non-EPIRA separated
members).[10]
This prompted Mrs. Perla A. Segovia (Segovia), former Vice-President
of Human Resources and Administration and former Ex-
Officio Chairman of the NAPOCOR-WFBT, in behalf of the 559 non-
EPIRA separated members and in her own personal capacity, to write a
letter to Mr. Rogelio M. Murga, then NAPOCOR President, demanding
their equal shares in the remaining assets of the NAPOCOR Welfare
Fund and access to information and records thereof.[11]
On 13 July 2004, there being no action or response on her letter,
Segovia, together with Mrs. Emma C. Baysic (Baysic), former President
of the NAPOCOR Employees Association and former member of the
NAPOCOR-WFBT, in their personal capacities and on behalf of the 559
non-EPIRA separated members, filed with the Quezon City Regional
Trial Court (RTC), Branch 217, a Petition for Mandamus, Accounting and
Liquidation with a Prayer for the Issuance of Temporary Restraining
Order and Injunction against respondents NAPOCOR, the NAPOCOR
Board, Anguluan (as NAPOCOR Vice-President, Human Resources,
Administration and Finance Department) and Lorna T. Dy (as
NAPOCOR Senior Department Manager on Finance).[12] The Petition
was docketed as Civil Case No. Q04-53121.
Segovia, Baysic and the 559 non-EPIRA separated members were
represented in Civil Case No. Q04-53121 by petitioner Atty. Victoriano
V. Orocio under a Legal Retainer Agreement[13] dated 1 September
2004, pertinent portions of which are reproduced below:
SUBJECT: Petition for Mandamus with Damages
Temporary Restraining Order/Injunction, etc. with the Court
NPC RETIREES versus NPC, NP Board of Directors, et. al. before the
RTC Quezon City for the payment/settlement of their claims for NPC
Welfare Fund (P462 Million assets and other assets liquid or non-liquid).
Dear Ms. Segovia and Ms. Baysic:
In connection with the above-stated subject, hereunder are our terms
and conditions, to wit:
1. No acceptance fee;
2. All costs of litigation ([filing] and docket fees, etc.),
miscellaneous and out-of-pocket expenses the prosecution of said action
Page 339
shall be for the account of the clients;
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
3. No appearance/meeting fee;
4. Contingency or success fees of fifteen percent (15%) of
whatever amounts/value of assets (liquid and/or non-liquid) are
recovered;
5. This Retainer Agreement serves as Legal Authority for the
Law Firm to receive and/or collect its contingency/success fee without
further demand.
On 22 February 2006, the parties in the above-mentioned case, duly
assisted by their respective counsels, executed a Compromise
Agreement[14] whereby they agreed to amicably settle their dispute under
the following terms and conditions:
COMPROMISE AGREEMENT
xxxx
WHEREAS, the parties have agreed to settle the instant case amicably.
PREMISES CONSIDERED, the parties herein have agreed as follows:
1. Both the NPC EPIRA separated members (those members of the
Welfare Fund affected by the EPIRA law and ceased to be members
of the Welfare Fund anytime from June 26, 2001 [effectivity of the
EPIRA LAW] to March 1, 2003 [implementation of the EPIRA law and
date of abolition of the Welfare Fund]) and NPC non-EPIRA
separated members (those who ceased to be members of the Fund
prior to June 26, 2001) are entitled to Earnings Differential of the
NPC Welfare Fund;
2. Corrected Earnings Differential refers to a benefit which is a
result of re-computation of Members Equity Contributions and
Earnings using the correct rates of return vis--vis what was used
when they were separated. Period covered by the discrepancy is
from 1989 to 2003. Hence, affected are WF members separated
anytime within the period 1989 to 2003;
xxxx
4. The Corrected Earnings Differential of all affected WF separated
members shall earn 6% legal interest per annum computed from the
separation of the members from service up to March 31, 2006 for all the
non-EPIRA separated members and May 31, 2006 for the EPIRA
separated members;
5. As of March 2006, the estimated Corrected Earnings Differential
for the non-EPIRA separated members is P119.196 Million while for
the EPIRA separated members isP173.589 Million or a total
of P292.785 Million, inclusive of the 6% legal interest;
6. In conformity with the Retainer Agreement dated September 1,
2004 between Mrs. Perla A. Segovia, Mrs. Emma Y. Baysic and Atty.
Victoriano V. Orocio; and Irrevocable Special Power of Attorney
dated July 20, 2005 executed by Mrs. Perla A. Segovia and Mrs.
Emma Y. Baysic in favor of Atty. Victoriano V. Orocio, counsel for
petitioners, (copies attached as Annexes A and B respectively),
15% attorneys fees shall be deducted from the corresponding
Corrected Earnings Differential of those non-EPIRA separated
members who have already executed the corresponding Special
Power of Attorney/Written Authority for the deduction/payment of
said attorneys fees, and shall be paid to V.V. Orocio and Associates
Law Office, represented by Atty. Victoriano V. Orocio, as
PINEDAPCGRNMAN
compensation for his legal services as counsel for the non-EPIRA
separated members subject to deduction of applicable taxes;
xxxx
15. The parties herein shall exert their best effort in order that the terms
and conditions of this agreement are implemented and complied with in
the spirit of fairness, transparency and equity;
16. This Agreement is not contrary to law, good customs, public order or
public policy and is voluntarily entered into by the parties of their own
free will.[15]
The parties filed with the RTC the very next day, 23 February 2006, a
Joint Motion before the RTC for the approval of their Compromise
Agreement.[16] The RTC rendered a Decision on 3 April 2006 granting
the parties Joint Motion and approving the said Compromise
Agreement.[17]
On 10 April 2006, petitioner filed with the RTC a Motion for Approval of
Charging (Attorneys) Lien. Petitioner asked the RTC to issue an order
declaring him entitled to collect an amount equivalent to 15% of the
monies due the non-EPIRA separated members as his attorneys fees in
conformity with the Compromise Agreement.[18] In an Order dated 15
May 2006, the RTC granted petitioners motion and decreed that he is
entitled to collect the amount so demanded.[19]
On 20 June 2006, petitioner filed with the RTC a Motion for the Issuance
of a Writ of Execution of the RTC Order dated 15 May
2006.[20] Respondents opposed the motion on the ground that there was
no stipulation in the Compromise Agreement to the effect that petitioner
is entitled to collect an amount equivalent to 15% of the monies due the
non-EPIRA separated members. Respondents contended that the
amount of P119,196,000.00 due the non-EPIRA separated members
under the compromise agreement was a mere estimate and, as such,
cannot be validly used by petitioner as basis for his claim of 15%
attorneys fees.[21]
The RTC issued an Order on 25 July 2006 granting petitioners
Motion[22] and, accordingly, a Writ of Execution of the RTC Order dated
15 May 2006 was issued on 26 July 2006. Pursuant to the said Writ of
Execution, RTC Branch Sheriff Reynaldo B. Madoloria (Sheriff
Madoloria) issued a Notice of Garnishment to Ms. Aurora Arenas
(Arenas), Assistant Vice-President and Business Manager of the
Philippine National Bank (PNB)-NAPOCOR Extension Office, Diliman,
Quezon City, and to Mr. Emmanuel C. Mendoza (Mendoza), Unit Head
of the Landbank of the Philippines-NAPOCOR Extension Office, Diliman,
Quezon City.[23]
Respondents filed a Motion for Reconsideration of the RTC Order dated
25 July 2006.[24]
On 12 August 2006, Sheriff Madoloria served to Arenas an Order for
Delivery of Money.[25]
Respondents Anguluan and Dy filed before the Court of Appeals on 22
August 2006 a Petition for Certiorari under Rule 65 of the Rules of Court,
docketed as CA-G.R. SP No. 95786, assailing the RTC Order dated 25
July 2006 and praying that a temporary restraining order and/or a writ of
preliminary injunction be issued enjoining the implementation of the said
RTC order.[26] Respondent NAPOCOR filed with the Court of Appeals on
the same date another Petition for Certiorari under Rule 65 of the Rules
of Court, docketed as CA-G.R. SP No. 95946, also challenging the RTC
Page 340
Order dated 25 July 2006 and praying that it be set aside and a
temporary restraining order and/or a writ of preliminary injunction be
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
issued prohibiting the RTC from enforcing the said order and the
corresponding writ of execution and notice of
garnishment.[27] Subsequently, respondent NAPOCOR filed a Motion to
Consolidate CA-G.R. SP No. 95946 with CA-G.R. SP No. 95786 which
was granted by the appellate court.[28]
On 31 October 2006, the Court of Appeals issued a Resolution granting
respondents application for a TRO and writ of preliminary injunction. It
enjoined the RTC from implementing its Order dated 25 July 2006 and
the corresponding writ of execution and notice of garnishment during the
pendency of CA-G.R. SP No. 95946 and No. 95786.Petitioner filed a
motion for reconsideration of the said resolution.[29]
On 29 January 2007, the Court of Appeals promulgated its Decision
annulling and setting aside: (1) the RTC Order dated 25 July 2006; (2)
the corresponding Writ of Execution dated 26 July 2006; (3) the Notice
of Garnishment dated 28 July 2006; and (4) Order for Delivery of Money
dated 10 August 2006. It also held that petitioner was entitled only to an
amount of P1,000,000.00 as attorneys fees on the basis of quantum
meruit.
The Court of Appeals held that the amount of P17,794,572.70 sought to
be collected by petitioner as attorneys fees, equivalent to 15% of
the P119,196,000.00 estimated corrected earnings differential for non-
EPIRA separated members, was excessive based on the following
reasons: (1) the corrected earnings differential in the amount
ofP119,196,000.00 due the non-EPIRA separated members was a mere
estimate and was hypothetical. Thus, petitioner was unjustified in using
said amount as basis for his 15% attorneys fees; (2) there was hardly
any work by petitioner since (a) the compromise agreement was reached
without trial or hearing on the merits; (b) there was no issue regarding
the release and distribution of the NAPOCOR Welfare Fund to the non-
EPIRA separated members as the enactment of EPIRA, not the efforts
of petitioner, made such distribution possible; (c) there was no issue on
how much each non-EPIRA separated members would receive because
the amount of their respective contribution was duly recorded by the
respondents; (d) respondents have already distributed the corrected
earnings differential to some non-EPIRA separated members, and have
given petitioner his corresponding partial attorneys fees amounting
to P3,512,007.32; (e) most of the non-EPIRA separated members have
not yet received their share under the compromise agreement but
petitioner, who was merely their agent, was already given partial
payment as attorneys fees; (f) the amount of P17,794,572.70
represents only less than one fourth partial release of the NAPOCOR
Welfare Fund which means that the equivalent of three-fourths more
would be demanded [by petitioner] in the future; and (3) the money claim
of the non-EPIRA separated members was settled through a
compromise agreement and not won by petitioner in a trial on the merits.
The Court of Appeals determined that petitioner was entitled only to an
amount of P1,000,000.00 as attorneys fees on the basis of quantum
meruit. However, since petitioner already received P3,512,007.32 from
respondents as partial payment of his supposed 15% attorneys fees, it
ruled that such amount was more than sufficient and petitioner was not
entitled to claim anymore the additional amount
of P14,282,565.38. The fallo of the Decision of the Court of Appeals
reads:
WHEREFORE, premises considered, the assailed July 25, 2006 Order,
the July 26, 2006 Writ of Execution, the July 28, 2006 Notice of
Garnishment, and the August 10, 2006 Order of Delivery of Money are
hereby ANNULLED and SET ASIDE, and a new one is
ordered, CAPPING at P3,512,007.32, the amount manifested to have
already been received from the welfare fund as attorneys fees, as
the maximum amount that may be billed or collected as attorneys fees
from the whole welfare fund which amount is NOTED to have already
PINEDAPCGRNMAN
exceeded what this court had fixed at P1,000,000.00 as the reasonable
amount, on quantum meruit, that may be collected as attorneys fees,
pursuant to the guidelines codified in Rule 20.01, Canon 20 of the Code
of Professional Responsibility.[30]
Petitioner filed a motion for reconsideration of the aforementioned
Decision but this was denied by the Court of Appeals in its Resolution
dated 27 September 2007.[31]
Hence, petitioner brought the instant petition before us assigning the
following errors:
I.
THE COURT OF APPEALS ERRED IN RULING THAT RESPONDENTS
EDMUND P. ANGULUAN, LORNA T. DY AND NATIONAL POWER
CORPORATION (NPC) ARE ENTITLED TO [PRELIMINARY]
INJUNCTION AS THEY HAVE MATERIAL AND SUBSTANTIAL
RIGHTS, WHICH ARE CLEAR AND UNMISTAKABLE, i.e. RIGHTS OF
BEING CLIENTS TO QUESTION THE REASONABLENESS OF THE
ATTORNEYS FEES OF A LAWYER. THIS ALLEGED RIGHT IS NON-
EXISTENT AND IN FACT FABRICATED CONSIDERING THAT THE
RESPONDENTS ARE NOT THE CLIENTS AT ALL OF PETITIONER,
ATTY. VICTORIANO V. OROCIO;
II.
THE COURT OF APPEALS ERRED IN RULING THAT THE FIFTEEN
PERCENT (15%) CONTINGENCY/SUCCESS FEE OF PETITIONER
VICTORIANO V. OROCIO IS UNCONSCIONABLE AND
UNREASONABLE DESPITE THE UNDISPUTED FACT THAT THE
SAID ATTORNEYS FEES IS AMONG THE TERMS AND CONDITIONS
OF A JUDICIALLY APPROVED COMPROMISE AGREEMENT AND
COURT ORDER APPROVING HIS CHARGING LIEN, WHICH
AGREEMENT AND ORDER HAVE ALREADY BECOME FINAL AND
EXECUTORY.[32]
In his first assigned error, petitioner assails the Resolution dated 31
October 2006 of the Court of Appeals granting respondents application
for a writ of preliminary injunction. He claims that the Court of Appeals
issued a writ of preliminary injunction in favor of respondents because
petitioner allegedly violated respondents material and substantial right
as petitioners clients to pay only reasonable attorneys fees. Petitioner
asserts that none of the respondents is his client in the present case; that
even respondents themselves have not alleged or claimed that they are
his clients; that the amount of attorneys fees he claimed was chargeable
on a portion of the NAPOCOR Welfare Fund due his clients, the non-
EPIRA separated employees; that if anyone would be injured by his claim
of attorneys fees, it would be his clients, the non-EPIRA separated
employees, and not respondents; that none of his clients has questioned
or complained about the amount of attorneys fees he is claiming; that
respondents are not the real parties-in-interest and at most are merely
nominal parties-in-interest; that as mere nominal parties-in-interest,
respondents are not entitled to a writ of preliminary injunction under the
Rules of Court; and that the requisites for the proper issuance of a writ
of preliminary injunction are lacking in the instant case.[33]
In its Resolution dated 31 October 2006, the Court of Appeals granted
respondents application for a writ of preliminary injunction based on the
following reasons:
This Court finds that [herein respondents] have prima facie established
[their] compliance with strict requirements for issuance of a writ of
Page 341
preliminary injunction in this case. Under the leading case of Valencia
vs. Court of Appeals, 352 SCRA 72 (2001), the requisites of preliminary
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
injunction are as follows: (a) the invasion of the right of [herein
respondents] is material and substantial; (b) the right of [herein
respondents] is clear and unmistakable; and (c) there is an urgent and
paramount necessity for the writ to prevent serious irreparable damage
to [herein respondents].
The right of [herein respondents] alleged to have been invaded is
that a client has the right to pay only a reasonable amount of
attorneys fees and only for services actually rendered which is
clearly and unmistakably available to all clients. What [herein
respondents] are claiming is a material and substantial right. This Court
finds that [herein respondents] haveprima facie established an urgent
and paramount necessity for the issuance of the writ of preliminary
injunction prayed for, to avoid irreparable injury to [herein respondents].
x x x.
As can be gleaned from the foregoing, the basis of the Court of Appeals
in granting the writ was petitioners alleged violation or invasion of
respondents right, as petitioners clients, to pay only a reasonable
amount of attorneys fees to, and only for services actually rendered by,
petitioner.
The Court of Appeals is clearly mistaken.
It should be made clear that petitioner is the counsel for the non-EPIRA
separated members in the latters quest to claim their shares in the
NAPOCOR Welfare Fund.Petitioner was never hired or employed by
respondents as their counsel in the cases at bar. Respondents
themselves do not claim or allege that they are clients of petitioner. In
fact, petitioner is representing the non-EPIRA separated members, the
opposing party to the respondents in the present cases.
Further, the amount of attorneys fees being claimed by petitioner is
chargeable to the P119,196,000.00 corrected earnings differential of his
clients, the non-EPIRA separated members. Respondents have actually
partially distributed such amount to some non-EPIRA separated
members pursuant to the Compromise Agreement. In other words, the
non-EPIRA separated members are the lawful owners/beneficiaries of
the amount from which petitioners attorneys fees had been and shall be
taken.
Hence, if anyone would be injured by petitioners claim for attorneys fees,
it would be his clients, the non-EPIRA separated members, and not
respondents. It appears, however, that none of the non-EPIRA
separated members has questioned or complained about petitioners
claim for attorneys fees.
A preliminary injunction is an order granted at any stage of an action or
proceeding prior to the judgment or final order, requiring a party or a
court, agency or a person to refrain from a particular act or acts.[34] A writ
of preliminary injunction is a provisional remedy, an adjunct to a main
suit, as well as a preservative remedy issued to preserve thestatus
quo of the things subject of the action or the relations between the parties
during the pendency of the suit.[35] For a writ of preliminary injunction to
issue, the applicant is tasked to establish and convincingly show the
following: (1) a right in esse or a clear and unmistakable right to be
protected; (2) a violation of that right; and (3) there is an urgent and
permanent act and urgent necessity for the writ to prevent serious
damage.[36]
A clear legal right means one clearly founded on or granted by law or is
enforceable as a matter of law.[37] The existence of a right violated is a
prerequisite to the granting of a writ of preliminary injunction.[38] A writ of
preliminary injunction will not issue to protect a right not in esse and
which may never arise.[39] It may be issued only if the applicant has
PINEDAPCGRNMAN
clearly shown an actual existing right that should be protected during the
pendency of the principal action.[40] In the absence of a clear legal right,
or when the applicants right or title is doubtful or disputed, preliminary
injunction is not proper.[41]
It is evident from the foregoing that respondents do not have a clear right
or right in esse to pay only a reasonable amount of attorneys fees to the
petitioner because such right belongs solely to petitioners clients, the
non-EPIRA separated members. There can be no violation of a right
which does not exist in the first place. Also, there was no necessity for
the writ of preliminary injunction since the non-EPIRA separated
members do not claim any damage or injury caused by the execution of
the RTC Order dated 15 May 2006. Even assuming that respondents
would probably suffer damages as administrators or custodians of the
NAPOCOR Welfare Fund if the writ of preliminary injunction was not
granted, our ruling would still be the same. We have held that the
possibility of irreparable damage without proof of an actual existing right
is not a ground for the issuance of a writ of preliminary
injunction.[42] Given these considerations, we hold that the issuance by
the Court of Appeals of a writ of preliminary injunction in favor of
respondents in its Resolution, dated 31 October 2006, was improper.
With regard to his second assigned error, petitioner maintained that his
claim for attorneys fees equivalent to 15% of the P119,196,000.00
estimated corrected earnings differential due the non-EPIRA separated
members was not unreasonable or unconscionable because such
amount was expressly agreed upon in the Compromise Agreement
between the non-EPIRA separated members and respondents. The
Compromise Agreement was submitted to the RTC for approval through
the joint motion of the non-EPIRA separated members and respondents,
and the RTC had rendered a final and executory decision approving the
same. By virtue of res judicata, the Court of Appeals cannot alter or
change the terms of the Compromise Agreement by prohibiting petitioner
from collecting his stipulated amount of attorneys fees.[43]
Petitioner also avers that the amount of P17,794,572.70, which is
equivalent to 15% of the P119,196,000.00 estimated corrected earnings
differential due the non-EPIRA separated members from the NAPOCOR
Welfare Fund is already the total, not partial, amount he is claiming as
attorneys fees; that the P119,196,000.00 estimated corrected earnings
differential due the non-EPIRA separated members from the NAPOCOR
Welfare Fund is not hypothetical, such amount having been actually
computed and fixed by respondents themselves without the participation
of petitioner and his clients, the non-EPIRA separated members; that he
did a lot of legal work and utilized his legal skills on discovery procedures
to force respondents to enter into the Compromise Agreement with the
non-EPIRA separated members; that the passage of EPIRA merely
paved the way for the distribution of the remaining assets of the
NAPOCOR Welfare Fund; that if not for his legal work and skills, the non-
EPIRA separated members would not have received their lawful shares
in the remaining assets of the NAPOCOR Welfare Fund; and that his
claim for 15% attorneys fees is supported by jurisprudence.[44]
An attorneys fee, in its ordinary concept, refers to the reasonable
compensation paid to a lawyer for the legal services he has rendered to
a client.[45] The client and his lawyer may enter into a written contract
whereby the latter would be paid attorneys fees only if the suit or litigation
ends favorably to the client. This is called a contingency fee
contract. The amount of attorneys fees in this contract may be on a
percentage basis, and a much higher compensation is allowed in
consideration of the risk that the lawyer may get nothing if the suit
fails.[46] In the case at bar, the non-EPIRA separated members and
petitioner voluntarily entered into a contingency fee contract whereby
petitioner did not receive any acceptance fee or appearance/meeting
Page 342
fee. The non-EPIRA separated members expressly agreed to pay
petitioner contingency or success fees of fifteen percent (15%) of
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
whatever amount/value of assets (liquid and/or non-liquid) recovered;
and authorized petitioners law firm to receive and/or collect its
contingency/success fee without further demand.
Contingent fee contracts are permitted in this jurisdiction because they
redound to the benefit of the poor client and the lawyer especially in
cases where the client has meritorious cause of action, but no means
with which to pay for legal services unless he can, with the sanction of
law, make a contract for a contingent fee to be paid out of the proceeds
of litigation. Oftentimes, the contingent fee arrangement is the only
means by which the poor clients can have their rights vindicated and
upheld. Further, such contracts are sanctioned by Canon 13 of the
Canons of Professional Ethics.[47]
However, in cases where contingent fees are sanctioned by law, the
same should be reasonable under all the circumstances of the case, and
should always be subject to the supervision of a court, as to its
reasonableness, such that under Canon 20 of the Code of Professional
Responsibility, a lawyer is tasked to charge only fair and reasonable
fees.[48]
A stipulation on a lawyers compensation in a written contract for
professional services ordinarily controls the amount of fees that the
contracting lawyer may be allowed, unless the court finds such stipulated
amount to be unreasonable or unconscionable. If the stipulated amount
for attorneys fees is excessive, the contract may be disregarded even if
the client expressed their conformity thereto.[49] Attorneys fees are
unconscionable if they affront ones sense of justice, decency or
reasonableness, or if they are so disproportionate to the value of the
services rendered. In such a case, courts are empowered to reduce the
attorneys fee or fix a reasonable amount thereof taking into consideration
the surrounding circumstances and the established parameters.[50]
The principle of quantum meruit (as much as he deserves) may be a
basis for determining the reasonable amount of attorneys fees. Quantum
meruit is a device to prevent undue enrichment based on the equitable
postulate that it is unjust for a person to retain benefit without paying for
it. It is applicable even if there was a formal written contract for attorneys
fees as long as the agreed fee was found by the court to be
unconscionable. In fixing a reasonable compensation for the services
rendered by a lawyer on the basis ofquantum meruit, factors such as the
time spent, and extent of services rendered; novelty and difficulty of the
questions involved; importance of the subject matter; skill demanded;
probability of losing other employment as a result of acceptance of the
proferred case; customary charges for similar services; amount involved
in the controversy and the benefits resulting to the client; certainty of
compensation; character of employment; and professional standing of
the lawyer, may be considered.[51]
It appears that the non-EPIRA separated members chose petitioner as
their counsel because the latter, as former member of the NAPOCOR-
WFBT for two terms or four years, is familiar and knowledgeable on the
operation of the NAPOCOR Welfare Fund.[52] Yet, according to the
contingency fee contract agreement between petitioner and the non-
EPIRA separated members, petitioner received no acceptance fee and
appearance/meeting fee when he took on the non-EPIRA separated
members case. Petitioners attorneys fees were absolutely dependent on
the success of non-EPIRA separated members claim on the NAPOCOR
Welfare Fund. Despite these circumstances, petitioner worked diligently
in advocating the claims of the non-EPIRA separated members against
respondents as shown by the following: (1) petitioner took pains in
verifying the identity and claim of each of the 559 non-EPIRA separated
members on the NAPOCOR Welfare Fund; (2) petitioner prepared and
filed a well-researched and well-argued petition with the RTC for the
claims of the non-EPIRA separated members;[53] (3) he prepared and
presented several witnesses and numerous pertinent documents before
PINEDAPCGRNMAN
the RTC in support of their application for the issuance of a temporary
restraining order and/or writ of preliminary injunction against
respondents plan to exclude the non-EPIRA separated members from
receiving their shares in the NAPOCOR Welfare Fund; (4) he
participated, as non-EPIRA separated members counsel, in the conduct
of several hearings regarding the said application for the issuance of
temporary restraining order and/or writ of preliminary injunction;[54] (5) he
obtained a temporary restraining order and a writ of preliminary
injunction from the RTC which enjoined/prohibited respondents from
excluding the non-EPIRA separated members from their shares in the
NAPOCOR Welfare Fund;[55] (6) he held numerous conferences with the
non-EPIRA separated members wherein he apprised the latter of the
status of their claims and his legal strategies pertinent thereto;[56] and (7)
he exerted utmost efforts which eventually led to the execution of the
Compromise Agreement between the non-EPIRA separated members
and respondents.
By reason of petitioners dedication and persistence as can be gleaned
above, respondents finally agreed to settle amicably with the non-EPIRA
separated members as regards the latters claim for shares in the
NAPOCOR Welfare Fund by virtue of the Compromise Agreement.
Undoubtedly, were it not for petitioners vigilance and zeal, respondents
would not have executed the Compromise Agreement with the non-
EPIRA separated members.Hence, it is fair to conclude that petitioner
was entitled to a reasonably high compensation.
However, petitioners attorneys fees in the amount of P17,794,572.70 or
equivalent to 15% of the P 119,196,000.00 corrected earnings
differential of the non-EPIRA separated members should be equitably
reduced.
In NPC Drivers and Mechanics Association (NPC DAMA) v. The National
Power Corporation (NPC),[57] we awarded separation pay in lieu of
reinstatement plus backwages to several NPC employees because they
were illegally dismissed by the NPC. The NPC employees were
represented by a certain Atty. Cornelio P. Aldon (Atty. Aldon) and Atty.
Victoriano V. Orocio, (the petitioner in the instant cases) under a legal
retainer agreement which provides: (1) no acceptance fee; (2)
miscellaneous/out of pocket expenses in the amount of P25,000.00; and
(3) twenty-five percent (25%) of whatever amounts/monies are
recovered in favor of said NPC personnel contingent on the success of
the case. Atty. Aldon and Atty. Orocio filed a Motion for Approval of
Charging (Attorneys) Lien pursuant to the legal retainer
agreement. Although we granted the said motion, we reduced the
amount of attorneys fees which was chargeable on the monies
recoverable by the NPC employees from 25% to 10% because:
While we duly recognize the right of Atty. Aldon and Atty. Orocio to a
charging lien on the amounts recoverable by petitioners pursuant to our
26 September 2006 Decision, nevertheless, we deem it proper to reduce
the same. Under Section 24, Rule 138 of the Rules of Court, a written
contract for services shall control the amount to be paid therefor unless
found by the court to be unconscionable or unreasonable. The amounts
which petitioners may recover as the logical and necessary
consequence of our Decision of 26 September 2006, i.e., backwages
and separation pay (in lieu of reinstatement), are essentially the same
awards which we grant to illegally dismissed employees in the private
sector. In such cases, our Labor Code explicitly limits attorneys fees to
a maximum of 10% of the recovered amount. Considering by analogy
the said limit on attorneys fees in this case of illegal dismissal of
petitioners by respondent NPC, a government-owned and controlled
corporation; plus the facts that petitioners have suffered deprivation of
their means of livelihood for the last five years; and the fact that this case
Page 343
was originally filed before us, without any judicial or administrative
proceedings below; as well as the fundamental ethical principle that the
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
practice of law is a profession and not a commercial enterprise, we
approve in favor of Atty. Aldon and Atty. Orocio a charging lien of 10%
(instead of 25%) on the amounts recoverable by petitioners from NPC
pursuant to our Decision dated 26 September 2006.
The abovementioned case may be reasonably applied by analogy in the
instant case since they have substantially similar circumstances. In the
case before us, although the non-EPIRA separated members were not
illegally dismissed, they were, nevertheless, separated from work by
reason of EPIRA. In addition, the non-EPIRA separated members had a
legal retainer agreement/contingency fee contract with petitioner as their
counsel.
It should also be emphasized that the practice of law is a profession not
a moneymaking venture. A lawyer is not merely the defender of his
clients cause and a trustee of his clients cause of action and assets; he
is also, and first and foremost, an officer of the court and participates in
the fundamental function of administering justice in society. It follows that
a lawyers compensation for professional services rendered is subject to
the supervision of the court, not just to guarantee that the fees he
charges and receives remain reasonable and commensurate with the
services rendered, but also to maintain the dignity and integrity of the
legal profession to which he belongs. Upon taking his attorneys oath as
an officer of the court, a lawyer submits himself to the authority of the
courts to regulate his right to charge professional fees.[58]
Thus, taking into account the foregoing circumstances and recognized
principles, the 15% attorneys fees of petitioner should
be reduced to 10%. As such, petitioner is entitled to collect only, as
attorneys fees, an amount equivalent to 10% of
the P119,196,000.00 or P11,919,600.00.
We note, however, that the compromise agreement was partially
implemented in the first week of April 2006 with the payment
of P23,416,000.00 to some non-EPIRA separated
members.[59] Petitioner admitted having already received an amount
of P3,512,007.32 as his attorneys fees on the said partial payment
of P23,416,000.00.[60]Accordingly, the amount of P3,512,007.32
received by petitioner as attorneys fees should be deducted from the
fixed 10% attorneys fees or the amount of P11,919,600.00. Per
computation, petitioner is entitled to recover the amount
of P8,407,592.68 as attorneys fees.
WHEREFORE, premises considered, the Resolution of the Court of
Appeals dated 31 October 2006 in CA-G.R. SP Nos. 95786 and 95946
granting the issuance of a writ of preliminary injunction is
hereby ANNULLED and SET ASIDE. The Decision and Resolution,
dated 29 January 2007 and 27 September 2007, respectively, of the
Court of Appeals in CA-G.R. SP Nos. 95786 and 95946 are
hereby AFFIRMED with the MODIFICATION that petitioner is entitled to
recover attorneys fees in the amount ofP8,407,592.68 on the corrected
earnings differential of the non-EPIRA separated members. No costs.
SO ORDERED.
G.R. No. 73886 January 31, 1989
JOHN C. QUIRANTE and DANTE CRUZ, petitioners,
vs.
THE HONORABLE INTERMEDIATE APPELLATE COURT, MANUEL
C. CASASOLA, and ESTRELLITA C. CASASOLA, respondents.
Quirante & Associates Law Office for petitioners.
R.S. Bernaldo & Associates for private respondents.
REGALADO, J.:
PINEDAPCGRNMAN
This appeal by certiorari seeks to set aside the judgment' 1 of the former
Intermediate Appellate Court promulgated on November 6, 1985 in AC-
G.R. No. SP-03640, 2 which found the petition for certiorari therein
meritorious, thus:
Firstly, there is still pending in the Supreme Court a petition which may
or may not ultimately result in the granting to the Isasola (sic) family of
the total amount of damages given by the respondent Judge. Hence the
award of damages confirmed in the two assailed Orders may
be premature. Secondly, assuming that the grant of damages to the
family is eventually ratified, the alleged confirmation of attorney's fees
will not and should not adversely affect the non-signatories thereto.
WHEREFORE, in view of the grave abuse of discretion (amounting to
lack of jurisdiction) committed by the respondent Judge, We hereby SET
ASIDE his questioned orders of March 20, 1984 and May 25, 1984. The
restraining order previously issued is made permanent. 3
The challenged decision of respondent court succinctly sets out the
factual origin of this case as follows:
... Dr. Indalecio Casasola (father of respondents) had a contract with a
building contractor named Norman GUERRERO. The Philippine
American General Insurance Co. Inc. (PHILAMGEN, for short) acted as
bondsman for GUERRERO. In view of GUERRERO'S failure to perform
his part of the contract within the period specified, Dr. Indalecio
Casasola, thru his counsel, Atty. John Quirante, sued both GUERRERO
and PHILAMGEN before the Court of first Instance of Manila, now the
Regional Trial Court (RTC) of Manila for damages, with PHILAMGEN
filing a cross-claim against GUERRERO for indemnification. The RTC
rendered a decision dated October 16, 1981. ... 4
In said decision, the trial court ruled in favor of the plaintiff by rescinding
the contract; ordering GUERRERO and PHILAMGEN to pay the plaintiff
actual damages in the amount of P129,430.00, moral damages in the
amount of P50,000.00, exemplary damages in the amount of P40,000.00
and attorney's fees in the amount of P30,000.00; ordering Guerrero
alone to pay liquidated damages of P300.00 a day from December 15,
1978 to July 16, 1979; and ordering PHILAMGEN to pay the plaintiff the
amount of the surety bond equivalent to P120,000.00. 5 A motion for
reconsideration filed by PHILAMGEN was denied by the trial court on
November 4, 1982. 6
Not satisfied with the decision of the trial court, PHILAMGEN filed a
notice of appeal but the same was not given due course because it was
allegedly filed out of time. The trial court thereafter issued a writ of
execution. 7
A petition was filed in AC-G.R. No. 00202 with the Intermediate Appellate
Court for the quashal of the writ of execution and to compel the trial court
to give due course to the appeal. The petition was dismissed on May 4,
1983 8 so the case was elevated to this Court in G.R. No. 64334. 9 In the
meantime, on November 16, 1981, Dr. Casasola died leaving his widow
and several children as survivors. 10
On June 18, 1983, herein petitioner Quirante filed a motion in the trial
court for the confirmation of his attorney's fees. According to him, there
was an oral agreement between him and the late Dr. Casasola with
regard to his attorney's fees, which agreement was allegedly confirmed
in writing by the widow, Asuncion Vda. de Casasola, and the two
daughters of the deceased, namely Mely C. Garcia and Virginia C.
Nazareno. Petitioner avers that pursuant to said agreement, the
attorney's fees would be computed as follows:
A. In case of recovery of the P120,000.00 surety bond, the attorney's
fees of the undersigned counsel (Atty. Quirante) shall be P30,000.00.
B. In case the Honorable Court awards damages in excess of the
P120,000.00 bond, it shall be divided equally between the Heirs of I.
Casasola, Atty. John C. Quirante and Atty. Dante Cruz.
The trial court granted the motion for confirmation in an order dated
March 20, 1984, despite an opposition thereto. It also denied the motion
for reconsideration of the order of confirmation in its second order dated
May 25, 1984. 11
Page 344
These are the two orders which are assailed in this case.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Well settled is the rule that counsel's claim for attorney's fees may be
asserted either in the very action in which the services in question have
been rendered, or in a separate action. If the first alternative is chosen,
the Court may pass upon said claim, even if its amount were less than
the minimum prescribed by law for the jurisdiction of said court, upon the
theory that the right to recover attorney's fees is but an incident of the
case in which the services of counsel have been rendered ." 12 It also
rests on the assumption that the court trying the case is to a certain
degree already familiar with the nature and extent of the lawyer's
services. The rule against multiplicity of suits will in effect be
subserved. 13
What is being claimed here as attorney's fees by petitioners is, however,
different from attorney's fees as an item of damages provided for under
Article 2208 of the Civil Code, wherein the award is made in favor of the
litigant, not of his counsel, and the litigant, not his counsel, is the
judgment creditor who may enforce the judgment for attorney's fees by
execution. 14 Here, the petitioner's claims are based on an alleged
contract for professional services, with them as the creditors and the
private respondents as the debtors.
In filing the motion for confirmation of attorney's fees, petitioners chose
to assert their claims in the same action. This is also a proper remedy
under our jurisprudence. Nevertheless, we agree with the respondent
court that the confirmation of attorney's fees is premature. As it correctly
pointed out, the petition for review on certiorari filed by PHILAMGEN in
this Court (G.R. No. 64834) "may or may not ultimately result in the
granting to the Isasola (sic) family of the total amount of damages"
awarded by the trial court. This especially true in the light of subsequent
developments in G.R. No. 64334. In a decision promulgated on May 21,
1987, the Court rendered judgment setting aside the decision of May 4,
1983 of the Intermediate Appellate Court in AC-G.R. No. 00202 and
ordering the respondent Regional Trial Court of Manila to certify the
appeal of PHILAMGEN from said trial court's decision in Civil Case No.
122920 to the Court of Appeal. Said decision of the Court became final
and executory on June 25, 1987.
Since the main case from which the petitioner's claims for their fees may
arise has not yet become final, the determination of the propriety of said
fees and the amount thereof should be held in abeyance. This procedure
gains added validity in the light of the rule that the remedy for recovering
attorney's fees as an incident of the main action may be availed of only
when something is due to the client. Thus, it was ruled that:
... an attorney's fee cannot be determined until after the main litigation
has been decided and the subject of recovery is at the disposition of the
court. The issue over attorney's fee only arises when something has
been recovered from which the fee is to be paid. 15
It is further observed that the supposed contract alleged by petitioners
as the basis for their fees provides that the recovery of the amounts
claimed is subject to certain contingencies. It is subject to the condition
that the fee shall be P30,000.00 in case of recovery of the P120,000.00
surety bond, plus an additional amount in case the award is in excess of
said P120,000.00 bond, on the sharing basis hereinbefore stated.
With regard to the effect of the alleged confirmation of the attorney's fees
by some of the heirs of the deceased. We are of the considered view that
the orderly administration of justice dictates that such issue be likewise
determined by the court a quo inasmuch as it also necessarily involves
the same contingencies in determining the propriety and assessing the
extent of recovery of attorney's fees by both petitioners herein. The court
below will be in a better position, after the entire case shall have been
adjudicated, inclusive of any liability of PHILAMGEN and the respective
participations of the heirs of Dr. Casasola in the award, to determine with
evidentiary support such matters like the basis for the entitlement in the
fees of petitioner Dante Cruz and as to whether the agreement allegedly
entered into with the late Dr. Casasola would be binding on all his heirs,
as contended by petitioner Quirante.
We, therefore, take exception to and reject that portion of the decision of
the respondent court which holds that the alleged confirmation to
attorney's fees should not adversely affect the non-signatories thereto,
PINEDAPCGRNMAN
since it is also premised on the eventual grant of damages to the
Casasola family, hence the same objection of prematurity obtains and
such a holding may be pre-emptive of factual and evidentiary matters
that may be presented for consideration by the trial court.
WHEREFORE, with the foregoing observation, the decision of the
respondent court subject of the present recourse is hereby AFFIRMED.
SO ORDERED.
G.R. No. 86100-03 January 23, 1990
METROPOLITAN BANK AND TRUST COMPANY, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and ARTURO ALAFRIZ
and ASSOCIATES, respondents.
Bautista, Picazo, Buyco, Tan & Fider for petitioner.
Arturo A. Alafriz & Associates for and in their own behalf.
REGALADO, J.:
This petition for review on certiorari impugns the decision of the Court of
Appeals in CA-G.R. Nos. 08265-08268 1affirming the order of Branch
168, Regional Trial Court, National Capital Judicial Region, in Civil
Cases Nos. 19123-28, 19136 and 19144, fixing attorney's fees and
directing herein petitioner Metropolitan Bank and Trust Company
(Metrobank, for brevity), as defendant in said civil cases, to pay its
attorneys, herein private respondent Arturo Alafriz and Associates,
movant therein, the amount of P936,000.00 as attorney's fees on
a quantum meruit basis.
The records show that from March, 1974 to September, 1983, private
respondent handled the above-mentioned civil cases before the then
Court of First Instance of Pasig (Branches I, II, VI, X, XIII, XIX, XX AND
XXIV) in behalf of petitioner. 2 The civil cases were all for the declaration
of nullity of certain deeds of sale, with damages.
The antecedental facts 3 which spawned the filing of said actions are
undisputed and are hereinunder set forth as found by the trial court and
adopted substantially in the decision of respondent court. A certain
Celedonio Javier bought seven (7) parcels of land owned by Eustaquio
Alejandro, et al., with a total area of about ten (10) hectares. These
properties were thereafter mortgaged by Javier with the petitioner to
secure a loan obligation of one Felix Angelo Bautista and/or International
Hotel Corporation. The obligors having defaulted, petitioner foreclosed
the mortgages after which certificates of sale were issued by the
provincial sheriff in its favor as purchaser thereof Subsequently,
Alejandro, alleging deceit, fraud and misrepresentation committed
against him by Javier in the sale of the parcels of land, brought suits
against Javier et al., and included petitioner as defendant therein.
It was during the pendency of these suits that these parcels of land were
sold by petitioner to its sister corporation, Service Leasing Corporation
on March 23, 1983 for the purported price of P600,000.00. On the same
day, the properties were resold by the latter to Herby Commercial and
Construction Corporation for the purported price of P2,500,000.00.
Three months later, or on June 7, 1983, Herby mortgaged the same
properties with Banco de Oro for P9,200,000.00. The lower court found
that private respondent, did not have knowledge of these transfers and
transactions.
As a consequence of the transfer of said parcels of land to Service
Leasing Corporation, petitioner filed an urgent motion for substitution of
party on July 28, 1983. Private respondent, on its part, filed on August
16, 1983 a verified motion to enter in the records of the aforesaid civil
cases its charging lien, pursuant to Section 37, Rule 138 of the Rules of
Court, equivalent to twenty-five percent (25%) of the actual and current
market values of the litigated properties as its attorney's fees. Despite
due notice, petitioner failed to appear and oppose said motion, as a result
of which the lower court granted the same and ordered the, Register of
Deeds of Rizal to annotate the attorney's liens on the certificates of title
Page 345
of the parcels of land.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Meanwhile, the plaintiffs Alejandro, et al. in the aforesaid civil cases,
which had been consolidated and were pending before the Regional Trial
Court of Pasig, filed a motion to dismiss their complaints therein, which
motion the lower court granted with prejudice in its order dated
September 5, 1983. On December 29, 1983, the same court ordered the
Register of Deeds to annotate the attorney's liens of private respondent
on the derivative titles which cancelled Transfer Certificates of Title Nos.
453093 to 453099 of the original seven (7) parcels of land hereinbefore
adverted to.
On May 28,1984, private respondent filed a motion to fix its attorney's
fees, based on quantum meruit, which motion precipitated an exchange
of arguments between the parties. On May 30, 1984, petitioner
manifested that it had fully paid private respondent; the latter, in turn,
countered that the amount of P50,000.00 given by petitioner could not
be considered as full payment but merely a cash advance, including the
amount of P14,000.00 paid to it on December 15, 1980. It further appears
that private respondent attempted to arrange a compromise with
petitioner in order to avoid suit, offering a compromise amount of
P600,000.00 but the negotiations were unsuccessful.
Finally, on October 15,1984, the court a quo issued the order assailed
on appeal before respondent court, granting payment of attorney's fees
to private respondent, under the following dispositive portion:
PREMISES CONSIDERED, the motion is hereby granted and the
Metropolitan Bank and Trust Company (METROBANK) and Herby
Commercial and Construction Corporation 4 are hereby ordered to pay
the movant Arturo Alafriz and Associates the amount of P936,000.00 as
its proper, just and reasonable attorney's fees in these cases. 5
On appeal, respondent court affirmed the order of the trial court in its
decision promulgated on February 11, 1988. A motion for
reconsideration, dated March 3, 1988, was filed by petitioner but the
same was denied in a resolution promulgated on November 19, 1988,
hence the present recourse.
The issues raised and submitted for determination in the present petition
may be formulated thus: (1) whether or not private respondent is entitled
to the enforcement of its charging lien for payment of its attorney's fees;
(2) whether or not a separate civil suit is necessary for the enforcement
of such lien and (3) whether or not private respondent is entitled to
twenty-five (25%) of the actual and current market values of the litigated
properties on aquantum meruit basis.
On the first issue, petitioner avers that private respondent has no
enforceable attorney's charging lien in the civil cases before the court
below because the dismissal of the complaints therein were not, in the
words of Section 37, Rule 138, judgments for the payment of money or
executions issued in pursuance of such judgments. 6
We agree with petitioner.
On the matter of attorney's liens Section 37, Rule 138 provides:
. . . He shall also have a lien to the same extent upon all judgments for
the payment of money, and executions issued in pursuance of such
judgments, which he has secured in a litigation of his client, from and
after the time when he shall have caused a statement of his claim of such
lien to be entered upon the records of the court rendering such judgment,
or issuing such execution, and shall have caused written notice thereof
to be delivered to his client and to the adverse party; and he shall have
the same right and power over such judgments and executions as his
client would have to enforce his lien and secure the payment of his just
fees and disbursements.
Consequent to such provision, a charging lien, to be enforceable as
security for the payment of attorney's fees, requires as a condition sine
qua non a judgment for money and execution in pursuance of such
judgment secured in the main action by the attorney in favor of his client.
A lawyer may enforce his right to fees by filing the necessary petition as
an incident in the main action in which his services were rendered when
something is due his client in the action from which the fee is to be paid. 7
In the case at bar, the civil cases below were dismissed upon the
initiative of the plaintiffs "in view of the frill satisfaction of their
claims." 8 The dismissal order neither provided for any money judgment
PINEDAPCGRNMAN
nor made any monetary award to any litigant, much less in favor of
petitioner who was a defendant therein. This being so, private
respondent's supposed charging lien is, under our rule, without any legal
basis. It is flawed by the fact that there is nothing to generate it and to
which it can attach in the same manner as an ordinary lien arises and
attaches to real or personal property.
In point is Morente vs. Firmalino, 9 cited by petitioner in support of its
position. In that case, movant-appellant attorney sought the payment of
his fees from his client who was the defendant in a complaint for
injunction which was dismissed by the trial court after the approval of an
agreement entered into by the litigants. This Court held:
. . . The defendant having suffered no actual damage by virtue of the
issuance of a preliminary injunction, it follows that no sum can be
awarded the defendant for damages. It becomes apparent, too, that no
amount having been awarded the defendant, herein appellant's lien
could not be enforced. The appellant, could, by appropriate action,
collect his fees as attorney.
Private respondent would nevertheless insist that the lien attaches to the
"proceeds of a judgment of whatever nature," 10 relying on the case
of Bacolod-Murcia Milling Co. Inc. vs. Henares 11 and some American
cases holding that the lien attaches to the judgment recovered by an
attorney and the proceeds in whatever form they may be. 12
The contention is without merit just as its reliance is misplaced. It is true
that there are some American cases holding that the lien attaches even
to properties in litigation. However, the statutory rules on which they are
based and the factual situations involved therein are neither explained
nor may it be said that they are of continuing validity as to be applicable
in this jurisdiction. It cannot be gainsaid that legal concepts of foreign
origin undergo a number of variegations or nuances upon adoption by
other jurisdictions, especially those with variant legal systems.
In fact, the same source from which private respondent culled the
American cases it cited expressly declares that "in the absence of a
statute or of a special agreement providing otherwise, the general rule is
that an attorney has no lien on the land of his client, notwithstanding such
attorney has, with respect to the land in question, successfully
prosecuted a suit to establish the title of his client thereto, recovered title
or possession in a suit prosecuted by such client, or defended
successfully such client's right and title against an unjust claim or an
unwarranted attack," 13 as is the situation in the case at bar. This is an
inescapable recognition that a contrary rule obtains in other jurisdictions
thereby resulting in doctrinal rulings of converse or modulated import.
To repeat, since in our jurisdiction the applicable rule provides that a
charging lien attaches only to judgments for money and executions in
pursuance of such judgment, then it must be taken in haec verba. The
language of the law is clear and unequivocal and, therefore, it must be
taken to mean exactly what it says, barring any necessity for elaborate
interpretation. 14
Notably, the interpretation, literal as it may appear to be, is not without
support in Philippine case law despite the dearth of cases on all fours
with the present case. In Caina et al. vs. Victoriano, et al., 15 the Court
had the occasion to rule that "the lien of respondent is not of a nature
which attaches to the property in litigation but is at most a personal claim
enforceable by a writ of execution." In Ampil vs. Juliano-Agrava, et
al., 16 the Court once again declared that a charging lien "presupposes
that the attorney has secured a favorable money judgment for his client
. . ." Further, in Director of Lands vs. Ababa, et al., 17 we held that "(a)
charging lien under Section 37, Rule 138 of the Revised Rules of Court
is limited only to money judgments and not to judgments for the
annulment of a contract or for delivery of real property as in the instant
case."
Even in the Bacolod-Murcia Milling case, which we previously noted as
cited by private respondent, there was an express declaration that "in
this jurisdiction, the lien does not attach to the property in litigation."
Indeed, an attorney may acquire a lien for his compensation upon money
Page 346
due his client from the adverse party in any action or proceeding in which
the attorney is employed, but such lien does not extend to land which is
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
the subject matter of the litigation. 18 More specifically, an attorney
merely defeating recovery against his client as a defendant is not entitled
to a lien on the property involved in litigation for fees and the court has
no power to fix the fee of an attorney defending the client's title to
property already in the client's
possession. 19
While a client cannot defeat an attorney's right to his charging lien by
dismissing the case, terminating the services of his counsel, waiving his
cause or interest in favor of the adverse party or compromising his
action, 20this rule cannot find application here as the termination of the
cases below was not at the instance of private respondent's client but of
the opposing party.
The resolution of the second issue is accordingly subsumed in the
preceding discussion which amply demonstrates that private respondent
is not entitled to the enforcement of its charging lien.
Nonetheless, it bears mention at this juncture that an enforceable
charging lien, duly recorded, is within the jurisdiction of the court trying
the main case and this jurisdiction subsists until the lien is
settled. 21 There is certainly no valid reason why the trial court cannot
pass upon a petition to determine attorney's fees if the rule against
multiplicity of suits is to be activated. 22 These decisional rules, however,
apply only where the charging lien is valid and enforceable under the
rules.
On the last issue, the Court refrains from resolving the same so as not
to preempt or interfere with the authority and adjudicative facility of the
proper court to hear and decide the controversy in a proper proceeding
which may be brought by private respondent.
A petition for recovery of attorney's fees, either as a separate civil suit or
as an incident in the main action, has to be prosecuted and the
allegations therein established as any other money claim. The persons
who are entitled to or who must pay attorney's fees have the right to be
heard upon the question of their propriety or amount. 23Hence, the
obvious necessity of a hearing is beyond cavil.
Besides, in fixing a reasonable compensation for the services rendered
by a lawyer on the basis of quantum meruit, the elements to be
considered are generally (1) the importance of the subject matter in
controversy, (2) the extent of the services rendered, and (3) the
professional standing of the lawyer. 24 These are aside from the several
other considerations laid down by this Court in a number of decisions as
pointed out by respondent court. 25 A determination of all these factors
would indispensably require nothing less than a full-blown trial where
private respondent can adduce evidence to establish its right to lawful
attorney's fees and for petitioner to oppose or refute the same.
Nothing in this decision should, however, be misconstrued as imposing
an unnecessary burden on private respondent in collecting the fees to
which it may rightfully be entitled. But, as in the exercise of any other
right conferred by law, the proper legal remedy should be availed of and
the procedural rules duly observed to forestall and obviate the possibility
of abuse or prejudice, or what may be misunderstood to be such, often
to the undeserved discredit of the legal profession.
Law advocacy, it has been stressed, is not capital that yields profits. The
returns it births are simple rewards for a job done or service rendered. It
is a calling that, unlike mercantile pursuits which enjoy a greater deal of
freedom from government interference, is impressed with public interest,
for which it is subject to State regulation. 26
ACCORDINGLY, the instant petition for review is hereby GRANTED and
the decision of respondent Court of Appeals of February 11, 1988
affirming the order of the trial court is hereby REVERSED and SET
ASIDE, without prejudice to such appropriate proceedings as may be
brought by private respondent to establish its right to attorney's fees and
the amount thereof.
SO ORDERED.
PINEDAPCGRNMAN
[G.R. No. 124074. January 27, 1997]
RESEARCH and SERVICES REALTY, INC., petitioner, vs. COURT
OF APPEALS and MANUEL S. FONACIER, JR., respondents.
DECISION
DAVIDE, JR., J.:
This petition for review on certiorari under Rule 45 of the Rules of Court
questions the propriety of the award for, and the reasonableness of the
amount of, attorney's fees granted in favor of the private respondent by
the Regional Trial Court (RTC) of Makati City, Branch 64,[1] in Civil Case
No. 612,[2] which the Court of Appeals affirmed in its decision[3] of 31
March 1995 in CA-G.R. CV No. 44839.
The undisputed facts are as follows:
On 3 November 1969, the petitioner entered into a Joint Venture
Agreement with Jose, Fidel, and Antonia Carreon. Under the said
agreement, the petitioner undertook to develop, subdivide, administer,
and promote the sale of the parcels of land owned by the Carreons. The
proceeds of the sale of the lots were to be paid to the Philippine National
Bank (PNB) for the landowner's mortgage obligation, and the net profits
to be shared by the contracting parties on a 50-50 basis.
On 4 April 1983, the Carreons and a certain Patricio C. Sarile instituted
before the RTC of Makati City an action against the petitioner for
rescission of the Joint Venture Agreement.They prayed therein that
pending the hearing of the case, a writ of preliminary injunction be issued
to enjoin the petitioner from selling the lots subject of the agreement and
that after hearing, the writ be made permanent; the agreement be
rescinded; and the petitioner be ordered to pay the PNB the stipulated
15% per annum of the outstanding obligation and to pay the plaintiffs
attorney's fees, exemplary damages, expenses of litigation, and costs of
suit. This case was docketed as Civil Case No. 612 at Branch 64 of the
said court.
In its answer, which was prepared and signed by Atty. Apolonio G.
Reyes, the petitioner sought the denial of the writ of preliminary
injunction, the dismissal of the complaint, and payment in its favor of
(a) P10 million by way of actual damages; (b) P5 million by way of return
to the petitioner of the amount advanced to the Carreons, payments to
the PNB, and cost of the work on the subdivision; (c) P100,000.00 by
way of exemplary damages; (d) any and all damages up to the amount
of P4,638,420.00 which the petitioner may suffer under the terms of its
Performance Bond in favor of the National Housing Authority;
(e) P50,000.00 as attorney's fees; and (f) costs of suit.
On 9 April 1985, the petitioner engaged the services of private
respondent Atty. Manuel S. Fonacier, Jr., [4] who then entered his
appearance in Civil Case No. 612.
While the said case was pending, or on 24 July 1992, the petitioner,
without the knowledge of the private respondent, entered into a
Memorandum of Agreement (MOA)[5] with another land developer,
Filstream International, Inc. (hereinafter Filstream). Under this MOA, the
former assigned its rights and obligations under the Joint Venture
Agreement in favor of the latter for a consideration of P28 million,
payable within twenty-four months.
On 31 March 1993, the petitioner terminated the legal services of the
private respondent. At the time the petitioner had already received P7
million from Filstream.
Upon knowing the existence of the MOA, the private respondent filed in
Civil Case No. 612 an Urgent Motion to Direct Payment of Attorney's
Fees and/or Register Attorney's Charging Lien praying, among other
things, that the petitioner be ordered to pay him the sum of P700,000.00
as his contingent fee in the case.[6]
After hearing the motion, the trial court issued an order dated 11 October
1993 directing the petitioner to pay the private respondent the sum
of P600,000.00 as attorney's fees on the basis of quantum meruit.
The trial court justified the award in this manner:
Insofar as material to the resolution of this Motion the records of this case
show that movant Atty. Fonacier became the counsel of defendant
Page 347
Research in May 1985 while this case has been in progress. (Records,
p.770). By this time also, the defendant Research has been enjoined by
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
the Court from executing Contracts To Sell involving Saranay Homes
Subdivision . . . . (Order dated December 3, 1984, Records pp. 625-
626). However, the said counsel for defendant Research prepared for
the latter various pleadings and represented it in Court (See Records
after May 1985). Until his services were terminated the lawyer client
relationship between Atty. Fonacier and Research was governed by a
"contract" embodied in a letter addressed to Atty. Fonacier on April 19,
1985 [sic], the pertinent portion of which is reproduced below, as follows
...
xxx
Soon after said letter, cases were referred to him including this case. In
accordance with their agreement, there were instances that Research
gave Atty. Fonacier ten (10%) percent of the amount received as the
latter's attorney's fees pursuant to their agreement.
The instant case in which defendant is praying to be awarded attorney's
fees, is an action for rescission of the Joint Venture Agreement between
plaintiffs, Patricio Sarile, et al., as owners of a parcel of land and
defendant Research & Service Realty, Inc., as developer of the land. At
the time Atty. Fonacier entered his appearance as counsel for defendant
Research, the Court has issued a preliminary injunction against
Research. Thus all developmental and commercial activities of
defendant had to stop. In this regard, Atty. Fonacier did spade work
towards persuading the plaintiffs to agree to the relaxation of the effects
of the injunction to pave the way to a negotiation with a third-party, the
Filstream. Atty. Fonancier's efforts were complemented by the efforts of
his counterpart in the plaintiff's side. The third-party Filstream Inc.,
became the assignee of defendant Research. In this connection, a
memorandum of agreement was entered into between them. By the
terms of agreement, defendant Research will be receiving from the third
party Filstream International, Inc. (Filstream) the following amount. . . .
xxx
The termination of the legal services of Atty. Fonacier was made definite
on March 31, 1993 at which time the Memorandum of Agreement which
Research entered into with Filstream, Inc., has already been
effective. By this time also, defendant Research has already received the
first two stipulated consideration of the agreement in the total sum of Six
Million (P6,000,000.00). The necessary and legal consequence of said
"Memorandum of Agreement" is the termination of the case insofar as
plaintiff Patricio Sarile, et al. and defendant Research is concerned. The
conclusion of the Memorandum of Agreement insofar as the cause of
Research is concerned, is a legal victory for defendant Research. What
could have been a loss in investment has been turned to a legal victory.
Atty. Fonancier's effort contributed to defendant's victory, albeit outside
the Court which would not have been possible without the legal
maneuvering of a lawyer.
The dismissal of the case before this Court will come in a matter of time
considering that plaintiffs, with the assumption by the third party,
Filstream Inc., of what were supposed to be the obligations to them of
defendant Research pursuant to their Joint Venture Agreement, is no
longer interested in pursuing the rescission.
It is a matter of record that Atty. Fonacier is the last of the three lawyers
who handled this case. Moreover it is Atty. Fonacier who contributed to
the forging of the memorandum of agreement as testified to by Atty.
Rogel Atienza one of the two retained counsels of plaintiffs.
Considering the importance which is attached to this case, certainly it
would not be fair for Atty. Fonacier if his attorney's fees in this case would
be equated only to the measly monthly allowance of (P800.00) Pesos
and office space and other office facilities provided by defendant
Research. Ten (10%) per cent of the amount which Research had
received from Filstream at the time of the termination of a lawyer-client
relationship between Atty. Fonacier and Research or P600,000.00 will
be a just and equitable compensation for Atty. Fonancier's legal services,
by way of quantum meruit (See Cabildo v. Provincial Treasurer, Ilocos
Norte, et al., 54 SCRA 26).[7]
In its Order[8] of 12 January 1994, the trial court denied the petitioner's
motion for reconsideration of the above order.
PINEDAPCGRNMAN
The petitioner appealed to the Court of Appeals. In its Appellant's
Brief,[9] the petitioner alleged that the private respondent was not entitled
to attorney's fees under the retainer contract.Moreover, the private
respondent did not exert any effort to amicably settle the case, nor was
he even present during the negotiations for the settlement of the
same. There was, therefore, no legal and factual justification for the
private respondent's "fantastic and unreasonable claim for attorney's
fees of P600,000.00."
On the other hand, the private respondent asserted that he was assured
by the petitioner that non-collection cases were included in the
contingent fee arrangement specified in the retainer contract wherein
there was to be contingent compensation for any award arising from any
lawsuit handled by him. According to him, Civil Case No. 612 was not
the only "non-collection" case he handled for the petitioner. There was a
"right of way" dispute where the petitioner was awarded P50,000.00, and
the latter paid him P5,000.00, or 10% of the award as attorney's fees. He
thus stressed that since under the memorandum of agreement the
petitioner was to receive P28 million, he should be entitled to 10%
thereof or P2.8 million as attorney's fees.
In its decision [10] of 31 March 1995, the Court of Appeals affirmed the
challenged order of the trial court. It ratiocinated as follows:
Movant-appellee, on the other hand, correctly argues that it was the clear
intention of appellant and counsel to compensate the latter for any legal
services rendered by him to the former. Stated otherwise, it was never
the intention of the parties in the instant appeal that counsel's services
shall be free or to be rendered ex gratia.
xxx
It must in addition be underscored that the retainer contract of April 9,
1985 is the law that governs the relationship between appellant and
appellee. In fact, the following provisions squarely and categorically
supports the award of P600,000.00 to counsel, to wit:
Minimal allowance of P800 per month plus contingent fees and
collection cases (case to case basis) aside from the attorney's fee
recovered from any law suit.
(Paragraph 3, Retainer Contract)
In an American jurisprudence on this point cited in local annotation on
the Canon of Professional Ethics, it was held that "if a lawyer renders
valuable services to one who receives the benefits thereof, a promise to
pay a reasonable value is presumed, unless such services were
intended to be gratuitous" (Young vs. Buere, 78 Cal. Am. 127) In effect,
to compensate a lawyer, we are faced with the pivotal question: "was the
legal services intended to be free or not?" If it is not free, then, appellant
must simply pay. The 10% contingent fee of the amount collected and/or
to be collected in Civil Case No. 612 of the lower court, is, to Our
mind fair and reasonable. As ruled by the Supreme Court in the case of
Cosmopolitan Insurance Co. vs. Angel Reyes (G.R. L-20199, Nov. 23,
1965) 15% was even deemed reasonable. [11]
The petitioner filed a motion for reconsideration [12] on the ground among
other things, that the decision is contrary to the evidence, as the trial
court granted the claim for attorney's fees based on quantum meruit, yet,
the Court of Appeals granted the same on a contingent basis which it
based on an erroneous quotation and comprehension of the following
provision of the retainer contract:
Minimal allowance of P800.00 per month plus contingent fees on
collection cases (case to case basis) aside from the attorney's fees
recovered from any law suit. (underscoring ours) [13]
In its decision, the Court of Appeals substituted the word "on" after
"contingent fees" with the word "and." Under the aforequoted paragraph,
the private respondent was entitled to attorney's fees on contingent basis
in collection cases only. In non collection cases, he was entitled only to
the attorney's fees that might be recovered in the lawsuit. [14] Since Civil
Case No. 612 is not a collection case but an action for rescission of a
contract, then the aforequoted paragraph is not applicable as a basis for
awarding attorney's fees to the private respondent. [15]
Page 348
Finding nothing new in the motion for reconsideration, the Court of
Appeals denied it in the re-solution [16] of 15 February 1996.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
The petitioner then came to us via this petition for review wherein it
contends that
I a. Office space airconditioned
RESPONDENT COURT OF APPEALS HAD DECIDED THE CASE NOT
IN ACCORD WITH LAW AND THE UNDISPUTED FACTS OF THE
CASE.
II
RESPONDENT COURT OF APPEALS COMMITTED GRAVE ABUSE
OF DISCRETION IN AWARDING ON CONTINGENT BASIS
RESPONDENT-APPELLEE'S ATTORNEY'S FEES ON THE BASIS OF
A MEMORANDUM OF AGREEMENT IN WHICH HE HAD NO
PARTICIPATION IN THE NEGOTIATION AND PREPARATION
THEREOF.
III
RESPONDENT COURT OF APPEALS GRAVELY ABUSED ITS
DISCRETION IN AWARDING EXCESSIVE AND UNREASONABLE
ATTORNEY'S FEES.
IV
THE TRIAL COURT AND THE RESPONDENT COURT OF APPEALS
HAVE NO JURISDICTION TO SATISFY ATTORNEY'S CHARGING
LIEN ON A SUM OF MONEY THAT THE COURT HAD NO AUTHORITY
TO DISPOSE OF AND OVER WHICH THE TRIAL COURT HAD MADE
NO FINAL ADJUDICATION.
The petitioner's more important argument in support of the first error is
the Court of Appeals' misquotation of the provision in the retainer
contract regarding attorney's fees on contingent basis, which the
petitioner had stressed in its motion for reconsideration. The petitioner
maintains that under the contract, attorney's fees on contingent basis
could only be awarded incollection cases, and Civil Case No. 612 is not
a collection case. Hence, the Court of Appeals erred in affirming the
award on that basis, while the trial court was correct in applying the
principle of quantum meruit.
In its second assigned error, the petitioner asserts that the private
respondent admitted in his Urgent Motion to Direct Payment of Attorney's
Fees and/or Register Attorney's Charging Lien that he had not
participated in the negotiations and preparation of the memorandum of
agreement, thus:
Despite the dishonest concealment, by the light of Providence coupled
with a streak of good luck, counsel discovered in the first week of March
1993 that the parties had respectively entered into a meaningful
agreement with a third-party as early as July 27, 1992, which in the case
of client, case in the form of a "Memorandum of Agreement" (MOA) . . .
. [17]
The third assigned error is but a logical consequence of the second, and
the petitioner maintains that since the private respondent "did not do
anything spectacular or out of the ordinary" in Civil Case No. 612, "except
to ask for the suspension or postponement of the proceedings thereof
from 1985 to 1993," the P600,000.00 attorney's fees, whether on
contingent basis or quantum meruit, is excessive and unreasonable.
In the fourth imputed error, the petitioner argues that the memorandum
of agreement was never submitted to the trial court, and the trial court
never made any disposition or adjudication over the proceeds of the said
agreement. What would eventually happen then is the dismissal of Civil
Case No. 612, as the trial court itself had intimated in its challenged
order. Necessarily then, there would be no money adjudication in favor
of the petitioner as the defendant therein. Since such lien is collectible
only from an award of money that a court would adjudicate in a judgment
rendered in favor of the attorney's client pursuant to Section 37, Rule 138
of the Rules of Court, it would follow that no attorney's charging lien could
be validly entered.
We uphold the petitioner, but not necessarily on the strength of it
arguments.
The parties are in agreement that the lawyer-client relationship between
the petitioner and the private respondent, Atty. Manuel S. Fonacier, Jr.,
was governed by a retainer contract dated 9 April 1985. The petitioner's
undertakings thereunder are outlined as follows:
PINEDAPCGRNMAN
I. CORPORAT[ION]:
1. Corporation will provide the following:
b. Furnishings, tables, executive chairs, visitor's chair & steel filing
cabinet
c. Telephone facilities and partial secretarial services.
2. Legal service referrals by the corporation to its clients for additional
income of the lawyer.
3. Minimal allowance of P800 per month plus contingent fees on
contingent fees on collection cases (case to case basis) aside from the
attorney's fees recovered from any lawsuit.
4. That in case of legal problems to be attended to outside Metro Manila
and Suburbs, the corporation shall defray expenses for transportation,
lodging and other legal expenses incidental in the case.[18]
An analysis of the contract clearly shows that it was a general retainer,
since its primary purpose was to secure beforehand the services of the
private respondent for any legal problem which might afterward
arise. [19] The fixed retaining fee was P800.00 a month. A retaining fee is
a preliminary fee paid to ensure and secure a lawyer's future services,
to remunerate him for being deprived, by being retained by one party, of
the opportunity of rendering services to the other party and of receiving
pay from him. In the absence of an agreement to the contrary, the
retaining fee is neither made nor received in consideration of the services
contemplated; it is apart from what the client has agreed to pay for the
services which he has retained him to perform. [20]
In the retainer contract in question, there was no intention to make the
retaining fee as the attorney's fees for the services contemplated. This is
evident from the provision allowing additional attorney's fees
in collection cases consisting of (1) a "contingent fee" and (2) whatever
the petitioner might recover as attorney's fees in each case. The latter
could only refer to the attorney's fees which the court might award to the
petitioner in appropriate cases.
While the contract did not mention non-collection cases, it is,
nevertheless, clear therefrom that such cases were not excluded from
the retainership, as borne out by the provision requiring the private
respondent to "make appearances in Court for cases involving the
corporation or any allied cases pertaining to the latter." As to such cases,
there was no specific stipulation of additional attorney's
fees. Nevertheless, nothing therein shows that the private respondent
agreed to render professional service in such cases gratuitously. The
absence then of the stipulation of additional attorney's fees cannot be
construed as a bar to the collection of additional attorney's fees in non-
collection cases.
Two basic principles come into play. The first is as stated earlier, viz.,
that the retaining fee is neither made nor received in consideration of the
services contemplated unless the contract itself so provides. The second
is that, unless expressly stipulated, rendition of professional services by
a lawyer is for a fee or compensation and is not gratuitous. This is implicit
from the opening clause of Section 24, Rule 138 of the Rules of Court,
which states that "[a]n attorney shall be entitled to have and recover from
his client no more than a reasonable compensation for his services . . .,"
and by virtue of the innominate contract of facio ut des (I do and you
give), as enunciated by this Court in Corpus v. Court of Appeals, [21] thus:
Moreover, the payment of attorney's fees . . . may also be justified by
virtue of the innominate contract of facio ut des (I do and you give) which
is based on the principle that "no one shall unjustly enrich himself at the
expense of another." Innominate contracts have been elevated to a
codal provision in the New Civil Code by providing under Article 1307
that such contracts shall be regulated by the stipulations of the parties,
by the general provisions or principles of obligations and contracts, by
the rules governing the most analogous nominate contracts, and by the
customs of the people. The rationale of this article was stated in the 1903
case of Perez vs. Pomar (2 Phil. 682).
In Perez v. Pomar, [22] this Court stated:
Page 349
[B]ut whether the plaintiff's services were solicited or whether they were
offered to the defendant for his assistance, inasmuch as these services
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
were accepted and made use of by the latter, we must consider that there
was a tacit and mutual consent as to the rendition of the services. This
gives rise to the obligation upon the person benefited by the services to
make compensation therefor, since the bilateral obligation to render
service as interpreter, on the one hand, and on the other to pay for the
services rendered, is thereby incurred. (Arts. 1088, 1089, and 1262 of
the Civil Code).
Accordingly, as to non-collection cases where the petitioner was either a
plaintiff or a defendant, the private respondent could still collect
attorney's fees, apart from his regular retaining fee, on the basis of any-
supplemental agreement or, in its absence, under the principle
of quantum meruit. There was no such supplemental agreement in this
case.
We cannot sustain the private respondent's theory that he could collect
attorney's fees on contingent basis because in the other "non-collection"
cases he handled for the petitioner' he was paid on contingent basis at
the rate of 10% of what was awarded to the petitioner. In the first place,
Civil Case No. 612 is still unresolved, and no judgment has yet been
rendered in favor of the petitioner. The amount in the memorandum of
agreement could not be made the basis of a "contingent fee" in the said
case for at least three reasons. First, in his own Urgent Motion to Direct
Payment of Attorney's Fees and/or Register Attorney's Charging Lien,
the private respondent based the contingent fee not only in Civil Case
No. 612 but in a "multitude of peripheral cases," and the contingent fee
would become due and collectible only if and when the petitioner obtains
a judgment in his favor in Civil Case No. 612. The second paragraph of
page 3 of the said motion reads as follows:
Hence, from May 1985 and continuously thru the years without
interruption and surviving a series of no less than five (5) changes of
Presiding Judges, the undersigned counsel labored tirelessly in handling
the defense of client. In addition to the instant lawsuit, a multitude of
peripheral cases, civil, criminal and administrative, arising from the non-
delivery of titles by client on fully paid lots in the subdivision project were
also filed as a consequence, not only against defendant but also against
its President and Chief Executive Officer (CEO). Needless to state, the
undersigned was designated to handle majority of these cases for both,
where he appeared and conducted trial without any "appearance fees"
for more than eight (8) long years solely relying on the contingent fee in
case of recovery in the instant main case.[23] (underscoring supplied for
emphasis)
Second, the amount of P28 million, which Filstream agreed to pay the
petitioner, was not a judgment or award in favor of the petitioner in Civil
Case No. 612. It was the consideration of the assignment, transfer, and
conveyance to Filstream of all the petitioner's "rights, interest and
participation embodied and specified in the Joint Venture Agreement
(Annex "A") and in all the eight hundred seventy-five (875) parcels of
land comprising the SARANAY HOMES subdivision. . . ." The plaintiffs
in Civil Case No. 612 were not parties to the memorandum of agreement,
and there is no showing that they agreed to the assignment of the
petitioner's rights, interest, and participation in the Joint Venture
Agreement. While paragraph 10 of the memorandum of agreement
provides that the petitioner
shall cause to sign a JOINT MOTION TO DISMISS, together with the
CARREONS regarding Civil Case No. 612 of the Regional Trial Court of
Makati and to further DISMISS, the case filed against PNB docketed as
Civil Case No. 6918 of the Regional Trial Court of Makati . . . [and] shall
obtain the dismissal of all cases filed by lot buyers against it now pending
with the HLURB
the fact remains that no such motion to dismiss has been filed yet in Civil
Case No. 612, and there is no assurance whatsoever that the plaintiffs
therein will sign a joint motion to dismiss. Third, as correctly posited by
the petitioner, the private respondent had no participation in the
negotiations leading to, and in the preparation of, the memorandum of
agreement.
Indisputably then, the private respondent's attorney's fee on "contingent
basis" in Civil Case No. 612 is unwarranted. If at all, he could only be
PINEDAPCGRNMAN
entitled to attorney's fees on quantum meruit basis as of the expiration
of his retainer contract on 31 March 1993.
Quantum meruit simply means "as much as he deserves." [24] In no case,
however, must a lawyer be allowed to recover more than what is
reasonable pursuant to Section 24, Rule 138 of the Rules of Court, which
provides:
SEC. 24. Compensation of attorneys, agreement as to fees. An attorney
shall be entitled to have and recover from his client no more than a
reasonable compensation for his services, with a view to the importance
of the subject-matter of the controversy, the extent of the services
rendered, and the professional standing of the attorney. No court shall
be bound by the opinion of attorneys as expert witnesses as to the proper
compensation, but may disregard such testimony and base its
conclusion on its own professional knowledge. A written contract for
services shall control the amount to be paid therefor unless found by the
court to be unconscionable or unreasonable.
This Court had earlier declared the following as circumstances to be
considered in determining the reasonableness of a claim for attorney's
fees: (1) the amount and character of the service rendered; (2) labor,
time, and trouble involved; (3) the nature and importance of the litigation
or business in which the services were rendered; (4) the responsibility
imposed; (5) the amount of money or the value of the property affected
by the controversy or involved in the employment; (6) the skill and
experience called for in the performance of the services; (7) the
professional character and social standing of the attorney; (8) the results
secured; and (9) whether the fee is absolute or contingent, it being
recognized that an attorney may properly charge a much larger fee when
it is contingent than when it is not. [25]
Rule 20.1, Canon 20 of the Code of Professional Responsibility
enumerates the following factors which should guide a lawyer in
determining his fees:
(a) The time spent and the extent of the services rendered or required;
(b) The novelty and difficulty of the questions involved;
(c) The importance of the subject matter;
(d) The skill demanded;
(e) The probability of losing other employment as a result of acceptance
of the proffered case;
(f) The customary charges for similar services and the schedule of fees
of the IBP Chapter to which he belongs;
(g) The amount involved in the controversy and the benefits resulting to
the client from the service;
(h) The contingency or certainty of compensation;
(i) The character of the employment, whether occasional or established;
and
(j) The professional standing of the lawyer.
It was incumbent upon the private respondent to prove the reasonable
amount of attorney's fees, taking into account the foregoing factors or
circumstances. The records before us and the trial court's 11 October
1993 order do not confirm that the private respondent proved by either
testimonial or documentary evidence that the award of P600,000.00 was
reasonable. The private respondent's testimony thereon was
crucial. Yet, it does not appear from the 11 October 1993 order that he
took the witness stand. From the Minutes of the trial court attached to
theRollo of CA-G.R. CV No. 44839, [26] it appears that only Atty. Atienza
and Mr. Suazo gave oral testimony on the motion.
It necessarily follows then that the 11 October 1993 order has insufficient
factual basis, and the trial court committed grave abuse of discretion in
arbitrarily fixing the private respondent's attorney's fees
at P600,000.00. The affirmance of the said order by the Court of Appeals
premised on the provision in the retainer contract regarding contingent
fee is thus fatally flawed.
The interest for both the petitioner and the private respondent demands
that the trial court should conduct further proceedings in Civil Case No.
612 relative to the private respondent's motion for the payment of
Page 350
attorney's fees and, thereafter, fix it in light of Section 24, Rule 138 of the
Rules of Court; Rule 20.1, Canon 20 of the Code of Professional
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Responsibility; and the jurisprudentially established guiding principles in
determining attorney's fees on quantum meruit basis.
WHEREFORE, the instant petition is GRANTED. The challenged
Decision of 31 March 1995 of the Court of Appeals in CA-G.R. CV No.
44839 and the Order of 11 October 1993 of the Regional Trial Court of
Makati, Branch 64, in Civil Case No. 612 are hereby SET ASIDE. The
trial court is further DIRECTED to set for further hearing the private
respondent's Urgent Motion to Direct Payment of Attorney's Fees and/or
Register Attorney's Charging Lien and thereafter to fix the private
respondent's attorney's fees in Civil Case No. 612 as of 31 March 1993
when his contract with the petitioner was effectively terminated, taking
into account Section 24, Rule 138 of the Rules of Court; Rule 20.1,
Canon 20 of the Code of Professional Responsibility; and the
jurisprudentially established guiding principles in determining attorney's
fees on quantum meruit basis.
No pronouncement as to costs.
SO ORDERED.
Rule 20.01 A lawyer shall be guided by the following factors in
determining his fees:
a. The time spent and the extent of the services rendered or
required.
b. The novelty and difficulty of the questions involved;
c. The importance of the subject matter;
d. The skill demanded;
e. The probability of losing other employment as a result of
acceptance of the proffered case;
f. The customary charges for similar services and the schedule
of fees of the IBP chapter to which he belongs;
g. The amount involved in the controversy and the benefits
resulting to the client from the services;
h. The contingency or certainty of compensation;
i. The character of the employment, whether occasional or
established; and
j. The professional standing of the lawyer.
Kinds of Payment which may be stipulated upon:
1. a fixed or absolute fee which is payable regardless of
the result of the case
2. a contingent fee that is conditioned to the securing of a
favorable judgment and recovery of money or property
and the amount of which may be on a percentage basis
3. a fixed fee payable per appearance
4. a fixed fee computed by the number of hours spent
5. a fixed fee based on a piece of work
Attorneys Fees
1. Ordinary attorneys fee -the reasonable compensation
paid to a lawyer by his client for the legal services he
has rendered to the latter. The basis for this
compensation is the fact of his employment by and his
agreement with the client.
2. Extraordinary attorneys fee an indemnity for
damages ordered by the court to be paid by the losing
party in litigation. The basis for this is any of the cases
provided for by law where such award can be made,
such as those authorized in Article 2208 of the Civil
Code, and is payable NOT to the lawyer but to the client,
unless they have agreed that the award shall pertain to
the lawyer as additional compensation or as part
thereof.
How attorneys fees may be claimed by the lawyer:
1. It may be asserted either in the very action in which the
services of a lawyer had been rendered or in a separate
action.
2. A petition for attorneys fees may be filed before the
judgment in favor of the client is satisfied or the
proceeds thereof delivered to the client.
PINEDAPCGRNMAN
3. The determination as to the propriety of the fees or as
to the amount thereof will have to be held in abeyance
until the main case from which the lawyers claim for
attorneys fees may arise has become final. Otherwise,
the determination of the courts will be premature.
Kinds of Retainer Agreements on Attorneys fees:
1. General Retainer or Retaining Fee it is the fee paid to
a lawyer to secure his future services as general
counsel for any ordinary legal problem that may arise in
the ordinary business of the client and referred to him
for legal action;
2. Special Retainer that is a fee for a specific case or
service rendered by the lawyer for a client
Quantum Meruit it means as much as he
deserves, and is used as the basis for determining the
lawyers professional fees in the absence of a contract,
but recoverable by him from his client.
Quantum Meruit is resorted to where:
1. there is no express contract for payment of attorneys
fees agreed upon between the lawyer and the client;
2. when although there is a formal contract for attorneys
fees, the stipulated fees are found unconscionable or
unreasonable by the court.
3. When the contract for attorneys fees is void due to
purely formal matters or defects of execution
4. When the counsel, for justifiable cause, was not able to
finish the case to its conclusion
5. When lawyer and client disregard the contract for
attorneys fees.
Skill: length of practice is not a safe criterion of
professional ability.
Rule 20.02 A lawyer shall, in cases of referral, with the consent of
the client, be entitled to a division of fees in proportion to the work
performed and responsibility assumed.
[A.C. No. 4863. September 7, 2001]
URBAN BANK, INC., complainant, vs. ATTY. MAGDALENO M.
PEA, respondent.
RESOLUTION
PUNO, J.:
Before us is an administrative case for disbarment filed by complainant
Urban Bank, Inc., a commercial bank, against respondent Atty.
Magdaleno M. Pea. Complainant charges that respondent is guilty of
deceit, malpractice and gross misconduct in violation of Section 27, Rule
138, of the Revised Rules of Court. The allegations of the Complaint in
support of the accusation are as follows:
3. Last 1 December 1994, Complainant bought a parcel of land located
along Roxas Boulevard from the Isabela Sugar Company (ISC for
brevity). One of the conditions of the sale was for ISC to cause the
eviction of all the occupants found in said property. This condition was
incorporated in the Contract to Sell and adopted in the subsequent Deed
of Absolute Sale executed by and between ISC and Complainant dated
15 November 1994 and 29 Novemebr 1994, respectively.
4. To fully implement the abovementioned condition, ISC engaged the
services of herein Respondent Atty. Magdaleno M. Pea. This was
communicated by ISC to Respondent in a Memorandum dated 20
November 1994 and relayed to Complainant in a Letter dated 19
December 1994.
5. Respondent accepted the engagement of his services by ISC and he
proceeded to take the necessary steps to evict the occupants of the
property subject of the sale.
6. During the eviction process, Complainant was informed by ISC and
Page 351
Respondent about the necessity of a letter of authority in favor of the
latter, granting him the authority to represent Complainant in maintaining
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
possession of the aforesaid property and to represent Complainant in
any court action that may be instituted in connection with the exercise of
said duty.
7. Complainant acceded to the request and issued a letter-authority
dated 15 December 1994, but only after making it very clear to the
Respondent that it was ISC which contracted his services and not
Complainant. This clarification was communicated to Respondent by
Atty. Corazon M. Bejasa and Mr. Arturo E. Manuel, Jr., Senior Vice-
President and Vice-President, respectively of Complainant bank in a
letter addressed to respondent dated 15 December 1994. A copy of said
letter is attached hereto and made an integral part of this Complaint
as Annex E.
8. Subsequently however, Respondent requested for a modification of
said letter of authority by furnishing Complainant with a draft containing
the desired wordings (including the date, i.e., 19 December 1994) and
asking Complainant to modify the previous letter by issuing a new one
similarly worded as his draft. A copy of said request is attached hereto
and made an integral part of this Complaint asAnnex F.
9. If only to expedite and facilitate matters, Complainant willingly obliged
and re-issued a new letter of authority to Respondent, this time
incorporating some of Respondents suggestions. Thus it came to pass
that the actual letter of authority was dated 19 December 1994, while
Complainants clarificatory letter was dated 15 December 1994.
10. Eventually, the eviction of the occupants of the property in question
was successfully carried out. After the lapse of more than thirteen (13)
months, Respondent filed a collection suit against herein Complainant
and its senior officers for recovery of agents compensation and
expenses, damages and attorneys fees, on the strength of the letter of
authority issued by Atty. Bejasa and Mr. Manuel, Jr. A copy of the
complaint filed by herein Respondent with the Bago City Regional Trial
Court is attached hereto and made an integral part hereof as Annex G.
11. The act of Respondent in securing the letter of authority from
Complainant, ostensibly for the purpose of convincing the occupants
sought to be evicted that he was duly authorized to take possession of
the property and then using the same letter as basis for claiming agents
compensation, expenses and attorneys fees from Complainant, knowing
fully well the circumstances surrounding the issuance of said letter of
authority, constitutes deceit, malpractice and gross misconduct under
Section 27, Rule 138 of the Revised Rules of Court. Said provision
enumerates the grounds for the suspension and disbarment of lawyers,
namely:
Sec. 27. Attorneys removed or suspended by Supreme Court, on what
grounds, - A member of the bar may be removed or suspended from his
office as attorney by the Supreme Court for any deceit, malpractice or
other gross misconduct in such office, grossly immoral conduct or by
reason of his conviction of a crime involving moral turpitude, or for any
violation of the oath of which he is required to take before
admission to practice, or for willful disobedience of any lawful order of
a superior court or for corruptly or wilfully appearing as an attorney for a
party to a case without any authority to do so.The practice of soliciting
cases at law for the purpose of gain, either personally or through paid
agents or brokers, constitutes malpractice. (Emphasis supplied)[1]
In answer to these allegations, respondent submitted with this Court his
Comment, wherein he refuted all the charges against him. Preliminarily,
he claimed that the present complaint should be dismissed outright since
its filing constitutes forum shopping and it involves a matter which is sub-
judice, in view of the pending civil action involving the same
parties. Respondent then disputed that he was guilty of deceit,
malpractice or gross misconduct. He declared that complainant, through
its duly authorized officers, engaged his services to rid the property of
tenants and intruders in the course of a telephone conversation. He
added that there was no reason for him to deceive complainant into
writing a letter of authority because he knew very well that the verbal
agreement was sufficient to constitute an attorney-client
relationship. The request for a letter of authority, according to him, was
merely to formalize the engagement.[2] Lastly, he argued that the
PINEDAPCGRNMAN
complainant accepted the benefits of his service, just as it never
disclaimed that he was acting in its behalf during the period of
engagement.
We referred the matter to the Integrated Bar of the Philippines (IBP) for
investigation. Both parties presented their respective evidence before
the Commission on Bar Discipline of the IBP. After only one hearing, and
upon agreement of the parties, the case was submitted for resolution on
the basis of their respective pleadings and annexes thereto. The
investigating officer, Commissioner Navarro, required both parties to file
their own memoranda. The commissioner made the following findings:
After going over the evidence submitted by the parties, the Undersigned
noted that the complainant (plaintiff) in RTC Bago City Civil Case is the
respondent in the present case which only showed that to get even with
the respondent, complainant instituted the present case as leverage for
respondents complaint in the civil case. The complainant in the RTC
Bago City Civil case is the respondent in the present case and vice-
versa; therefore there was no institution by the same party for remedies
in different fora which negates forum shopping.
The fact remains however that complainant never contested the
actuations done by the respondent to rid its property from tenants and
intruders; and even executed a letter of authority in favor of respondent
dated December 19, 1994; otherwise complainant should have engaged
the services of other lawyers.
Nevertheless, it is not for this Office to determine who should pay the
respondent for this is a matter not within its jurisdiction but for the proper
court to do so.
The only issue for resolution of this Office is whether or not respondent
committed malpractice, deceit and gross misconduct in the practice of
his profession as member of the bar.
The evidence on record showed that respondent successfully performed
his task of evicting the tenants and intruders in the property in
question. More so, no less than Senior Vice-President Corazon Bejasa
was very thankful for his job well done.
Complainant benefited from respondents task and for a period of fifty
(50) days no behest or complaint was received by the respondent from
the complainant. It was only when payment for his legal services was
demanded that complainant re-acted when it is incumbent upon the
benefactor of services that just compensation should be awarded.
It is but just and proper that if refusal to pay just compensation ensues
in any transaction, the proper remedy is to institute an action before the
proper court and such actuation of the respondent herein did not
constitute deceit, malpractice or gross misconduct.
In view of the foregoing, the Undersigned hereby recommends that the
complaint against Atty. Magdaleno Pea be dismissed for lack of merit.[3]
Thereafter, IBP Board of Governors passed a Resolution DISMISSING
the Complaint based on the Report and Recommendation of
Commissioner Navarro. It appears that on April 26, 2000, the
complainant was closed by the Monetary Board of the Bangko Sentral
Ng Pilipinas and was placed under receivership of the Philippine Deposit
Insurance Corporation (PDIC). On May 8, 2000, it received a notice of
the resolution. With the PDIC now acting as its counsel, it sought
reconsideration of the resolution with the IBP, which was denied there
being no substantive reason to reverse the findings therein and because
the pleading is improper as the remedy of the complainant is to file the
appropriate Motion with the Supreme Court within fifteen days from
receipt of notice of said Decision pursuant to Section 12 of Rule 139-B.[4]
On October 5, 2000, we received a Manifestation from the complainant,
represented this time by Corazon M. Bejasa, praying that the IBP
Commission on Bar Discipline and Board of Governors be ordered to
make a more thorough determination of whether or not respondent
committed the acts of deceit, malpractice and gross misconduct
complained of as grounds for the latters disbarment. We then resolved
to treat this manifestation as an appeal. Disbarment proceedings are
matters of public interest,[5] undertaken for public welfare and for the
Page 352
purpose of preserving courts of justice from the official ministration of the
persons unfit to practice them.[6]
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
The sole issue raised in this appeal is whether or not respondent should
be disbarred on the ground of deceit, malpractice and gross
misconduct. We rule in the negative.
From the record and evidence before us, we agree with the
commissioners conclusion that respondent cannot be found guilty of the
charges against him. Apart from the allegations it made in various
pleadings, complainant has not proferred any proof tending to show that
respondent really induced it, through machination or other deceitful
means, to issue the December 19 letter of authority ostensibly for the
purpose of evicting illegal occupants, then using the very same letter for
demanding agents compensation. During the scheduled hearing, it did
not introduce a single witness to testify apropos the circumstance under
which the letter was dispatched. Those who signed and issued the letter,
Corazon M. Bejasa and Arturo E. Manuel Jr., were never presented
before the investigating commissioner to substantiate its assertion that
the letter it gave to the respondent was only for show, and for a purpose
which is limited in scope. Similarly, not even the sworn statements from
these or other vital witnesses were attached to the memorandum or the
other pleadings it submitted. It is one thing to allege deceit, malpractice
and gross misconduct, and another to demonstrate by evidence the
specific acts constituting the same.
To be sure, no evidence in respect of the supposed deceit, malpractice
or gross misconduct was adduced by the complainant. It is axiomatic that
he who alleges the same has the onus of validating it. In disbarment
proceedings, the burden of proof is upon the complainant and this Court
will exercise its disciplinary power only if the former establishes its case
by clear, convincing, and satisfactory evidence.[7]In this regard, we find
that complainant failed to meet the required standard.
In an effort to lend credence to its claim that there was no contractual
relation between them, complainant attempted to establish that the legal
services of the respondent was engaged, not by it, but by the seller of
the lot, Isabela Sugar Company. This should presumably settle any
doubt that the December 19 letter was only to be used by respondent for
the purpose of supervising the eviction of the occupants of the property
and protecting it from intruders, and nothing more. To support this, it
submitted correspondence coming from people who appear to be
responsible officers of ISC (one from Enrique Montilla III, and another
from Julie Abad and Herman Ponce) informing respondent of the
engagement of his services by the ISC. These letters, though, cannot by
themselves be accorded strong probative weight in the face of
respondents emphatic assertion that he has never seen any of these
documents.[8] Likewise, they do not indicate that copies thereof were
received by him or by any authorized person in his behalf. It bears
stressing that they do not carry his signature, nor the time or date he took
possession of them. It follows that they cannot be used to bind and
prejudice the respondent absent any showing that he had actual and
ample knowledge of their contents.
Lastly, complainant seems to belabor under the mistaken assumption
that the basis of the respondent in instituting the civil case against it was
the December 19 letter of authority. Well to point out, the suit was
grounded on an oral contract of agency purportedly entered into between
him and the complainant, represented by its duly authorized
officers. This is evident from the averments embodied in the Complaint
filed with the Bago City Trial Court, the pertinent portions of which state:
7. The defendant URBAN BANK through its president, defendant
TEODORO BORLONGAN, and the defendants Board of Directors as
well as its Senior Vice President CORAZON BEJASA and Vice
President, ANTONIO MANUEL, JR., entered into an agency
agreement with the plaintiff, whereby the latter in behalf of the defendant
URBAN BANK, shall hold and maintain possession of the aforedescribed
property, prevent entry of intruders, interlopers and squatters therein and
finally turn over peaceful possession thereof to defendant URBAN
BANK; it was further agreed that for the services rendered as its agent,
defendant URBAN BANK shall pay plaintiff a fee in an amount equivalent
to 10 % of the the market value of the property prevailing at the time of
payment;
PINEDAPCGRNMAN
8. The plaintiff accepted the engagement and in a letter dated December
19, 1994, defendant URBAN BANK through its authorized officials,
namely, defendant CORAZON BEJASA and ARTURO E. MANUEL, JR.,
Senior Vice President and Vice President respectively, of defendant
URBAN BANK, officially confirmed the engagement of the services of
the plaintiff as its Agent-representative for the following specific
purposes; x x x to hold and maintain possession of our abovecaptioned
property and to protect the same from tenants, occupants or any other
person who are threatening to return to the said property and/or to
interfere with your possession of the said property for and in our
behalf. You are likewise authorized to represent Urban Bank in any court
action that you may institute to carry out your aforementioned duties, and
to prevent any intruder, squatter or any other person not otherwise
authorized in writing by Urban bank from entering or staying in the
premises.
A photocopy of the letter dated December 19, 1994 is hereto attached
as Annex C and made integral part hereof.[9] (Emphasis supplied.)
It is clear from the above that what respondent was trying to enforce were
the terms and conditions of the contract. The letter, from the his own
admission, just served to officially confirm a done deal. It was, hence,
utilized solely as documentary evidence to buttress respondents
assertion regarding the existence of the agency agreement. In fact, the
amount of compensation (to the tune of 10% of the market value of the
property) he was recovering in the action was never mentioned in the
letter, but apparently settled in the course of an oral
conversation. Indeed, respondent, with or without the letter, could have
instituted a suit against the complainant. There is no gainsaying that a
verbal engagement is sufficient to create an attorney-client
relationship.[10]
In sum, we find that, under the premises, respondent can hardly be
faulted and accused of deceit, malpractice and gross misconduct for
invoking the aid of the court in recovering recompense for legal services
which he claims he undertook for the complainant, and which the latter
does not deny to have benefited from. Indeed, what he did was a lawful
exercise of a right.
IN VIEW WHEREOF, the disbarment complaint against respondent Atty.
Magdaleno M. Pea is hereby DISMISSED for lack of merit.
SO ORDERED.
Rule 20.03 A lawyer shall not, without the full knowledge and
consent of the client, accept any fee, reward, costs, commission,
interest, rebate or forwarding allowance or other compensation
whatsoever related to his professional employment from anyone
other than the client.
ROC RULE 138 Sec 20 (e) To maintain inviolate the confidence, and
at every peril to himself, to preserve the secrets of his client, and to
accept no compensation in connection with his client's business
except from him or with his knowledge and approval;
Rule 20.04 A lawyer shall avoid controversies with clients
concerning his compensation and shall resort to judicial action
only to prevent imposition, injustice or fraud.
Unauthorized counsel: Not entitled to attorneys fees.
Stipulation regarding payments of attorneys fees is not
illegal/immoral and is enforceable as the law between the
parties provided such stipulation does not contravene law,
good morals, etc.
When counsel cannot recover full amount despite written
contract for attorneys fees:
1. When he withdraws before the case is finished
2. justified dismissal of attorney (payment: in quantum
meruit only)
Page 353
The reason for the award of attorneys fees must be stated in
the text of the decision; otherwise, if it is stated only in the
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
dispositive portion of the decision, the same must be
disallowed on appeal.
Even though the interest or property involved is of
considerable value, if the legal services rendered do not call
for much efforts there is no justification for the award of high
fees.
Champertous Contracts (void) Lawyer stipulates with his
client that in the prosecution of the case, he will bear all the
expenses for the recovery of things or property being claimed
by the client and the latter agrees to pay the former a portion
of the thing/property recovered as compensation.
Compensation to an attorney for merely recommending
another lawyer is improper (agents)
Attorneys fees for legal services shared or divided to non-
lawyer is prohibited. Division of fees is only for division of
service or responsibility.
A lawyer should try to settle amicably any differences on the
subject. A lawyer has 2 options. Judicial action to recover
attorneys fees:
1. In same case: Enforce attorneys fees by filing an
appropriate motion or petition as an incident to the main
action where he rendered legal services.
2. In a separate civil action.
ROC RULE 138 Section 24. Compensation of attorneys; agreement
as to fees. An attorney shall be entitled to have and recover from
his client no more than a reasonable compensation for his services,
with a view to the importance of the subject matter of the
controversy, the extent of the services rendered, and the
professional standing of the attorney. No court shall be bound by
the opinion of attorneys as expert witnesses as to the proper
compensation, but may disregard such testimony and base its
conclusion on its own professional knowledge. A written contract
for services shall control the amount to be paid therefor unless
found by the court to be unconscionable or unreasonable.
Section 32. Compensation for attorneys de oficio. Subject to
availability of funds as may be provided by the law the court may,
in its discretion, order an attorney employed as counsel de oficio to
be compensates in such sum as the court may fix in accordance
with section 24 of this rule. Whenever such compensation is
allowed, it shall be not less than thirty pesos (P30) in any case, nor
more than the following amounts: (1) Fifty pesos (P50) in light
felonies; (2) One hundred pesos (P100) in less grave felonies; (3)
Two hundred pesos (P200) in grave felonies other than capital
offenses; (4) Five Hundred pesos (P500) in capital offenses.
[A.C. No. 6210. December 9, 2004]
FEDERICO N. RAMOS, complainant, vs. ATTY. PATRICIO A.
NGASEO, respondent.
DECISION
YNARES-SANTIAGO, J.:
This is a complaint for suspension of respondent Atty. Patricio A. Ngaseo
for violation of the Code of Professional Responsibility and Article 1491
of the Civil Code by demanding from his client, complainant Federico N.
Ramos, the delivery of 1,000 square meters of land, a litigated property,
as payment for his appearance fees.
The facts as narrated by the complainant are as follows:
Sometime in 1998, complainant Federico Ramos went to respondent
Atty. Patricio Ngaseos Makati office to engage his services as counsel in
a case[1] involving a piece of land in San Carlos, Pangasinan.
Respondent agreed to handle the case for an acceptance fee of
P20,000.00, appearance fee of P1,000.00 per hearing and the cost of
meals, transportation and other incidental expenses. Complainant
PINEDAPCGRNMAN
alleges that he did not promise to pay the respondent 1,000 sq. m. of
land as appearance fees.[2]
On September 16, 1999, complainant went to the respondents office to
inquire about the status of the case. Respondent informed him that the
decision was adverse to them because a congressman exerted pressure
upon the trial judge. Respondent however assured him that they could
still appeal the adverse judgment and asked for the additional amount of
P3,850.00 and another P2,000.00 on September 26, 2000 as allowance
for research made.[3]
Although an appeal was filed, complainant however charges the
respondent of purposely failing to submit a copy of the summons and
copy of the assailed decision. Subsequently, complainant learned that
the respondent filed the notice of appeal 3 days after the lapse of the
reglementary period.
On January 29, 2003, complainant received a demand-letter from the
respondent asking for the delivery of the 1,000 sq. m. piece of land which
he allegedly promised as payment for respondents appearance fee. In
the same letter, respondent also threatened to file a case in court if the
complainant would not confer with him and settle the matter within 30
days.
Respondent alleged that sometime in the late 1997, a former client,
Federico Ramos and his brother, Dionisio, went to his Makati office to
engage his professional services in connection with a 2-hectare parcel
of land situated in San Carlos, Pangasinan which the complainants
family lost 7 years earlier through an execution sale in favor of one
Alfredo T. Castro. Complainant, who was deaf and could only speak
conversational Tagalog haltingly, was assisted by his brother Dionisio.
They came all the way from Pangasinan because no lawyer in San
Carlos City was willing to handle the case. Complainant, through
Dionisio, avers that he has consulted 2 local lawyers but did not engage
their services because they were demanding exorbitant fees. One local
lawyer was willing to handle the case for at least one-half of the land
involved as his attorneys fee, plus cash expenses, while the other asked
for of the land in addition to a large sum of money. Respondent agreed
to handle the case for an acceptance fee of P60,000.00 plus an
appearance fee of P3,000.00 per hearing. Complainant told him that he
would consult his siblings on the matter.
Six months later, i.e., in April 1998, complainant, assisted by one Jose
Castillo, went to respondents office to discuss the legal fees.
Complainant, through Castillo, told respondent that he was willing to pay
an acceptance fee of P40,000.00, P20,000.00 of which shall be paid
upon engagement and the remaining P20,000.00 to be paid after their
treasure hunt operations in Nueva Viscaya were terminated. Further,
complainant offered, in lieu of P3,000.00 per appearance, 1,000 sq. m.
of land from the land subject matter of the case, if they win, or from
another piece of property, if they lose. In addition, complainant also
offered to defray the expenses for transportation, meals and other
incidental expenses. Respondent accepted the complainants offer.
Respondent claims that after the trial court dismissed Civil Case No.
SCC 2128, he filed a timely notice of appeal and thereafter moved to be
discharged as counsel because he had colon cancer. Complainant, now
assisted by one Johnny Ramos, implored respondent to continue
handling the case, with an offer to double the 1,000 sq. m. piece of land
earlier promised and the remaining balance of P20,000.00 acceptance
fee. Johnny Ramos made a written commitment and gave respondents
secretary P2,000.00 of the P3,850.00 expenses for the preparation of
the appellants brief.
On July 18, 2001, the Court of Appeals rendered a favorable decision
ordering the return of the disputed 2-hectare land to the complainant and
his siblings. The said decision became final and executory on January
18, 2002. Since then complainant allegedly failed to contact respondent,
which compelled him to send a demand letter on January 29, 2003.
On February 14, 2003, complainant filed a complaint before the IBP
charging his former counsel, respondent Atty. Ngaseo, of violation of the
Page 354
Code of Professional Responsibility for demanding the delivery of 1,000
sq. m. parcel of land which was the subject of litigation.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
In a report dated July 18, 2003, IBP Commissioner Rebecca Villanueva-
Maala found the respondent guilty of grave misconduct and conduct
unbecoming of a lawyer in violation of the Code of Professional
Responsibility and recommended that he be suspended from the
practice of law for 1 year.[4]
On August 30, 2003, the IBP Board of Governors passed Resolution No.
XVI-2003-47 the full text of which reads:[5]
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, the Report and Recommendation of the Investigating
Commissioner of the above-entitled case, herein made part of this
Resolution/Decision as Annex A; and, finding the recommendation fully
supported by the evidence on record and the applicable laws and rules,
with modification, and considering that respondent have violated the
Code of Professional Responsibility for grave misconduct and conduct
unbecoming of a lawyer Atty. Patricio A. Ngaseo is hereby SUSPENDED
from the practice of law for six (6) months.
On December 11, 2003, respondent filed a petition for review assailing
IBP Resolution No. XVI-2003-47 for having been issued without or in
excess of jurisdiction.[6]
Respondent argues that he did not violate Article 1491 of the Civil Code
because when he demanded the delivery of the 1,000 sq. m. of land
which was offered and promised to him in lieu of the appearance fees,
the case has been terminated, when the appellate court ordered the
return of the 2-hectare parcel of land to the family of the complainant.
Respondent further contends that he can collect the unpaid appearance
fee even without a written contract on the basis of the principle
of quantum meruit. He claims that his acceptance and appearance fees
are reasonable because a Makati based legal practitioner, would not
handle a case for an acceptance fee of only P20,000.00 and P1,000.00
per court appearance.
Under Article 1491(5) of the Civil Code, lawyers are prohibited from
acquiring either by purchase or assignment the property or rights
involved which are the object of the litigation in which they intervene by
virtue of their profession.[7] The prohibition on purchase is all embracing
to include not only sales to private individuals but also public or judicial
sales. The rationale advanced for the prohibition is that public policy
disallows the transactions in view of the fiduciary relationship
involved, i.e., the relation of trust and confidence and the peculiar control
exercised by these persons.[8] It is founded on public policy because, by
virtue of his office, an attorney may easily take advantage of the credulity
and ignorance of his client and unduly enrich himself at the expense of
his client.[9] However, the said prohibition applies only if the sale or
assignment of the property takes place during the pendency of the
litigation involving the clients property. Consequently, where the property
is acquired after the termination of the case, no violation of paragraph 5,
Article 1491 of the Civil Code attaches.
Invariably, in all cases where Article 1491 was violated, the illegal
transaction was consummated with the actual transfer of the litigated
property either by purchase or assignment in favor of the prohibited
individual. In Biascan v. Lopez, respondent was found guilty of serious
misconduct and suspended for 6 months from the practice of law when
he registered a deed of assignment in his favor and caused the transfer
of title over the part of the estate despite pendency of Special
Proceedings No. 98037 involving the subject property.[10] In the
consolidated administrative cases of Valencia v. Cabanting,[11] the Court
suspended respondent Atty. Arsenio Fer Cabanting for six (6) months
from the practice of law when he purchased his client's property which
was still the subject of a pending certiorari proceeding.
In the instant case, there was no actual acquisition of the property in
litigation since the respondent only made a written demand for its
delivery which the complainant refused to comply. Mere demand for
delivery of the litigated property does not cause the transfer of
ownership, hence, not a prohibited transaction within the contemplation
of Article 1491. Even assuming arguendo that such demand for delivery
is unethical, respondents act does not fall within the purview of Article
1491. The letter of demand dated January 29, 2003 was made long after
PINEDAPCGRNMAN
the judgment in Civil Case No. SCC-2128 became final and executory
on January 18, 2002.
We note that the report of the IBP Commissioner, as adopted by the IBP
Board of Governors in its Resolution No. XVI-2003-47, does not clearly
specify which acts of the respondent constitute gross misconduct or what
provisions of the Code of Professional Responsibility have been violated.
We find the recommended penalty of suspension for 6 months too harsh
and not proportionate to the offense committed by the respondent. The
power to disbar or suspend must be exercised with great caution. Only
in a clear case of misconduct that seriously affects the standing and
character of the lawyer as an officer of the Court and member of the bar
will disbarment or suspension be imposed as a penalty.[12] All
considered, a reprimand is deemed sufficient and reasonable.
WHEREFORE, in view of the foregoing, respondent Atty. Patricio A.
Ngaseo is found guilty of conduct unbecoming a member of the legal
profession in violation of Rule 20.04 of Canon 20 of the Code of
Professional Responsibility. He is REPRIMANDED with a warning that
repetition of the same act will be dealt with more severely.
SO ORDERED.
CANON 21 A lawyer shall preserve the confidences and secrets
of his client even after the attorney-client relation is terminated.
Confidence refers to information protected by the attorney-
client privilege (RRC)
Secret refers to other information gained in the professional
relationship that the client has regulated to be held inviolate
or the disclosure of which would be embarrassing or would
likely be detrimental to the client.
An attorney cannot, without the consent of his client, be
examined as to any communication made by the client to him,
or his advice given thereon in the course of professional
employment; nor can an attorneys secretary, stenographer,
or clerk be examined, without the consent of the client and his
employees, concerning any fact the knowledge of which has
been acquired in such capacity (Rule 130, Sec. 21 (b), RRC)
The mere establishment of a client-lawyer relationship does
not raise a presumption of confidentiality. There must be an
intent or that the communication relayed by the client to the
lawyer be treated as confidential.
ROC RULE 138 SEC 20 (e) To maintain inviolate the confidence, and
at every peril to himself, to preserve the secrets of his client, and to
accept no compensation in connection with his client's business
except from him or with his knowledge and approval;
ROC RULE 130 Section 21. Disqualification by reason of mental
incapacity or immaturity. The following persons cannot be
witnesses:
(b) Children whose mental maturity is such as to render them
incapable of perceiving the facts respecting which they are
examined and of relating them truthfully.
RPC Art. 208. Prosecution of offenses; negligence and tolerance.
The penalty of prision correccional in its minimum period and
suspension shall be imposed upon any public officer, or officer of
the law, who, in dereliction of the duties of his office, shall
maliciously refrain from instituting prosecution for the punishment
of violators of the law, or shall tolerate the commission of offenses.
G.R. No. L-961 September 21, 1949
BLANDINA GAMBOA HILADO, petitioner,
vs.
JOSE GUTIERREZ DAVID, VICENTE J. FRANCISCO, JACOB ASSAD
Page 355
and SELIM JACOB ASSAD,respondents.
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Delgado, Dizon and Flores for petitioner.
Vicente J. Francisco for respondents.
TUASON, J.:
It appears that on April 23, 1945, Blandina Gamboa Hilado brought an
action against Selim Jacob Assad to annul the sale of several houses
and lot executed during the Japanese occupation by Mrs. Hilado's now
deceased husband.
On May 14, Attorneys Ohnick, Velilla and Balonkita filed an answer on
behalf of the defendant; and on June 15, Attorneys Delgado, Dizon,
Flores and Rodrigo registered their appearance as counsel for the
plaintiff. On October 5, these attorneys filed an amended complaint by
including Jacob Assad as party defendant.
On January 28, 1946, Attorney Francisco entered his appearance as
attorney of record for the defendant in substitution for Attorney Ohnick,
Velilla and Balonkita who had withdrawn from the case.
On May 29, Attorney Dizon, in the name of his firm, wrote Attorney
Francisco urging him to discontinue representing the defendants on the
ground that their client had consulted with him about her case, on which
occasion, it was alleged, "she turned over the papers" to Attorney
Francisco, and the latter sent her a written opinion. Not receiving any
answer to this suggestion, Attorney Delgado, Dizon, Flores and Rodrigo
on June 3, 1946, filed a formal motion with the court, wherein the case
was and is pending, to disqualify Attorney Francisco.
Attorney Francisco's letter to plaintiff, mentioned above and identified as
Exhibit A, is in full as follows:
VICENTE J. FRANCISCO
Attorney-at-Law
1462 Estrada, Manila
July 13, 1945.
Mrs. Blandina Gamboa Hilado
Manila, Philippines
My dear Mrs. Hilado:
From the papers you submitted to me in connection with civil case No.
70075 of the Court of First Instance of Manila, entitled "Blandina Gamboa
Hilado vs. S. J. Assad," I find that the basic facts which brought about
the controversy between you and the defendant therein are as follows:
(a) That you were the equitable owner of the property described in the
complaint, as the same was purchased and/or built with funds
exclusively belonging to you, that is to say, the houses and lot pertained
to your paraphernal estate;
(b) That on May 3, 1943, the legal title to the property was with your
husband, Mr. Serafin P. Hilado; and
(c) That the property was sold by Mr. Hilado without your knowledge on
the aforesaid date of May 3, 1943.
Upon the foregoing facts, I am of the opinion that your action against Mr.
Assad will not ordinarily prosper. Mr. Assad had the right to presume that
your husband had the legal right to dispose of the property as the transfer
certificate of title was in his name. Moreover, the price of P110,000 in
Japanese military notes, as of May 3, 1943, does not quite strike me as
so grossly inadequate as to warrant the annulment of the sale. I believe,
lastly, that the transaction cannot be avoided merely because it was
made during the Japanese occupation, nor on the simple allegation that
the real purchaser was not a citizen of the Philippines. On his last point,
furthermore, I expect that you will have great difficulty in proving that the
real purchaser was other than Mr. Assad, considering that death has
already sealed your husband's lips and he cannot now testify as to the
circumstances of the sale.
For the foregoing reasons, I regret to advise you that I cannot appear in
the proceedings in your behalf. The records of the case you loaned to
me are herewith returned.
Yours very truly,
(Sgd.) VICENTE J. FRANCISCO
VJF/Rag.
PINEDAPCGRNMAN
In his answer to plaintiff's attorneys' complaint, Attorney Francisco
alleged that about May, 1945, a real estate broker came to his office in
connection with the legal separation of a woman who had been deserted
by her husband, and also told him (Francisco) that there was a pending
suit brought by Mrs. Hilado against a certain Syrian to annul the sale of
a real estate which the deceased Serafin Hilado had made to the Syrian
during the Japanese occupation; that this woman asked him if he was
willing to accept the case if the Syrian should give it to him; that he told
the woman that the sales of real property during the Japanese regime
were valid even though it was paid for in Japanese military notes; that
this being his opinion, he told his visitor he would have no objection to
defending the Syrian;
That one month afterwards, Mrs. Hilado came to see him about a suit
she had instituted against a certain Syrian to annul the conveyance of a
real estate which her husband had made; that according to her the case
was in the hands of Attorneys Delgado and Dizon, but she wanted to
take it away from them; that as he had known the plaintiff's deceased
husband he did not hesitate to tell her frankly that hers was a lost case
for the same reason he had told the broker; that Mrs. Hilado retorted that
the basis of her action was not that the money paid her husband was
Japanese military notes, but that the premises were her private and
exclusive property; that she requested him to read the complaint to be
convinced that this was the theory of her suit; that he then asked Mrs.
Hilado if there was a Torrens title to the property and she answered yes,
in the name of her husband; that he told Mrs. Hilado that if the property
was registered in her husband's favor, her case would not prosper either;
That some days afterward, upon arrival at his law office on Estrada
street, he was informed by Attorney Federico Agrava, his assistant, that
Mrs. Hilado had dropped in looking for him and that when he, Agrava,
learned that Mrs. Hilado's visit concerned legal matters he attended to
her and requested her to leave the "expediente" which she was carrying,
and she did; that he told Attorney Agrava that the firm should not handle
Mrs. Hilado's case and he should return the papers, calling Agrava's
attention to what he (Francisco) already had said to Mrs. Hilado;
That several days later, the stenographer in his law office, Teofilo
Ragodon, showed him a letter which had been dictated in English by Mr.
Agrava, returning the "expedients" to Mrs. Hilado; that Ragodon told him
(Attorney Francisco) upon Attorney Agrava's request that Agrava
thought it more proper to explain to Mrs. Hilado the reasons why her case
was rejected; that he forthwith signed the letter without reading it and
without keeping it for a minute in his possession; that he never saw Mrs.
Hilado since their last meeting until she talked to him at the Manila Hotel
about a proposed extrajudicial settlement of the case;
That in January, 1946, Assad was in his office to request him to handle
his case stating that his American lawyer had gone to the States and left
the case in the hands of other attorneys; that he accepted the retainer
and on January 28, 1946, entered his appearance.
Attorney Francisco filed an affidavit of stenographer Ragodon in
corroboration of his answer.
The judge trying the case, Honorable Jose Gutierrez David, later
promoted to the Court of Appeals, dismissed the complaint. His Honor
believed that no information other than that already alleged in plaintiff's
complaint in the main cause was conveyed to Attorney Francisco, and
concluded that the intercourse between the plaintiff and the respondent
did not attain the point of creating the relation of attorney and client.
Stripped of disputed details and collateral matters, this much is
undoubted: That Attorney Francisco's law firm mailed to the plaintiff a
written opinion over his signature on the merits of her case; that this
opinion was reached on the basis of papers she had submitted at his
office; that Mrs. Hilado's purpose in submitting those papers was to
secure Attorney Francisco's professional services. Granting the facts to
be no more than these, we agree with petitioner's counsel that the
relation of attorney and client between Attorney Francisco and Mrs.
Hilado ensued. The following rules accord with the ethics of the legal
Page 356
profession and meet with our approval:
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
In order to constitute the relation (of attorney and client) a professional
one and not merely one of principal and agent, the attorneys must be
employed either to give advice upon a legal point, to prosecute or defend
an action in court of justice, or to prepare and draft, in legal form such
papers as deeds, bills, contracts and the like. (Atkinson vs. Howlett, 11
Ky. Law Rep. (abstract), 364; cited in Vol. 88, A. L. R., p. 6.)
To constitute professional employment it is not essential that the client
should have employed the attorney professionally on any previous
occasion. . . . It is not necessary that any retainer should have been paid,
promised, or charged for; neither is it material that the attorney consulted
did not afterward undertake the case about which the consultation was
had. If a person, in respect to his business affairs or troubles of any kind,
consults with his attorney in his professional capacity with the view to
obtaining professional advice or assistance, and the attorney voluntarily
permits or acquiesces in such consultation, then the professional
employment must be regarded as established. . . . (5 Jones
Commentaries on Evidence, pp. 4118-4119.)
An attorney is employed-that is, he is engaged in his professional
capacity as a lawyer or counselor-when he is listening to his client's
preliminary statement of his case, or when he is giving advice thereon,
just as truly as when he is drawing his client's pleadings, or advocating
his client's cause in open court. (Denver Tramway Co. vs. Owens, 20
Colo., 107; 36 P., 848.)
Formality is not an essential element of the employment of an attorney.
The contract may be express or implied and it is sufficient that the advice
and assistance of the attorney is sought and received, in matters
pertinent to his profession. An acceptance of the relation is implied on
the part of the attorney from his acting in behalf of his client in pursuance
of a request by the latter. (7 C. J. S., 848-849; see Hirach Bros. and Co.
vs. R. E. Kennington Co., 88 A. L. R., 1.)
Section 26 (e), Rule 123 of the Rules of Court provides that "an attorney
cannot, without the consent of his client, be examined as to any
communication made by the client to him, or his advice given thereon in
the course of professional employment;" and section 19 (e) of Rule 127
imposes upon an attorney the duty "to maintain inviolate the confidence,
and at every peril to himself, to preserve the secrets of his client." There
is no law or provision in the Rules of Court prohibiting attorneys in
express terms from acting on behalf of both parties to a controversy
whose interests are opposed to each other, but such prohibition is
necessarily implied in the injunctions above quoted. (In re De la Rosa,
27 Phil., 258.) In fact the prohibition derives validity from sources higher
than written laws and rules. As has been aptly said in In re Merron, 22
N. M., 252, L.R.A., 1917B, 378, "information so received is sacred to the
employment to which it pertains," and "to permit it to be used in the
interest of another, or, worse still, in the interest of the adverse party, is
to strike at the element of confidence which lies at the basis of, and
affords the essential security in, the relation of attorney and client."
That only copies of pleadings already filed in court were furnished to
Attorney Agrava and that, this being so, no secret communication was
transmitted to him by the plaintiff, would not vary the situation even if we
should discard Mrs. Hilado's statement that other papers, personal and
private in character, were turned in by her. Precedents are at hand to
support the doctrine that the mere relation of attorney and client ought to
preclude the attorney from accepting the opposite party's retainer in the
same litigation regardless of what information was received by him from
his first client.
The principle which forbids an attorney who has been engaged to
represent a client from thereafter appearing on behalf of the client's
opponent applies equally even though during the continuance of the
employment nothing of a confidential nature was revealed to the attorney
by the client. (Christian vs. Waialua Agricultural Co., 30 Hawaii, 553,
Footnote 7, C. J. S., 828.)
Where it appeared that an attorney, representing one party in litigation,
had formerly represented the adverse party with respect to the same
matter involved in the litigation, the court need not inquire as to how
much knowledge the attorney acquired from his former during that
PINEDAPCGRNMAN
relationship, before refusing to permit the attorney to represent the
adverse party. (Brown vs. Miller, 52 App. D. C. 330; 286, F. 994.)
In order that a court may prevent an attorney from appearing against a
former client, it is unnecessary that the ascertain in detail the extent to
which the former client's affairs might have a bearing on the matters
involved in the subsequent litigation on the attorney's knowledge thereof.
(Boyd vs. Second Judicial Dist. Court, 274 P., 7; 51 Nev., 264.)
This rule has been so strictly that it has been held an attorney, on
terminating his employment, cannot thereafter act as counsel against his
client in the same general matter, even though, while acting for his former
client, he acquired no knowledge which could operate to his client's
disadvantage in the subsequent adverse employment. (Pierce vs.
Palmer [1910], 31 R. I., 432; 77 Atl., 201, Ann. Cas., 1912S, 181.)
Communications between attorney and client are, in a great number of
litigations, a complicated affair, consisting of entangled relevant and
irrelevant, secret and well known facts. In the complexity of what is said
in the course of the dealings between an attorney and a client, inquiry of
the nature suggested would lead to the revelation, in advance of the trial,
of other matters that might only further prejudice the complainant's
cause. And the theory would be productive of other un salutary results.
To make the passing of confidential communication a condition
precedent; i.e., to make the employment conditioned on the scope and
character of the knowledge acquired by an attorney in determining his
right to change sides, would not enhance the freedom of litigants, which
is to be sedulously fostered, to consult with lawyers upon what they
believe are their rights in litigation. The condition would of necessity call
for an investigation of what information the attorney has received and in
what way it is or it is not in conflict with his new position. Litigants would
in consequence be wary in going to an attorney, lest by an unfortunate
turn of the proceedings, if an investigation be held, the court should
accept the attorney's inaccurate version of the facts that came to him.
"Now the abstinence from seeking legal advice in a good cause is by
hypothesis an evil which is fatal to the administration of justice." (John H.
Wigmore's Evidence, 1923, Section 2285, 2290, 2291.)
Hence the necessity of setting down the existence of the bare
relationship of attorney and client as the yardstick for testing
incompatibility of interests. This stern rule is designed not alone to
prevent the dishonest practitioner from fraudulent conduct, but as well to
protect the honest lawyer from unfounded suspicion of unprofessional
practice. (Strong vs. Int. Bldg., etc.; Ass'n, 183 Ill., 97; 47 L.R.A., 792.) It
is founded on principles of public policy, on good taste. As has been said
in another case, the question is not necessarily one of the rights of the
parties, but as to whether the attorney has adhered to proper
professional standard. With these thoughts in mind, it behooves
attorneys, like Caesar's wife, not only to keep inviolate the client's
confidence, but also to avoid the appearance of treachery and double-
dealing. Only thus can litigants be encouraged to entrust their secrets to
their attorneys which is of paramount importance in the administration of
justice.
So without impugning respondent's good faith, we nevertheless can not
sanction his taking up the cause of the adversary of the party who had
sought and obtained legal advice from his firm; this, not necessarily to
prevent any injustice to the plaintiff but to keep above reproach the honor
and integrity of the courts and of the bar. Without condemning the
respondents conduct as dishonest, corrupt, or fraudulent, we do believe
that upon the admitted facts it is highly in expedient. It had the tendency
to bring the profession, of which he is a distinguished member, "into
public disrepute and suspicion and undermine the integrity of justice."
There is in legal practice what called "retaining fee," the purpose of which
stems from the realization that the attorney is disabled from acting as
counsel for the other side after he has given professional advice to the
opposite party, even if he should decline to perform the contemplated
services on behalf of the latter. It is to prevent undue hardship on the
attorney resulting from the rigid observance of the rule that a separate
Page 357
and independent fee for consultation and advice was conceived and
authorized. "A retaining fee is a preliminary fee given to an attorney or
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
counsel to insure and secure his future services, and induce him to act
for the client. It is intended to remunerate counsel for being deprived, by
being retained by one party, of the opportunity of rendering services to
the other and of receiving pay from him, and the payment of such fee, in
the absence of an express understanding to the contrary, is neither made
nor received in payment of the services contemplated; its payment has
no relation to the obligation of the client to pay his attorney for the
services which he has retained him to perform." (7 C.J.S., 1019.)
The defense that Attorney Agrava wrote the letter Exhibit A and that
Attorney Francisco did not take the trouble of reading it, would not take
the case out of the interdiction. If this letter was written under the
circumstances explained by Attorney Francisco and he was unaware of
its contents, the fact remains that his firm did give Mrs. Hilado a formal
professional advice from which, as heretofore demonstrated, emerged
the relation of attorney and client. This letter binds and estop him in the
same manner and to the same degree as if he personally had written it.
An information obtained from a client by a member or assistant of a law
firm is information imparted to the firm. (6 C. J., 628; 7 C. J. S., 986.)
This is not a mere fiction or an arbitrary rule; for such member or
assistant, as in our case, not only acts in the name and interest of the
firm, but his information, by the nature of his connection with the firm is
available to his associates or employers. The rule is all the more to be
adhered to where, as in the present instance, the opinion was actually
signed by the head of the firm and carries his initials intended to convey
the impression that it was dictated by him personally. No progress could
be hoped for in "the public policy that the client in consulting his legal
adviser ought to be free from apprehension of disclosure of his
confidence," if the prohibition were not extended to the attorney's
partners, employers or assistants.
The fact that petitioner did not object until after four months had passed
from the date Attorney Francisco first appeared for the defendants does
not operate as a waiver of her right to ask for his disqualification. In one
case, objection to the appearance of an attorney was allowed even on
appeal as a ground for reversal of the judgment. In that case, in which
throughout the conduct of the cause in the court below the attorney had
been suffered so to act without objection, the court said: "We are all of
the one mind, that the right of the appellee to make his objection has not
lapsed by reason of failure to make it sooner; that professional
confidence once reposed can never be divested by expiration of
professional employment." (Nickels vs. Griffin, 1 Wash. Terr., 374, 321
A. L. R. 1316.)
The complaint that petitioner's remedy is by appeal and not by certiorari
deserves scant attention. The courts have summary jurisdiction to
protect the rights of the parties and the public from any conduct of
attorneys prejudicial to the administration of the justice. The summary
jurisdiction of the courts over attorneys is not confined to requiring them
to pay over money collected by them but embraces authority to compel
them to do whatever specific acts may be incumbent upon them in their
capacity of attorneys to perform. The courts from the general principles
of equity and policy, will always look into the dealings between attorneys
and clients and guard the latter from any undue consequences resulting
from a situation in which they may stand unequal. The courts acts on the
same principles whether the undertaking is to appear, or, for that matter,
not to appear, to answer declaration, etc. (6 C.J., 718 C.J.S., 1005.) This
summary remedy against attorneys flows from the facts that they are
officers of the court where they practice, forming a part of the machinery
of the law for the administration of justice and as such subject to the
disciplinary authority of the courts and to its orders and directions with
respect to their relations to the court as well as to their clients. (Charest
vs. Bishop, 137 Minn., 102; 162, N.W., 1062, Note 26, 7 C. J. S., 1007.)
Attorney stand on the same footing as sheriffs and other court officers in
respect of matters just mentioned.
We conclude therefore that the motion for disqualification should be
allowed. It is so ordered, without costs.
PINEDAPCGRNMAN
BUN SIONG YAO, A.C. No. 7023
Complainant,
Present:
Panganiban, C.J. (Chairperson),
- versus - Ynares-Santiago,
Austria-Martinez,
Callejo, Sr., and
Chico-Nazario, JJ.
ATTY. LEONARDO A. AURELIO,
Respondent. Promulgated:
March 30, 2006
x ---------------------------------------------------------------------------------------- x
DECISION
YNARES-SANTIAGO, J.:
On November 11, 2004, a complaint-affidavit[1] was filed against Atty.
Leonardo A. Aurelio by Bun Siong Yao before the Integrated Bar of the
Philippines (IBP) seeking for his disbarment for alleged violations of the
Code of Professional Responsibility.
The complainant alleged that since 1987 he retained the services of
respondent as his personal lawyer; that respondent is a stockholder and
the retained counsel of Solar Farms & Livelihood Corporation and Solar
Textile Finishing Corporation of which complainant is a majority
stockholder; that complainant purchased several parcels of land using
his personal funds but were registered in the name of the corporations
upon the advice of respondent; that respondent, who was also the
brother in-law of complainants wife, had in 1999 a disagreement with the
latter and thereafter respondent demanded the return of his investment
in the corporations but when complainant refused to pay, he filed eight
charges for estafa and falsification of commercial documents against the
complainant and his wife and the other officers of the corporation; that
respondent also filed a complaint against complainant for alleged non-
compliance with the reportorial requirements of the Securities and
Exchange Commission (SEC) with the Office of the City Prosecutor of
Mandaluyong City and another complaint with the Office of the City
Prosecutor of Malabon City for alleged violation of Section 75 of the
Corporation Code; that respondent also filed a similar complaint before
the Office of the City Prosecutor of San Jose Del Monte, Bulacan.
Complainant alleged that the series of suits filed against him and his wife
is a form of harassment and constitutes an abuse of the confidential
information which respondent obtained by virtue of his employment as
counsel. Complainant argued that respondent is guilty of representing
conflicting interests when he filed several suits not only against the
complainant and the other officers of the corporation, but also against
the two corporations of which he is both a stockholder and retained
counsel.
Respondent claimed that he handled several labor cases in behalf of
Solar Textile Finishing Corporation; that the funds used to purchase
several parcels of land were not the personal funds of complainant but
pertain to Solar Farms & Livelihood Corporation; that since 1999 he was
no longer the counsel for complainant or Solar Textile Finishing
Corporation; that he never used any confidential information in pursuing
the criminal cases he filed but only used those information which he
obtained by virtue of his being a stockholder.
He further alleged that his requests for copies of the financial statements
Page 358
were ignored by the complainant and his wife hence he was constrained
to file criminal complaints for estafa thru concealment of documents; that
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
when he was furnished copies of the financial statements, he discovered
that several parcels of land were not included in the balance sheet of the
corporations; that the financial statements indicated that the corporations
suffered losses when in fact it paid cash dividends to its stockholders,
hence, he filed additional complaints for falsification of commercial
documents and violation of reportorial requirements of the SEC.
On July 19, 2005, the Investigating Commissioner[2] submitted a Report
and Recommendation[3] finding that from 1987 up to 1999, respondent
had been the personal lawyer of the complainant and incorporator and
counsel of Solar Farms & Livelihood Corporation. However, in 1999
complainant discontinued availing of the services of respondent in view
of the admission of his (complainants) son to the bar; he also
discontinued paying dividends to respondent and even concealed from
him the corporations financial statements which compelled the
respondent to file the multiple criminal and civil cases in the exercise of
his rights as a stockholder.
The investigating commissioner further noted that respondent is guilty of
forum shopping when he filed identical charges against the complainant
before the Office of the City Prosecutor of Malabon City and in the Office
of the City Prosecutor of San Jose del Monte, Bulacan. It was also
observed that respondent was remiss in his duty as counsel and
incorporator of both corporations for failing to advise the officers of the
corporation, which he was incidentally a member of the Board of
Directors, to comply with the reportorial requirements of the SEC and the
Bureau of Internal Revenue. Instead, he filed cases against his clients,
thereby representing conflicting interests.
The investigating commissioner recommended that respondent be
suspended from the practice of law for a period of six months[4] which
was adopted and approved by the IBP Board of Governors.
We agree with the findings and recommendation of the IBP.
We find that the professional relationship between the complainant and
the respondent is more extensive than his protestations that he only
handled isolated labor cases for the complainants corporations. Aside
from being the brother-in-law of complainants wife, it appears that even
before the inception of the companies, respondent was already providing
legal services to the complainant, thus:
COMM. NAVARRO:
Was there a formal designation or you where only called upon to do so?
ATTY. AURELIO:
Well, I understand in order to show to the employees that they have labor
lawyer and at that time I went to the office at least half day every week
but that was cut short. And so when there are cases that crop-up
involving labor then they called me up.
xxxx
ATTY. OLEDAN:
Will counsel deny that he was the personal lawyer of the complainant
long before he joined the company?
ATTY. AURELIO:
Yes, with respect to the boundary dispute between his land and his
neighbor but the subject matter of all the cases I filed they all revolved
around the Financial Statement of the 2 corporations. I never devolves
any information with respect to labor cases and the MERALCO case with
respect to boundary dispute, nothing I used.
ATTY. OLEDAN:
PINEDAPCGRNMAN
Was he not also the lawyer at that time of complainant when he
incorporated the second corporation in 1992?
ATTY. AURELIO:
Well, I was the one submitted the corporate papers and I think after that
I have nothing to do with the SEC requirements regarding this
corporation. Just to submit the incorporation papers to the SEC and
anyway they have already done that before. They have already created
or established the first corporation way back before the second
corporation started and there was no instance where I dealt with the
Financial Statement of the corporation with respect to its filing with the
SEC.
ATTY. OLEDAN:
My only question is whether he incorporated and therefore was aware of
the corporate matters involving Solar Farms?
ATTY. AURELIO:
As a stockholder Im aware.
ATTY. OLEDAN:
As a lawyer?
ATTY. AURELIO:
Well, as a stockholder Im aware.
xxxx
ATTY. OLEDAN:
You are not the one who filed.
ATTY. AURELIO:
I was the one who filed the corporate paper but thats all the participation
I had with respect to the requirement of the SEC with respect to the
corporation.
COMM. NAVARRO:
So, you acted as legal counsel of the corporation even before the initial
stage of the incorporation?
ATTY. AURELIO:
There are two (2) corporations involving in this case, Your Honor, and
the first was I think Solar Textile and this was.
COMM. NAVARRO:
You were already the legal counsel?
ATTY. AURELIO:
No, this was created before I became a stockholder.
COMM. NAVARRO:
Who was then the legal counsel before of Solar?
MR. YAO:
Siya pa rin pero hindi pa siya stockholder.
ATTY. OLEDAN:
Because, Your Honor, he happens to be the brother-in-law of the wife of
the complainant and he is the husband of the wife of her sister so thats
why he was (inaudible) other legal matters even before the corporation
that was formed and he became also a stockholder and in fact he charge
the corporation certain amounts for professional service rendered it is
part of the Resolution of the Office of the City Prosecutor of Malabon as
annex to the complaint so he cannot say that he only presented, that he
Page 359
only filed the papers at SEC and aside from that when the corporation,
the Solar Farms was already formed and the property which he is now
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
questioning was purchased by complainant. He was the one who
negotiated with the buyer, he was always with the complainant and
precisely acted as complainants personal lawyer. The truth of the matter
he is questioning the boundary and in fact complainant had survey
conducted in said parcel of land which he bought with the assistance and
legal advice of respondent and in fact complainant gave him only a copy
of that survey. Him alone. And he used this particular copy to insists that
this property allegedly belong to the corporation when in truth and in fact
he was fully aware that it was the complainants personal funds that were
used to pay for the whole area and this was supported by the
stockholders who admitted that they were aware that the parcel of land
which he claims does not appear in the Financial Statement of the
corporation was purchased by the complainant subject to reimbursement
by the Board and should the corporation finally have sufficient fund to
cover the payment advance by complainant then the property will be
transferred to the corporation. All of these facts he was privy to it, Your
Honor, so he cannot say that and he is also a stockholder but the fact is,
prior to the incorporation and during the negotiation he was the personal
counsel of the complainant.[5]
It appears that the parties relationship was not just professional, but they
are also related by affinity. The disagreement between complainants
wife and the respondent affected their professional
relationship. Complainants refusal to disclose certain financial records
prompted respondent to retaliate by filing several suits.
It is essential to note that the relationship between an attorney and his
client is a fiduciary one.[6] Canon 17 of the Code of Professional
Responsibility provides that a lawyer owes fidelity to the cause of his
client and shall be mindful of the trust and confidence reposed on
him. The long-established rule is that an attorney is not permitted to
disclose communications made to him in his professional character by a
client, unless the latter consents. This obligation to preserve the
confidences and secrets of a client arises at the inception of their
relationship. The protection given to the client is perpetual and does not
cease with the termination of the litigation, nor is it affected by the party's
ceasing to employ the attorney and retaining another, or by any other
change of relation between them. It even survives the death of the
client.[7]
Notwithstanding the veracity of his allegations, respondents act of filing
multiple suits on similar causes of action in different venues constitutes
forum-shopping, as correctly found by the investigating
commissioner. This highlights his motives rather than his cause of
action. Respondent took advantage of his being a lawyer in order to get
back at the complainant. In doing so, he has inevitably utilized
information he has obtained from his dealings with complainant and
complainants companies for his own end.
Lawyers must conduct themselves, especially in their dealings with their
clients and the public at large, with honesty and integrity in a manner
beyond reproach.[8]Lawyers cannot be allowed to exploit their profession
for the purpose of exacting vengeance or as a tool for instigating hostility
against any personmost especially against a client or former client. As
we stated in Marcelo v. Javier, Sr.:[9]
A lawyer shall at all times uphold the integrity and dignity of the legal
profession. The trust and confidence necessarily reposed by clients
require in the attorney a high standard and appreciation of his duty to his
clients, his profession, the courts and the public. The bar should maintain
a high standard of legal proficiency as well as of honesty and fair dealing.
Generally speaking, a lawyer can do honor to the legal profession by
faithfully performing his duties to society, to the bar, to the courts and to
his clients. To this end, nothing should be done by any member of the
legal fraternity which might tend to lessen in any degree the confidence
PINEDAPCGRNMAN
of the public in the fidelity, honesty and integrity of the
profession.[10] (Emphasis supplied)
In sum, we find that respondent's actuations amount to a breach of his
duty to uphold good faith and fairness, sufficient to warrant the imposition
of disciplinary sanction against him.
WHEREFORE, respondent Atty. Leonardo A. Aurelio is
ordered SUSPENDED from the practice of law for a period of SIX (6)
MONTHS effective upon receipt of this Decision. Let a copy of this
Decision be furnished the Office of the Bar Confidant and the Integrated
Bar of the Philippines. The Court Administrator is directed to circulate
this order of suspension to all courts in the country.
SO ORDERED.
[A.C. No. 4078. July 14, 2003]
WILLIAM ONG GENATO, complainant, vs. ATTY. ESSEX L.
SILAPAN, respondent.
DECISION
PUNO, J.:
In this complaint for disbarment filed by William Ong Genato against
respondent Atty. Essex L. Silapan, complainant alleged that in July 1992,
respondent asked if he could rent a small office space in complainants
building in Quezon City for his law practice. Complainant acceded and
introduced respondent to Atty. Benjamin Dacanay, complainants
retained lawyer, who accommodated respondent in the building and
made him handle some of complainants cases. Hence, the start of the
legal relationship between complainant and respondent.
The conflict between the parties started when respondent borrowed two
hundred thousand pesos (P200,000.00) from complainant which he
intended to use as downpayment for the purchase of a new car. In return,
respondent issued to complainant a postdated check in the amount
of P176,528.00 to answer for the six (6) months interest on the loan. He
likewise mortgaged to complainant his house and lot in Quezon City but
did not surrender its title claiming that it was the subject of reconstitution
proceedings before the Quezon City Register of Deeds.
With the money borrowed from complainant, respondent purchased a
new car. However, the document of sale of the car was issued in
complainants name and financed through City Trust Company.
In January 1993, respondent introduced to complainant a certain
Emmanuel Romero. Romero likewise wanted to borrow money from
complainant. Complainant lent Romero the money and, from this
transaction, respondent earned commission in the amount
of P52,289.90. Complainant used the commission to pay respondents
arrears with the car financing firm.
Subsequently, respondent failed to pay the amortization on the car and
the financing firm sent demand letters to complainant. Complainant tried
to encash respondents postdated check with the drawee bank but it was
dishonored as respondents account therein was already closed.
Respondent failed to heed complainants repeated demands for
payment. Complainant then filed a criminal case against respondent
for violation of Batas Pambansa Blg. 22 and a civil case for judicial
foreclosure of real estate mortgage.
In the foreclosure case, respondent made the following allegation in his
Answer:
xxxxxxxxx
4. That complainant is a businessman who is engaged in the real estate
business, trading and buy and sell of deficiency taxed imported cars,
shark loans and other shady deals and has many cases pending in
court;
xxxxxxxxx
Complainant denied respondents charges and claimed that respondents
allegation is libelous and not privilege as it was irrelevant to the
Page 360
foreclosure case. Complainant further pointed to paragraph 12 of
respondents Answer, thus:
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
12. That on January 29, 1993, before paying for the next installment on
his car on January 30, 1993, defendant Essex L. Silapan asked the
complainant to execute a Deed of Sale transferring ownership of the car
to him but the latter said that he will only do so after the termination of
his criminal case at Branch 138 of the Regional Trial Court of Makati,
Metro Manila, x x x where he (complainant) wanted Essex L. Silapan,
his former counsel in that case, to offer bribe money to the
members of the review committee of the Department of Justice
where a petition for review of the resolution of the Investigating
Prosecutor was pending at the time, x x x or, in the event that the
said petition for review is denied, he wanted Essex L. Silapan to
offer bribe money to the prosecutor assigned at the above-
mentioned Court, and even to the presiding Judge, for his eventual
acquittal, which defendant Essex L. Silapan all refused to do not
only because such acts are immoral and illegal, but also because
the complainant confided to him that he was really involved in the
commission of the crime that was charged of in the above-
mentioned case. (emphasis supplied)
Complainant gripes that the foregoing allegations are false, immaterial
to the foreclosure case and maliciously designed to defame him. He
charged that in making such allegations, respondent is guilty of breaking
their confidential lawyer-client relationship and should be held
administratively liable therefor. Consequently, he filed this complaint for
disbarment, praying also that an administrative sanction be meted
against respondent for his issuance of a bouncing check.
When required by the Court to comment, respondent explained[1] that it
was complainant who offered him an office space in his building and
retained him as counsel as the latter was impressed with the way he
handled a B.P. 22 case[2] filed against complainant. Respondent insisted
that there was nothing libelous in his imputations of dishonest business
practices to complainant and his revelation of complainants desire to
bribe government officials in relation to his pending criminal case. He
claimed to have made these statements in the course of judicial
proceedings to defend his case and discredit complainants credibility by
establishing his criminal propensity to commit fraud, tell lies and violate
laws. He argued that he is not guilty of breaking his confidential lawyer-
client relationship with complainant as he made the disclosure in defense
of his honor and reputation.
Secondly, respondent asserted that he executed the real estate
mortgage in favor of complainant without consideration and only as a
formal requirement so he could obtain theP200,000.00 loan and for this
reason, he did not surrender his title over the mortgaged property to
complainant.
Thirdly, respondent claimed that he issued the postdated check, not for
account or for value, but only: (a) to serve as some kind of
acknowledgment that he already received in advance a portion of his
attorneys fees from the complainant for the legal services he rendered,
and (b) as a form of assurance that he will not abandon the cases he
was handling for complainant.
Lastly, respondent denied that he received a P52,289.90 commission
from Romeros loan which he allegedly helped facilitate. He alleged that
the amount was paid to him by Romero as attorneys fees, the latter being
his client. He used this amount to pay his arrears with the car financing
firm. On January 29, 1993, before paying the next amortization on the
car, he asked complainant to execute a deed of sale transferring
ownership of the car to him. Complainant refused and insisted that he
would transfer ownership of the car only after the termination of his
criminal case which respondent was handling as his defense
lawyer. Consequently, respondent stopped paying the amortization on
the car. Respondent also alleged that he filed a perjury case against
complainant who, in turn, filed a complaint for libel against him.
In a Resolution, dated October 27, 1993, the Court referred the
administrative case to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.
On August 3, 2002, the Board of Governors of the IBP approved the
report of the investigating commissioner finding the respondent guilty as
PINEDAPCGRNMAN
charged and recommending his suspension from the practice of law for
one (1) year.
We affirm the findings and recommendation of the IBP.
Prefatorily, we stress that we shall not delve into the merits of the various
criminal and civil cases pending between the parties. It is for the trial
courts handling these cases to ascertain the truth or falsity of the
allegations made therein. For this reason, it is not for us to sanction
respondent for his issuance of a bouncing check. His liability has yet to
be determined by the trial court where his case is pending.
The only issue in this administrative case is whether respondent
committed a breach of trust and confidence by imputing to complainant
illegal practices and disclosing complainants alleged intention to bribe
government officials in connection with a pending case.
Canon 17 of the Code of Professional Responsibility provides that a
lawyer owes fidelity to the cause of his client and shall be mindful of the
trust and confidence reposed on him. The long-established rule is that
an attorney is not permitted to disclose communications made to him in
his professional character by a client, unless the latter consents. This
obligation to preserve the confidences and secrets of a client arises at
the inception of their relationship.[3] The protection given to the client is
perpetual and does not cease with the termination of the litigation, nor is
it affected by the partys ceasing to employ the attorney and retaining
another, or by any other change of relation between them. It even
survives the death of the client.[4]
It must be stressed, however, that the privilege against disclosure of
confidential communications or information is limited only to
communications which are legitimately and properly within the scope of
a lawful employment of a lawyer. It does not extend to those made in
contemplation of a crime or perpetration of a fraud.[5] If the unlawful
purpose is avowed, as in this case, the complainants alleged intention to
bribe government officials in relation to his case, the communication is
not covered by the privilege as the client does not consult the lawyer
professionally. It is not within the profession of a lawyer to advise a client
as to how he may commit a crime as a lawyer is not a gun for hire. Thus,
the attorney-client privilege does not attach, there being no professional
employment in the strict sense.
Be that as it may, respondents explanation that it was necessary for him
to make the disclosures in his pleadings fails to satisfy us. The
disclosures were not indispensable to protect his rights as they were not
pertinent to the foreclosure case. It was improper for the respondent to
use it against the complainant in the foreclosure case as it was not the
subject matter of litigation therein and respondents professional
competence and legal advice were not being attacked in said case. A
lawyer must conduct himself, especially in his dealings with his clients,
with integrity in a manner that is beyond reproach. His relationship with
his clients should be characterized by the highest degree of good faith
and fairness.
Thus, the Court agrees with the evaluation of the IBP and finds that
respondents allegations and disclosures in the foreclosure case amount
to a breach of fidelity sufficient to warrant the imposition of disciplinary
sanction against him. However, the recommended penalty of one (1)
year suspension of respondent from the practice of law seems to be
disproportionate to his breach of duty considering that a review of the
records of this Court reveals that this is the first administrative complaint
against him.
IN VIEW WHEREOF, respondent Atty. Essex L. Silapan is ordered
suspended from the practice of law for a period of six (6) months effective
upon receipt of this Decision. Let a copy of this Decision be furnished the
Office of the Bar Confidant and the Integrated Bar of the Philippines. The
Court Administrator is directed to circulate this order of suspension to all
courts in the country.
SO ORDERED.
Page 361
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LEGAL ETHICS
[A.C. No. 5020. December 18, 2001]
ROSARIO JUNIO, complainant, vs. ATTY. SALVADOR M. GRUPO,
respondent.
DECISION
MENDOZA, J.:
This is a complaint for disbarment filed against Atty. Salvador M. Grupo
for malpractice and gross misconduct.
Complainant Rosario N. Junio alleged that
3. Sometime in 1995, [she] engaged the services of [respondent], then a
private practitioner, for the redemption of a parcel of land covered by
Transfer Certificate of Title No. 20394 registered in the name of her
parents, spouses Rogelio and Rufina Nietes, and located at Concepcion,
Loay, Bohol.
4. On 21 August 1995, [complainant] entrusted to [respondent] the
amount of P25,000.00 in cash to be used in the redemption of the
aforesaid property. Respondent received the said amount as evidenced
by an acknowledgment receipt, a copy of which is being hereto attached
as Annex A.
5. Notwithstanding the foregoing and for no valid reason, respondent did
not redeem the property; as a result of which the right of redemption was
lost and the property was eventually forfeited.
6. Because of respondents failure to redeem the property, complainant
had demanded [the] return of the money which she entrusted to the
former for the above-stated purpose.
7. Despite repeated demands made by the complainant and without
justifiable cause, respondent has continuously refused to refund the
money entrusted to him.[1]
In his Answer, petitioner admitted receiving the amount in question for
the purpose for which it was given. However, he alleged that
6. The subject land for which the money of complainant was initially
intended to be applied could really not be redeemed anymore . . ;
7. Complainant knew the mortgage agreement between her parents and
the mortgage-owner had already expired, and what respondent was
trying to do was a sort of [a] desperate, last-ditch attempt to persuade
the said mortgagee to relent and give back the land to the mortgagors
with the tender of redemption; but at this point, the mortgagee simply
would not budge anymore. For one reason or another, he would no
longer accept the sum offered;
8. By the time that complainant was to return to Manila, it was already a
foregone matter that respondents efforts did not succeed. And so, when
transaction failed, respondent requested the complainant that he be
allowed, in the meantime, to avail of the money because he had an
urgent need for some money himself to help defray his childrens
educational expenses. It was really a personal request, a private matter
between respondent and complainant, thus, respondent executed a
promissory note for the amount, a copy of which is probably still in the
possession of the complainant.
9. . . . [T]he family of the complainant and that of the respondent were
very close and intimate with each other. Complainant, as well as two of
her sisters, had served respondents family as household helpers for
many years when they were still in Manila, and during all those times
they were treated with respect, affection, and equality. They were
considered practically part of respondents own family.
PINEDAPCGRNMAN
That is why, when complainant requested . . . assistance regarding the
problem of the mortgaged property which complainant wanted to
redeem, respondent had no second-thoughts in extending a lending
hand . . . .
Respondent did not ask for any fee. His services were purely gratuitous;
his acts [were] on his own and by his own. It was more than pro bono; it
was not even for charity; it was simply an act of a friend for a friend. It
was just lamentably unfortunate that his efforts failed.
....
Of course, respondent accepts his fault, because, indeed, there were
occasions when complainants sisters came to respondent to ask for the
payment in behalf of complainant, and he could not produce the money
because the circumstances somehow, did not allow it. [I]t does not mean
that respondent will not pay, or that he is that morally depraved as to
wilfully and deliberately re[nege] in his obligation towards the
complainant.[2]
Complainant filed a reply denying that respondent informed her of his
failure to redeem the property and that respondent requested her to
instead lend the money to him.[3]
The case was thereafter referred to the Integrated Bar of the Philippines
(IBP) for investigation, report, and recommendation. However, while two
hearings were set for this purpose, both were postponed at the instance
of respondent. For this reason, on August 28, 2000, complainant asked
the Investigating Commissioner[4] to consider the case submitted for
decision on the basis of the pleadings theretofore filed. Respondent was
required to comment on complainants motion, but he failed to do so.
Consequently, the case was considered submitted for resolution.
In his report, dated January 5, 2001, the Investigating Commissioner
found respondent liable for violation of Rule 16.04 of the Code of
Professional Responsibility which forbids lawyers from borrowing money
from their clients unless the latters interests are protected by the nature
of the case or by independent advice. The Investigating Commissioner
found that respondent failed to pay his clients money. However, in view
of respondents admission of liability and plea for magnanimity, the
Investigating Commissioner recommended that respondent be simply
reprimanded and ordered to pay the amount of P25,000.00 loan plus
interest at the legal rate.
In its Resolution No. XIV-2001-183, dated April 29, 2001, the IBP Board
of Governors adopted and approved the Investigating Commissioners
findings. However, it ordered
[R]espondent . . . suspended indefinitely from the practice of law for the
commission of an act which falls short of the standard of the norm of
conduct required of every attorney and . . . ordered [him] to return to the
complainant the amount of P25,000.00 plus interest at the legal rate from
the time the said amount was misappropriated, until full payment;
provided that the total suspension shall be at least one (1) year from the
date of said full payment.
On July 4, 2001, respondent filed a motion for reconsideration alleging
that
(a) there was no actual hearing of the case wherein respondent could
have fully ventilated and defended his position;
(b) the subject Resolution gravely modified the Report and
Page 362
Recommendation of the Trial Commissioner, Hon. Pedro Magpayo, Jr.,
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
. . . such that the resultant sanctions that are ordered imposed are too
leonine, unjust and cruel;
(c) that the factual circumstances attending the matter which gave rise
to the complaint were not rightly or fairly appreciated.[5]
He argues that the Court should adopt the report and recommendation
of the IBP Investigating Commissioner.
In its resolution of August 15, 2001, the Court resolved to treat
respondents motion for reconsideration as a petition for review of IBP
Resolution No. XIV 2001-183 and required complainant to comment on
the petition.
In her comment, complainant states that her primary interest is to recover
the amount of P25,000.00 with interest and that she is leaving it to the
Court to decide whether respondent deserves the penalty recommended
by the IBP.[6]
The Court resolves to partially grant the petition. In his report and
recommendation, Investigating Commissioner Magpayo, Jr. made the
following findings:
In his Answer, the respondent ADMITS all the allegations in paragraph
4 of the complaint which avers:
4. On 21 August 1995, complainant entrusted to respondent the amount
of P25,000.00 in cash to be used in the redemption of the aforesaid
property (parcel of land covered by TCT No. 20394 registered in the
name of complainants parents located at Concepcion, Loay, Bohol).
Respondent received the said amount as evidenced by an
acknowledgment receipt (Annex A).
By way of confession and avoidance, the respondent, . . . however,
contended that when the mortgagee refused to accept the sum tendered
as the period of redemption had already expired, he requested the
complainant to allow him in the meantime to use the money for his
childrens educational expenses[,] to which request the complainant
allegedly acceded and respondent even executed a promissory note
(please see 4th par. of Annex B of complaint).
Respondent takes further refuge in the intimate and close relationship
existing between himself and the complainants family on the basis of
which his legal services were purely gratuitous or simply an act of a friend
for a friend with no consideration involved. Unfortunately, his efforts to
redeem the foreclosed property, as already stated, did not produce the
desired result because the mortgagee would not budge anymore and
would not accept the sum offered.
Thus, the respondent concluded that there was, strictly speaking, no
attorney-client [relationship] existing between them. Rather, right from
the start[,] everything was sort of personal, he added.
Granting to the respondent the benefit of the doubt, we shall assume that
there was in reality a loan in the amount of P25,000.00. This is likewise
confirmed by the execution of a promissory note on 12 December 1996
by the respondent who undertook to pay Mrs. Junio on or before January
1997 (Annex B of complaint). Moreover, the demand letter of 12 March
1998 (Annex B) mentions of reimbursement of the sum received and
interest of 24% per annum until fully paid giving the impression that the
funds previously intended to be used for the repurchase of a certain
property (Annex A of complaint) was converted into a loan with the
consent of the complainant who gave way to the request of the
respondent to help defray his childrens educational expenses (par. 8 of
Answer).
PINEDAPCGRNMAN
Be that as it may, the duty and obligation to repay the loan remains
unshaken. Having utilized the sum to fulfill his urgent need for some
money, it is but just and proper that he return the amount borrowed
together with interest.
Five (5) years had already passed since respondent retained the cash
for his own personal use. But notwithstanding the same and his firm
promise to pay Mrs. Junio on or before January 1997 he has not
demonstrated any volition to settle his obligation to his creditor[,]
although admittedly there w[ere] occasions when complainants sister
came to respondent to ask for the payment in behalf of complainant,
worse, the passage of time made respondent somehow forgot about the
obligation.
A lawyer shall not borrow money from his client unless the clients
interests are fully protected by the nature of the case or by independent
advice (Rule 16.04, Code of Professional Responsibility). This rule is
intended to prevent the lawyer from taking advantage of his influence
over the client.
This rule is especially significant in the instant case where the
respondent enjoys an immense ascendancy over the complainant who,
as well as two of his sisters, had served respondents family as household
helpers for many years.
Having gained dominance over the complainant by virtue of such long
relation of master and servant, the respondent took advantage of his
influence by not returning the money entrusted to him. Instead, he
imposed his will on the complainant and borrowed her funds without
giving adequate security therefor and mindless of the interest of the
complainant.
In the light of the foregoing, . . . respondent has committed an act which
falls short of the standard of the norm of conduct required of every
attorney. If an ordinary borrower of money is required by the law to repay
the loan failing which he may be subjected to court action, it is more so
in the case of a lawyer whose conduct serves as an example.[7]
It would indeed appear from the records of the case that respondent was
allowed to borrow the money previously entrusted to him by complainant
for the purpose of securing the redemption of the property belonging to
complainants parents. Respondent, however, did not give adequate
security for the loan and subsequently failed to settle his obligation.
Although complainant denied having loaned the money to respondent,
the fact is that complainant accepted the promissory note given her by
respondent on December 12, 1996. In effect, complainant consented to
and ratified respondents use of the money. It is noteworthy that
complainant did not attach this promissory note to her complaint nor
explain the circumstances surrounding its execution. She only
mentioned it in her demand letter of March 12, 1998 (Annex B), in which
she referred to respondents undertaking to pay her the P25,000.00 on
or before January 1997. Under the circumstances and in view of
complainants failure to deny the promissory note, the Court is
constrained to give credence to respondents claims that the money
previously entrusted to him by complainant was later converted into a
loan.
Respondents liability is thus not for misappropriation or embezzlement
but for violation of Rule 16.04 of the Code of Professional Responsibility
which forbids lawyers from borrowing money from their clients unless the
latters interests are protected by the nature of the case or by independent
advice. In this case, respondents liability is compounded by the fact that
not only did he not give any security for the payment of the amount
loaned to him but that he has also refused to pay the said amount. His
Page 363
claim that he could not pay the loan because circumstances . . . did not
allow it and that, because of the passage of time, he somehow forgot
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
about his obligation only underscores his blatant disregard of his
obligation which reflects on his honesty and candor. A lawyer is bound
to observe candor, fairness, and loyalty in all his dealings and
transactions with his client.[8]
Respondent claims that complainant is a close personal friend and that
in helping redeem the property of complainants parents, he did not act
as a lawyer but as a friend, hence there is no client-attorney relationship
between them. This contention has no merit. As explained in Hilado v.
David,[9]
To constitute professional employment it is not essential that the client
should have employed the attorney professionally on any previous
occasion . . . It is not necessary that any retainer should have been paid,
promised, or charged for; neither is it material that the attorney consulted
did not afterward undertake the case about which the consultation was
had. If a person, in respect to his business affairs or troubles of any kind,
consults with his attorney in his professional capacity with the view to
obtaining professional advice or assistance, and the attorney voluntarily
permits or acquiesces in such consultation, then the professional
employment must be regarded as established . . . .
Considering the foregoing, the Investigating Commissioners
recommendation to impose on respondent the penalty of reprimand and
restitution of the amount loaned by him is clearly inadequate. On the
other hand, the penalty of indefinite suspension with restitution imposed
by the IBP Board of Governors is too harsh in view of respondents
apparent lack of intent to defraud complainant and of the fact that this
appears to be his first administrative transgression. It is the penalty
imposed in Igual v. Javier[10] which applies to this case. In that case,
this Court ordered the respondent suspended for one month from the
practice of law and directed him to pay the amount given him by his
clients within 30 days from notice for his failure to return the money in
question notwithstanding his admission that he did not use the money
for the filing of the appellees brief, as agreed by them, because of an
alleged quarrel with his clients.
Anent petitioners allegation regarding the lack of hearing during the IBP
investigation, suffice it to say that he waived such right when he failed to
comment on petitioners motion to submit the case for resolution on the
basis of the pleadings theretofore filed despite due notice to him, not to
mention the fact that it was he who had requested the postponement of
the two hearings scheduled by the Investigating Commissioner.
WHEREFORE, the Court finds petitioner guilty of violation of Rule 16.04
of the Code of Professional Responsibility and orders him suspended
from the practice of law for a period of one (1) month and to pay to
respondent, within 30 days from notice, the amount of P25,000.00 with
interest at the legal rate, computed from December 12, 1996.
SO ORDERED.
Rule 21.01 A lawyer shall not reveal the confidences or secrets of
his client except:
a. When authorized by the client after acquainting him of
the consequences of the disclosure:
b. When required by law;
c. When necessary to collect his fees or to defend himself,
his employees or associates or by judicial action.
When properly authorized after having been fully informed of
the consequences to reveal his confidences/secrets, then
there is a valid waiver.
Art. 209. Betrayal of Trust by an Attorney or Solicitor.
Revelation of secrets. In addition to the proper administrative
action, the penalty of prision correccional in its minimum
period, or a fine ranging from P200 to P1000, or both, shall
PINEDAPCGRNMAN
be imposed upon any attorney at law or solicitor who, by any
malicious break of professional duty as inexcusable
negligence or ignorance, shall prejudice his client, or reveal
any of the secrets of the latter learned by him in his
professional capacity.
The same penalty shall be imposed upon an attorney at law or solicitor
who, having undertaken the defense of a client, or having received
confidential information from said client in a case, shall undertake the
defense of the opposing party in the same case, without the consent of
his first client (Rule 209, RPC)
General Rule: Obligation to keep secrets covers only lawful
purposes
Exceptions:
1. announcements of intention of a client to commit a
crime
2. client jumped bail and lawyer knows his whereabouts;
or client is living somewhere under an assumed name
3. communication involves the commission of future fraud
or crime but crimes/frauds already committed falls
within the privilege.
Rule 21.02 A lawyer shall not, to the disadvantage of his client,
use information acquired in the course of employment, nor shall he
use the same to his own advantage or that of a third person, unless
the client with full knowledge of the circumstances consents
thereto.
A.C. No. 5280 March 30, 2004
WILLIAM S. UY, complainant,
vs.
ATTY. FERMIN L. GONZALES, respondent.
RESOLUTION
AUSTRIA-MARTINEZ, J.:
William S. Uy filed before this Court an administrative case against Atty.
Fermin L. Gonzales for violation of the confidentiality of their lawyer-
client relationship. The complainant alleges:
Sometime in April 1999, he engaged the services of respondent lawyer
to prepare and file a petition for the issuance of a new certificate of title.
After confiding with respondent the circumstances surrounding the lost
title and discussing the fees and costs, respondent prepared, finalized
and submitted to him a petition to be filed before the Regional Trial Court
of Tayug, Pangasinan. When the petition was about to be filed,
respondent went to his (complainants) office at Virra Mall, Greenhills
and demanded a certain amount from him other than what they had
previously agreed upon. Respondent left his office after reasoning with
him. Expecting that said petition would be filed, he was shocked to find
out later that instead of filing the petition for the issuance of a new
certificate of title, respondent filed a letter-complaint dated July 26, 1999
against him with the Office of the Provincial Prosecutor of Tayug,
Pangasinan for "Falsification of Public Documents."1 The letter-
complaint contained facts and circumstances pertaining to the transfer
certificate of title that was the subject matter of the petition which
respondent was supposed to have filed. Portions of said letter-complaint
read:
The undersigned complainant accuses WILLIAM S. UY, of legal age,
Filipino, married and a resident of 132-A Gilmore Street corner 9th
Street, New Manila, Quezon City, Michael Angelo T. UY, CRISTINA
EARL T. UY, minors and residents of the aforesaid address, Luviminda
G. Tomagos, of legal age, married, Filipino and a resident of Carmay
Page 364
East, Rosales, Pangasinan, and F. Madayag, with office address at A12,
2/F Vira Mall Shopping Complex, Greenhills, San Juan, Metro Manila,
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
for ESTAFA THRU FALSIFICATION OF PUBLIC DOCUMENTS,
committed as follows:
That on March 15, 1996, William S. Uy acquired by purchase a parcel of
land consisting of 4.001 ha. for the amount of P100,000.00, Philippine
Currency, situated at Brgy. Gonzales, Umingan, Pangasinan, from
FERMIN C. GONZALES, as evidenced by a Deed of Sale executed by
the latter in favor of the former; that in the said date, William S. Uy
received the Transfer Certificate of Title No. T-33122, covering the said
land;
That instead of registering said Deed of Sale and Transfer Certificate of
Title (TCT) No. T-33122, in the Register of Deeds for the purpose of
transferring the same in his name, William S. Uy executed a Deed of
Voluntary Land Transfer of the aforesaid land in favor of his children,
namely, Michael Angelo T. Uy and Cristina Earl T. Uy, wherein William
S. Uy made it appear that his said children are of legal age, and residents
of Brgy. Gonzales, Umingan, Pangasinan, when in fact and in truth, they
are minors and residents of Metro Manila, to qualify them as
farmers/beneficiaries, thus placing the said property within the coverage
of the Land Reform Program;
That the above-named accused, conspiring together and helping one
another procured the falsified documents which they used as supporting
papers so that they can secure from the Office of the Register of Deeds
of Tayug, Pangasinan, TCT No. T-5165 (Certificate of Land Ownership
Award No. 004 32930) in favor of his above-named children. Some of
these Falsified documents are purported Affidavit of Seller/Transferor
and Affidavit of Non-Tenancy, both dated August 20, 1996, without the
signature of affiant, Fermin C. Gonzales, and that on that said date,
Fermin C. Gonzales was already dead ;
That on December 17, 1998, William S. Uy with deceit and evident intent
to defraud undersigned, still accepted the amount of P340,000.00, from
Atty. Fermin L. Gonzales, P300,000.00, in PNB Check No. 0000606, and
P40,000.00, in cash, as full payment of the redemption of TCT No.
33122knowing fully well that at that time the said TCT cannot be
redeemed anymore because the same was already transferred in the
name of his children;
That William S. Uy has appropriated the amount covered by the
aforesaid check, as evidenced by the said check which was encashed
by him;
That inspite of repeated demands, both oral and in writing, William S. Uy
refused and continue to refuse to deliver to him a TCT in the name of the
undersigned or to return and repay the said P340,000.00, to the damage
and prejudice of the undersigned.2
With the execution of the letter-complaint, respondent violated his oath
as a lawyer and grossly disregarded his duty to preserve the secrets of
his client. Respondent unceremoniously turned against him just because
he refused to grant respondents request for additional compensation.
Respondents act tarnished his reputation and social standing.3
In compliance with this Courts Resolution dated July 31,
2000,4 respondent filed his Comment narrating his version, as follows:
On December 17, 1998, he offered to redeem from complainant a 4.9
hectare-property situated in Brgy. Gonzales, Umingan, Pangasinan
covered by TCT No. T-33122 which the latter acquired by purchase from
his (respondents) son, the late Fermin C. Gonzales, Jr.. On the same
date, he paid complainant P340,000.00 and demanded the delivery of
TCT No. T-33122 as well as the execution of the Deed of Redemption.
Upon request, he gave complainant additional time to locate said title or
until after Christmas to deliver the same and execute the Deed of
Redemption. After the said period, he went to complainants office and
demanded the delivery of the title and the execution of the Deed of
Redemption. Instead, complainant gave him photocopies of TCT No. T-
33122 and TCT No. T-5165. Complainant explained that he had already
transferred the title of the property, covered by TCT No.T-5165 to his
children Michael and Cristina Uy and that TCT No. T-5165 was
misplaced and cannot be located despite efforts to locate it. Wanting to
protect his interest over the property coupled with his desire to get hold
of TCT No. T-5165 the earliest possible time, he offered his assistance
PINEDAPCGRNMAN
pro bono to prepare a petition for lost title provided that all necessary
expenses incident thereto including expenses for transportation and
others, estimated at P20,000.00, will be shouldered by complainant. To
these, complainant agreed.
On April 9, 1999, he submitted to complainant a draft of the petition for
the lost title ready for signing and notarization. On April 14, 1999, he went
to complainants office informing him that the petition is ready for filing
and needs funds for expenses. Complainant who was with a client asked
him to wait at the anteroom where he waited for almost two hours until
he found out that complainant had already left without leaving any
instructions nor funds for the filing of the petition. Complainants conduct
infuriated him which prompted him to give a handwritten letter telling
complainant that he is withdrawing the petition he prepared and that
complainant should get another lawyer to file the petition.
Respondent maintains that the lawyer-client relationship between him
and complainant was terminated when he gave the handwritten letter to
complainant; that there was no longer any professional relationship
between the two of them when he filed the letter-complaint for
falsification of public document; that the facts and allegations contained
in the letter-complaint for falsification were culled from public documents
procured from the Office of the Register of Deeds in Tayug, Pangasinan.5
In a Resolution dated October 18, 2000, the Court referred the case to
the Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.6
Commissioner Rebecca Villanueva-Maala ordered both parties to
appear on April 2, 2003 before the IBP.7 On said date, complainant did
not appear despite due notice. There was no showing that respondent
received the notice for that days hearing and so the hearing was reset
to May 28, 2003.8
On April 29, 2003, Commissioner Villanueva-Maala received a letter
from one Atty. Augusto M. Macam dated April 24, 2003, stating that his
client, William S. Uy, had lost interest in pursuing the complaint he filed
against Atty. Gonzales and requesting that the case against Atty.
Gonzales be dismissed.9
On June 2, 2003, Commissioner Villanueva-Maala submitted her report
and recommendation, portions of which read as follows:
The facts and evidence presented show that when respondent agreed to
handle the filing of the Verified Petition for the loss of TCT No. T-5165,
complainant had confided to respondent the fact of the loss and the
circumstances attendant thereto. When respondent filed the Letter-
Complaint to the Office of the Special Prosecutor in Tayug, Pangasinan,
he violated Canon 21 of the Code of Professional Responsibility which
expressly provides that "A lawyer shall preserve the confidences and
secrets of his client even after the attorney-client relation is terminated."
Respondent cannot argue that there was no lawyer-client relationship
between them when he filed the Letter-Complaint on 26 July 1999
considering that as early as 14 April 1999, or three (3) months after,
respondent had already terminated complainants perceived lawyer-
client relationship between them. The duty to maintain inviolate the
clients confidences and secrets is not temporary but permanent. It is in
effect perpetual for "it outlasts the lawyers employment" (Canon 37,
Code of Professional Responsibility) which means even after the
relationship has been terminated, the duty to preserve the clients
confidences and secrets remains effective. Likewise Rule 21.02, Canon
21 of the Rules of Professional Responsibility provides that "A lawyer
shall not, to the disadvantage of his client, use information acquired in
the course of employment, nor shall he use the same to his own
advantage or that of a third person, unless the client with the full
knowledge of the circumstances consents thereto."
On 29 April 2003, the Commission received a letter dated 24 April 2003
from Atty. Augusto M. Macam, who claims to represent complainant,
William S. Uy, alleging that complainant is no longer interested in
pursuing this case and requested that the same be dismissed. The
aforesaid letter hardly deserves consideration as proceedings of this
Page 365
nature cannot be "interrupted by reason of desistance, settlement,
compromise, restitution, withdrawal of the charges, or failure of the
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
complainant to prosecute the same. (Section 5, Rule 139-B, Rules of
Court). Moreover, in Boliver vs. Simbol, 16 SCRA 623, the Court ruled
that "any person may bring to this Courts attention the misconduct of
any lawyer, and action will usually be taken regardless of the interest or
lack of interest of the complainant, if the facts proven so warrant."
IN VIEW OF THE FOREGOING, we find respondent Atty. Fermin L.
Gonzales to have violated the Code of Professional Responsibility and it
is hereby recommended that he be SUSPENDED for a period of SIX (6)
MONTHS from receipt hereof, from the practice of his profession as a
lawyer and member of the Bar.10
On June 21, 2003, the Board of Governors of the Integrated Bar of the
Philippines issued Resolution No. XV-2003-365, thus:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, the Report and Recommendation of the Investigating
Commissioner of the above-entitled case, herein made part of this
Resolution/Decision as Annex "A"; and finding the recommendation fully
supported by the evidence on record and applicable laws and rules, and
considering that respondent violated Rule 21.02, Canon 21 of the
Canons of Professional Responsibility, Atty. Fermin L. Gonzales is
hereby SUSPENDED from the practice of law for six (6) months.11
Preliminarily, we agree with Commissioner Villanueva-Maala that the
manifestation of complainant Uy expressing his desire to dismiss the
administrative complaint he filed against respondent, has no persuasive
bearing in the present case.
Sec. 5, Rule 139-B of the Rules of Court states that:
. SECRETS OF HIS CLIENT EVEN AFTER THE ATTORNEY-CLIENT
No investigation shall be interrupted or terminated by reason of the
desistance, settlement, compromise, restitution, withdrawal of the
charges, or failure of the complainant to prosecute the same.
This is because:
A proceeding for suspension or disbarment is not in any sense a civil
action where the complainant is a plaintiff and the respondent lawyer is
a defendant. Disciplinary proceedings involve no private interest and
afford no redress for private grievance. They are undertaken and
prosecuted solely for the public welfare. They are undertaken for the
purpose of preserving courts of justice from the official ministration of
persons unfit to practice in them. The attorney is called to answer to the
court for his conduct as an officer of the court. The complainant or the
person who called the attention of the court to the attorney's alleged
misconduct is in no sense a party, and has generally no interest in the
outcome except as all good citizens may have in the proper
administration of justice. Hence, if the evidence on record warrants, the
respondent may be suspended or disbarred despite the desistance of
complainant or his withdrawal of the charges.12
Now to the merits of the complaint against the respondent.
Practice of law embraces any activity, in or out of court, which requires
the application of law, as well as legal principles, practice or procedure
and calls for legal knowledge, training and experience.13 While it is true
that a lawyer may be disbarred or suspended for any misconduct,
whether in his professional or private capacity, which shows him to be
wanting in moral character, in honesty, probity and good demeanor or
unworthy to continue as an officer of the court,14 complainant failed to
prove any of the circumstances enumerated above that would warrant
the disbarment or suspension of herein respondent.
Notwithstanding respondents own perception on the matter, a scrutiny
of the records reveals that the relationship between complainant and
respondent stemmed from a personal transaction or dealings between
them rather than the practice of law by respondent. Respondent dealt
with complainant only because he redeemed a property which
complainant had earlier purchased from his (complainants) son. It is not
refuted that respondent paid complainant P340,000.00 and gave him
ample time to produce its title and execute the Deed of Redemption.
However, despite the period given to him, complainant failed to fulfill his
end of the bargain because of the alleged loss of the title which he had
admitted to respondent as having prematurely transferred to his children,
thus prompting respondent to offer his assistance so as to secure the
PINEDAPCGRNMAN
issuance of a new title to the property, in lieu of the lost one, with
complainant assuming the expenses therefor.
As a rule, an attorney-client relationship is said to exist when a lawyer
voluntarily permits or acquiesces with the consultation of a person, who
in respect to a business or trouble of any kind, consults a lawyer with a
view of obtaining professional advice or assistance. It is not essential
that the client should have employed the attorney on any previous
occasion or that any retainer should have been paid, promised or
charged for, neither is it material that the attorney consulted did not
afterward undertake the case about which the consultation was had, for
as long as the advice and assistance of the attorney is sought and
received, in matters pertinent to his profession.15
Considering the attendant peculiar circumstances, said rule cannot apply
to the present case. Evidently, the facts alleged in the complaint for
"Estafa Through Falsification of Public Documents" filed by respondent
against complainant were obtained by respondent due to his personal
dealings with complainant. Respondent volunteered his service to
hasten the issuance of the certificate of title of the land he has redeemed
from complainant. Respondents immediate objective was to secure the
title of the property that complainant had earlier bought from his son.
Clearly, there was no attorney-client relationship between respondent
and complainant. The preparation and the proposed filing of the petition
was only incidental to their personal transaction.
Canon 21 of the Code of Professional Responsibility reads:
Canon 21 A LAWYER SHALL PRESERVE THE CONFIDENCE AND
RELATION IS TERMINATED.
Rule 21.01 A lawyer shall not reveal the confidences or secrets of his
client except:
a) When authorized by the client after acquainting him of the
consequences of the disclosure;
b) When required by law;
c) When necessary to collect his fees or to defend himself, his employees
or associates or by judicial action.
The alleged "secrets" of complainant were not specified by him in his
affidavit-complaint. Whatever facts alleged by respondent against
complainant were not obtained by respondent in his professional
capacity but as a redemptioner of a property originally owned by his
deceased son and therefore, when respondent filed the complaint for
estafa against herein complainant, which necessarily involved alleging
facts that would constitute estafa, respondent was not, in any way,
violating Canon 21. There is no way we can equate the filing of the
affidavit-complaint against herein complainant to a misconduct that is
wanting in moral character, in honesty, probity and good demeanor or
that renders him unworthy to continue as an officer of the court. To hold
otherwise would be precluding any lawyer from instituting a case against
anyone to protect his personal or proprietary interests.
WHEREFORE, Resolution No. XV-2003-365 dated June 21, 2003 of the
Integrated Bar of the Philippines is REVERSED and SET ASIDE and the
administrative case filed against Atty. Fermin L. Gonzales, docketed as
A.C. No. 5280, is DISMISSED for lack of merit.
SO ORDERED.
Rule 21.03 A lawyer shall not, without the written consent of his
client, give information from his files to an outside agency seeking
such information for auditing, statistical, bookkeeping, accounting,
data processing, or any other similar purposes.
Rule 21.04 A lawyer may disclose the affairs of a client of the firm
to partners or associates thereof unless prohibited by the client.
Rule 21.05 A lawyer shall adopt such measures as may be
required to prevent those whose services are utilized by him, from
disclosing or using confidences or secrets of the client.
Page 366
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Rule 21.06 A lawyer shall avoid indiscreet conversation about a
clients affairs even with members of his family.
Rule 21.07 A lawyer shall not reveal that he has been consulted
about a particular case except to avoid possible conflict of interest.
Avoid committing calculated indiscretion accidental
revelation of secrets obtained in his professional
employment.
Prohibition applies, even if the prospective client did not
thereafter actually engage the lawyer.
Cf: Rule 15.01 A lawyer in conferring with a prospective client,
shall ascertain as soon as practicable whether the matter would
involve a conflict with another client or his own interest, and if so,
shall forthwith inform the prospective client.
Rule 14.03 A lawyer may refuse to accept representation of a
client if:
a. He is not in position to carry out the work effectively and
competently.
b. He labors under conflict of interest between him and the
prospective client or between a present client and the
prospective client.
CANON 22 A LAWYER SHALL WITHDRAW HIS SERVICES ONLY
FOR GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE
CIRCUMSTANCES.
Rule 22.01 A lawyer may withdraw his services in any of the
following cases:
a. When the client pursues an illegal or immoral course of
conduct in connection with the matter he is handling;
b. When the client insists that the lawyer pursue conduct
violative of these canons and rules;
c. When his inability to work with co-counsel will not promote the
best interest of the client;
d. When the mental or physical condition of the lawyer renders it
difficult for him to carry out the employment effectively;
e. When the client deliberately fails to pay the fees for the
services or fails to comply with the retainer agreement;
f. When the lawyer is elected or appointed to a public office,
and
g. Other similar cases
[A.C. No. 4215. May 21, 2001]
FELICISIMO M. MONTANO, complainant, vs. INTEGRATED BAR of
the PHILIPPINES AND Atty. JUAN S. DEALCA, respondents.
RESOLUTION
KAPUNAN, J.:
In a verified complaint filed before this Court on March 9, 1994,
complainant Felicisimo M. Montano charged Atty. Juan Dealca with
misconduct and prays that he be sternly dealt wit administratively. The
complaint[1] is summarized as follows:
1. On November 14, 1992, the complainant hired the services of Atty.
Juan S. Dealca as his counsel in collaboration with Atty. Ronando L.
Gerona in a case pending before the Court of Appeals docketed as CA-
G.R. CV No. 37467 wherein the complainant was the plaintiff-appellant.
2. The parties agreed upon attorneys fees in the amount of P15,000.00,
fifty percent (50%) of which was payable upon acceptance of the case
and the remaining balance upon the termination of the case.Accordingly,
complainant paid respondent the amount of P7,500.00 representing 50%
of the attorneys fee.
3. Thereafter, even before the respondent counsel had prepared the
appellants brief and contrary to their agreement that the remaining
PINEDAPCGRNMAN
balance be payable after the termination of the case, Atty. Dealca
demanded an additional payment from complainant. Complainant
obliged by paying the amount of P4,000.00.
4. Prior to the filing of the appellants brief, respondent counsel again
demand payment of the remaining balance of 3,500.00. When
complainant was unable to do so, respondent lawyer withdrew his
appearance as complainants counsel without his prior knowledge and/or
conformity. Returning the case folder to the complainant, respondent
counsel attached a Note dated February 28, 1993,[2] stating:
28 February 1994
Pepe and Del Montano,
For breaking your promise, since you do not want to fulfill your end of the
bargain, heres your reward:
Henceforth, you lawyer for yourselves. Here are your papers.
Johnny
Complainant claimed that such conduct by respondent counsel
exceeded the ethical standards of the law profession and prays that the
latter be sternly dealt with administratively. Complainant later on filed
motions praying for the imposition of the maximum penalty of
disbarment.
After respondent counsel filed his comment on the complaint, the Court
in the Resolution of August 1, 1994, referred the case to the Integrated
Bar of the Philippines (IBP) for investigation, report and
recommendation.
The Investigating Commissioner found respondent counsel guilty of
unprofessional conduct and recommended that he be severely
reprimanded. However, in a Resolution[3] by the IBP Board of Governors
on July 26, 1997, it was resolved that the penalty recommended by the
Investigating Commissioner meted to respondent by amended to three
(3) months suspension from the practice of law for having been found
guilty of misconduct, which eroded the public confidence regarding his
duty as a lawyer.
Respondent counsel sought reconsideration of the aforementioned
resolution of the IBP, alleging that the latter misapprehended the facts
and that, in any case, he did not deserve the penalty imposed. The true
facts, according to him, are the following:
1. Complainant is being represented by Atty. Ronando L. Gerona in his
case on appeal;
2. Due to the ailment of Atty. Geronas daughter, he could not prepare
and submit complainants appellants brief on time;
3. Complainant went to the respondent to do just that, i.e., prepare and
submit his appellants brief on time at the agreed fee of P15,000.00, 50%
down and 50% upon its completion;
4. Working overtime, respondent was able to finish the appellants brief
ahead of its deadline, so he advised the complainant about its completion
with the request that the remaining balance of P7,500.00 be
paid.Complainant paid P4,000.00 only, promising to pay the P3,500.00
tomorrow or on later particular date. Please take note that, at this
juncture, there was already a breach of the agreement on complainants
part.
5. When that tomorrow or on a later particular date came, respondent,
thru a messenger, requested the complainant to pay the P3,500.00 as
promised but word was sent that he will again pay tomorrow or on later
date. This promise-non-payment cycle went on repeatedly until the last
day of the filing of the brief. Please take note again that it was not the
respondent but the complainant who sets the date when he will pay, yet
fails to pay as promised;
6. Even without being paid completely, respondent, of his own free will
and accord, filed complainants brief on time;
7. After the brief was filed, respondent tried to collect from the
complainant the remaining balance of P3,500.00, but the latter made
himself scarce. As the records would show, such P3,500.00 remains
unpaid until now;
8. Sensing that something was amiss, respondent sent the February 28,
Page 367
1993 note and case folder to the complainant, hoping that the latter
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
would see personally the former about it to settle the matter between
them;
9. However, instead of seeing the respondent, complainant filed this
case;
10. Respondent was constrained to file his withdrawal with the Court of
Appeals because of this case to avoid further misunderstanding since he
was the one who signed the appellants brief although Atty. Gerona was
his counsel of record. Such withdrawal was accordingly granted by the
appellate court;
xxx xxx xxx.[4]
Respondent counsel further averred that complainants refusal to pay the
agreed lawyers fees, measly as it was, was deliberate and in bad faith;
hence, his withdrawal as counsel was just, ethical and proper.
Respondent counsel concluded that not only was the penalty of
suspension harsh for his act of merely trying to collect payment for his
services rendered, but it indirectly would punish his family since he was
the sole breadwinner with children in school and his wife terminally ill
with cancer.
In its Resolution No. XIII-97-129 dated October 25, 1997, the IBP denied
Atty. Dealcas motion for reconsideration, to wit:
xxx
RESOLVED TO DENY Atty. Dealcas Motion For Reconsideration of the
Boards Decision in the above-entitled case there being no substantive
reason to reverse the finding therein. Moreover, the motion is improperly
laid the remedy of the respondent is to file the appropriate pleading with
the Supreme Court within fifteen (15) days from receipt of notice of said
Decision pursuant to Sec. 12 [c] of Rule 139-B.[5]
On December 10, 1997, this Court noted the following pleadings filed in
the present complaint,
(a) notice and a copy of Resolution No. XII-97-154 dated July 26, 1997
of the Integrated Bar of the Philippines amending the recommendation
of the Investigating Commissioner of reprimand to three (3) months
suspension of respondent from the practice of law for having been found
guilty of misconduct which eroded the public confidence regarding his
duty as a lawyer;
(b) complainants motion for praying for the imposition of the maximum
penalty of disbarment;
(c) motion dated September 15, 1997 of respondent for reconsideration
of the aforesaid resolution of July 26, 1997;
(d) comment/opposition of respondent praying that the motion for the
imposition of the maximum penalty be denied;
(e) comment of complainant praying that the penalty of three (3) months
suspension for the practice of law as recommended by the Integrated
Bar of the Philippines pursuant to Resolution No. XII-97-154 be raised to
a heavier penalty;
(f) comment/manifestation/opposition of complainant praying that the
respondent be disbarred; and
(g) rejoinder of respondent praying that this case be dismissed for being
baseless.[6]
and referred the same to the IBP for evaluation and report.
In compliance therewith, on March 28, 1998, the IBP issued Resolution
No. XIII-98-42 referring the above-entitled case to Commissioner Vibar
for evaluation, report and recommendation in view of the Motion for
Reconsideration granted by the Supreme Court.
The Investigating Commissioner, after referring the case, recommended
that his original recommendation of the imposition of the penalty of
reprimand be maintained, noting that respondent counsel had served the
IBP well as President of the Sorsogon Chapter.[7] Accordingly, on
February 23, 1999, the IBP Board of Governors, issued the following
resolution:
RESOLUTION NO. XIII-99-48
xxx
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, the Report and Recommendation of the Investigating
Commissioner in the above-entitled case, herein made part of this
Resolution/Decision as Annex A; and, finding the recommendation fully
PINEDAPCGRNMAN
supported by the evidence on record and the applicable laws and rules,
the Motion for Reconsideration be granted and that the penalty
of REPRIMAND earlier recommended by the Investigating
Commissioner be imposed on Atty. Juan S. Dealca.[8]
Complainant asked the IBP to reconsider the foregoing resolution but the
motion was denied.[9]
On April 10, 2000, complainant filed with this Court a petition for review
on certiorari in connection with Administrative Case No. 4215 against the
IBP and respondent counsel averring that the IBP Board of Governors
committed grave abuse of discretion when it overturned its earlier
resolution and granted respondent counsels motion for reconsideration
on February 23, 1999. He claimed that the earlier resolution denying the
motion for reconsideration issued on October 25, 1997 had already
become final and executory; hence, any further action or motion
subsequent to such final and executory judgment shall be null and void.
When the Court issued the resolution of December 10, 1997 treating the
several pleadings filed in the present complaint, it should be noted that
the IBP resolution denying respondents motion for reconsideration
(Resolution No. XIII-97-129) dated October 25, 1997, for some reason,
had not yet reached this Court. As of that date, the only IBP resolution
attached to the records of the case was Resolution No. XII-97-54
amending the administrative sanction from reprimand to three months
suspension. Hence, at the time the pleadings were referred back to the
IBP in the same resolution, the Court was not aware that the IBP had
already disposed of the motion for reconsideration filed by respondent
counsel.
Thus, when the IBP was informed of the said Court resolution, it
construed the same as granting Atty. Dealcas motion for reconsideration
and as an order for IBP to conduct a re-evaluation of the case.The IBP
assumed that its resolution of October 25, 1997 was already considered
by this Court when it referred the case back to the IBP. It failed to notice
that its resolution denying the motion for reconsideration was not among
those pleadings and resolution referred back to it.
Hence, on the strength of this Courts resolution which it had inadvertently
misconstrued, the IBP conducted a re-evaluation of the case and came
up with the assailed resolution now sought to be reversed.The Court
holds that the error is not attributable to the IBP. It is regrettable that the
procedural infirmity alleged by complainant actually arose from a mere
oversight which was attributable to neither party.
Going into the merits, we affirm the findings made by the IBP that
complainant engaged the services of respondent lawyer only for the
preparation and submission of the appellants brief and the attorneys fees
was payable upon the completion and submission of the appellants brief
and not upon the termination of the case.
There is sufficient evidence which indicates complainants willingness to
pay the attorneys fees. As agreed upon, complainant paid half of the fees
in the amount of P7,500.00 upon acceptance of the case.And while the
remaining balance was not yet due as it was agreed to be paid only upon
the completion and submission of the brief, complainant nonetheless
delivered to respondent lawyer P4,000.00 as the latter demanded. This,
notwithstanding, Atty. Dealca withdrew his appearance simply because
of complainants failure to pay the remaining balance of P3,500.00, which
does not appear to be deliberate. The situation was aggravated by
respondent counsels note to complainant withdrawing as counsel which
was couched in impolite and insulting language.[10]
Given the above circumstances, was Atty. Dealcas conduct just and
proper?
We find Atty. Dealcas conduct unbecoming of a member of the legal
profession. Under Canon 22 of the Code of Professional Responsibility,
lawyer shall withdraw his services only for good cause and upon notice
appropriate in the circumstances. Although he may withdraw his services
when the client deliberately fails to pay the fees for the services,[11] under
the circumstances of the present case, Atty. Dealcas withdrawal was
unjustified as complainant did not deliberately fail to pay him the
Page 368
attorneys fees. In fact, complainant exerted honest efforts to fulfill his
obligation. Respondents contemptuous conduct does not speak well of
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
a member of the bar considering that the amount owing to him was only
P3,500.00. Rule 20.4 of Canon 20, mandates that a lawyer shall avoid
controversies with clients concerning his compensation and shall resort
to judicial action only to prevent imposition, injustice or fraud. Sadly, for
not so large a sum owed to him by complainant, respondent lawyer failed
to act in accordance with the demands of the Code.
The Court, however, does not agree with complainants contention that
the maximum penalty of disbarment should be imposed on respondent
lawyer. The power to disbar must be exercised with great caution. Only
in a clear case of misconduct that seriously affects the standing and
character of the lawyer as an officer of the Court and member of the bar
will disbarment be imposed as a penalty. It should never be decreed
where a lesser penalty, such as temporary suspension, would
accomplish the end desired.[12] In the present case, reprimand is deemed
sufficient.
WHEREFORE, in view of the foregoing, respondent Atty. Juan S. Dealca
is REPRIMANDED with a warning that repetition of the same act will be
dealt with more severely.
SO ORDERED.
ELISA V. VENTEREZ, A. C. No. 7421
GENARO DE VERA, Present:
INOCENCIA V. RAMIREZ,
PACITA V. MILLS, YNARES-SANTIAGO, J.,
ANTONINA V. PALMA and Chairperson,
RAMON DE VERA, AUSTRIA-MARTINEZ,
Complainants, CHICO-NAZARIO,
NACHURA, and
REYES, JJ.
- versus -
Promulgated:
ATTY. RODRIGO R.
COSME, October 10, 2007
Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
RESOLUTION
CHICO-NAZARIO, J.:
Before Us is a Complaint filed by complainants Eliza V.
Venterez, Genaro de Vera, Inocencia V. Ramirez, Pacita V. Mills,
Antonina V. Palma and Ramon de Vera against respondent Atty.
Rodrigo R. Cosme, charging the latter with Abandonment, Gross
Negligence and Dereliction of Duty.
Complainants contracted the legal services of respondent in Civil Case
No. 981 entitled, Sps. Daniel and Lolita Oviedo, et al. v. Eliza de Vera,
et al., for Declaration of Ownership with Damages filed before the
Municipal Trial Court (MTC) of Calasiao, Pangasinan. Respondent
represented the complainants, who were defendants in said case, until
a Decision thereon was rendered by the MTC on 25 February 2004. The
MTC ruled against the complainants. Respondent received a copy of the
said Decision on 3 March 2004.
Complainants alleged that they directed the respondent to either file a
Motion for Reconsideration or a Notice of Appeal, but respondent failed
or refused to do so. The 15-day period within which to file an appeal or
a motion for reconsideration of the MTC Decision expired on 18 March
2004. Complainant Elisa V. Venterez was constrained to contract
another lawyer to prepare the Motion for Reconsideration which was filed
PINEDAPCGRNMAN
on 19 March 2004. It must be stressed that the said motion was signed
by complainant Elisa V. Venterez herself as the said lawyer did not enter
his appearance.
On 23 March 2004, the said Motion for Reconsideration was denied[1] by
the MTC. Respondent was not furnished a copy of the denial of the
motion per a Certification[2] issued by Clerk of Court II Zenaida C. de
Vera. On 31 March 2004, a Motion for Issuance of Writ of
Execution[3] was filed by the plaintiffs in Civil Case No. 981 but
respondent never bothered to file an opposition to or any comment on
the said motion despite receipt thereof. The motion was eventually
granted[4] by the MTC on 23 April 2004. On 28 April 2004, a Writ of
Execution[5] was issued and on 26 April 2004, an Entry of
Judgment[6] was made in the said case.
Two months after respondent received a copy of the Decision, the
respondent filed his Notice of Retirement of Counsel with the MTC on 3
May 2004.
Feeling aggrieved by respondents actuations, complainants filed the
instant administrative complaint against him.[7]
In his Answer,[8] respondent denied the claim of complainants that soon
after the Decision was rendered by the MTC, they (complainants)
directed him to file an appeal or a motion for reconsideration thereof. For
his defense, respondent averred that Salvador Ramirez (the son of one
of the complainants, Inocencia V. Ramirez), informed him that he [was]
withdrawing the case from the respondent because he already engaged
another lawyer to take over the case, so respondent gave the records of
the case to him. Respondent explained that after Salvador Ramirez
withdrew the case from the respondent, and engaged another lawyer,
the respondent turned over the records of the case to him and the
respondent ceased as the counsel of the complainants. Respondent
further alleged that the said Motion for Reconsideration was already
prepared by another lawyer. He denied being furnished a copy of the
Motion for Reconsideration allegedly prepared and filed by another
lawyer engaged by complainant Elisa V. Venterez and that he was
served with a copy of the denial of the said Motion by the
MTC. Respondent also clarified that the last day of the 15-day period for
the perfection of the appeal is 19 March 2004 since a copy of the
decision was served on the respondent on 4 March 2004. Finally,
respondent argued that when the respondent was served a copy of the
Motion for Writ of Execution, he immediately notified Salvador Ramirez
about said Motion but Salvador Ramirez came to see the respondent
only on 3 May 2005, when the respondent asked him to sign a Notice of
Retirement of Counsel signed by Salvador Ramirez which respondent
immediately filed in court.
Pursuant to the complaint, a hearing was conducted by the Commission
on Bar Discipline of the Integrated Bar of the Philippines (IBP) at
the IBP Building, OrtigasCenter, Pasig City, on 15 February 2006.
On 11 April 2006, Investigating Commissioner Dennis A. B. Funa
submitted his Report and Recommendation,[9] finding respondent liable
for gross negligence and recommending the imposition upon him of the
penalty of three months suspension, to wit:
PREMISES CONSIDERED, it is submitted that Respondent is GUILTY
of Gross Negligence and should be given the penalty of THREE (3)
MONTHS SUSPENSION.
Thereafter, the IBP Board of Governors passed Resolution[10] No. XVII-
2006-457 dated 8 September 2006, approving and adopting the
recommendation of the Investigating Commissioner, thus:
Page 369
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, the Report and Recommendation of the Investigating
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
Commissioner of the above-entitled case, herein made part of this
Resolution as Annex A; and, finding the recommendation fully supported
by the evidence on record and the applicable laws and rules, and
considering that Respondent is guilty of gross negligence, Atty. Rodrigo
Cosme is hereby SUSPENDED from the practice of law for three (3)
months.[11]
We sustain the findings and recommendation of the IBP Board of
Governors.
The core issue is whether the respondent committed culpable
negligence in handling complainants case, as would warrant disciplinary
action.
No lawyer is obliged to advocate for every person who may wish to
become his client, but once he agrees to take up the cause of a client,
the lawyer owes fidelity to such cause and must be mindful of the trust
and confidence reposed in him.[12] Among the fundamental rules of
ethics is the principle that an attorney who undertakes an action impliedly
stipulates to carry it to its termination, that is, until the case becomes final
and executory. A lawyer is not at liberty to abandon his client and
withdraw his services without reasonable cause and only upon notice
appropriate in the circumstances.[13] Any dereliction of duty by a counsel
affects the client.[14] This means that his client is entitled to the benefit of
any and every remedy and defense that is authorized by the law and
he may expect his lawyer to assert every such remedy or defense.[15]
The Decision in Civil Case No. 981 was rendered by the MTC of
Calasaio, Pangasinan, on 25 February 2004. Respondent
admitted[16] that he was served a copy of the said Decision on 4 March
2004. After having received a copy of the MTC Decision, respondent did
not bother to file a Motion for Reconsideration or a notice of appeal with
the proper courts. Thus, complainants were compelled to engage the
services of a new counsel to file a Motion for Reconsideration with the
MTC who did not, however, enter his appearance as new counsel. It
bears stressing that during this time, respondent had not yet filed any
notice of withdrawal as counsel for the complainants in Civil Case No.
981.Respondent only formally withdrew as counsel for complainant in
Civil Case No. 981 when he filed with the MTC his Notice[17] of
Retirement as Counsel on 5 May 2004, on the ground that "he was also
retired as Counsel for the [complainants] two days after he received copy
of the decision rendered in this case when SALVADOR RAMIREZ, a
representative of the [complainants], withdrew all the records of the case
from [respondent] to be given to his new counsel.
We cannot accept respondents defense that he had already withdrawn
from the case two days after his receipt of the MTC Decision and that he
had allegedly communicated this withdrawal to Salvador Ramirez, son
of one of the herein complainants, Inocencia Ramirez. It is an apparent
attempt on the part of respondent to wash his hands of any liability for
failing to pursue any of the available remedies to complainants from the
adverse MTC Decision.
The rule in this jurisdiction is that a client has the absolute right to
terminate the attorney-client relation at any time with or without
cause.[18] The right of an attorney towithdraw or terminate the relation
other than for sufficient cause is, however, considerably
restricted.[19] Among the fundamental rules of ethics is the principle that
an attorney who undertakes to conduct an action impliedly stipulates to
carry it to its conclusion.[20] He is not at liberty to abandon it without
reasonable cause.[21] A lawyer's right towithdraw from a case before its
final adjudication arises only from the client's written consent or from a
good cause.[22]
Section 26, Rule 138 of the Revised Rules of Court provides:
PINEDAPCGRNMAN
Sec. 26. Change of attorneys -- An attorney may retire at any time from
any action or special proceeding, by the written consent of his client filed
in court. He may also retire at any time from an action or special
proceeding, without the consent of his client, should the court, on notice
to the client and attorney, and on hearing, determine that he ought to be
allowed to retire. In case of substitution, the name of the attorney newly
employed shall be entered on the docket of the court in place of the
former one, and written notice of the change shall be given to the adverse
party.
A lawyer may retire at any time from any action or special proceeding
with the written consent of his client filed in court and with a copy thereof
served upon the adverse party. Should the client refuse to give his
consent, the lawyer must file an application with the court. The court, on
notice to the client and adverse party, shall determine whether the lawyer
ought to be allowed to retire. The application for withdrawal must be
based on a good cause.[23]
What constitute good cause for the withdrawal of services by the counsel
are identified under Rule 22.01, Canon 22 of the Code of Professional
Responsibility, which provides:
CANON 22 -- A LAWYER SHALL WITHDRAW HIS SERVICES ONLY
FOR GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE
CIRCUMSTANCES.
Rule 22.01-- A lawyer may WITHDRAW his services in any of the
following cases:
a) When the client pursues an illegal or immoral course of conduct in
connection with the matter he is handling;
b) When the client insists that the lawyer pursue conduct violative of
these canons and rules;
c) When his inability to work with co-counsel will not promote the best
interest of the client;
d) When the mental or physical condition of the lawyer renders it difficult
for him to carry out the employment effectively;
e) When the client deliberately fails to pay the fees for the services or
fails to comply with the retainer agreement;
f) When the lawyer is elected or appointed to public office; and
g) Other similar cases.
The instant case does not fall under any of the grounds
aforementioned. Neither can the circumstances of this case be
considered analogous to the grounds thus explicitly
enumerated. Contrary to respondents contention, his professional
relations as a lawyer with his clients are not terminated by the simple
turnover of the records of the case to his clients. Respondents defense
completely crumbles in face of the fact that Salvador Ramirez is not even
a party in Civil Case No. 981 and, hence, had no authority to withdraw
the records of the said case from respondent or to terminate the latters
services.
Assuming, nevertheless, that respondent was justified in withdrawing his
services, he, however, cannot just do so and leave complainants in the
Page 370
cold, unprotected. The lawyer has no right to presume that his petition
for withdrawal will be granted by the court.[24] Until his withdrawal shall
Intelligentia et Scientia Semper Mea
LEGAL ETHICS
have been approved, the lawyer remains counsel of record who is
expected by his clients, as well as by the court, to do what the interests
of his clients require.[25] He must still appear before the court to protect
the interest of his clients by availing himself of the proper remedy, for the
attorney-client relations are not terminated formally until there is a
withdrawal of record.
Without a proper revocation of his authority and withdrawal as counsel,
respondent remains counsel of record for the complainants in Civil Case
No. 981; and whether he has a valid cause to withdraw from the case,
he cannot immediately do so and leave his clients without
representation. An attorney may only retire from the case either by a
written consent of his client or by permission of the court after due notice
and hearing, in which event, the attorney should see to it that the name
of the new attorney is recorded in the case.[26] Respondent did not
comply with these obligations. Therefore, he remains the counsel of
record for the complainants in Civil Case No. 981 with the duty to protect
complainants interest. Had he made the necessary inquiries as to the
status of the case, he would have known that he was still the counsel of
record as no entry of appearance was ever made by another counsel. It
would have been easily discernible on his part that there was no change
in his status as complainants lawyer. As of that time, their client-lawyer
relationship was still subsisting. Therefore, he would have known that the
Motion for Reconsideration was denied; and a writ of execution had been
issued under the circumstances.
All told, we rule and so hold that on account of respondents failure to
protect the interest of complainants, respondent indeed violated Rule
18.03, Canon 18 of the Code of Professional Responsibility, which states
that a lawyer shall not neglect a legal matter entrusted to him, and his
negligence in connection therewith shall render him liable.Respondent is
reminded that the practice of law is a special privilege bestowed only
upon those who are competent intellectually, academically and
morally. This Court has been exacting in its expectations for the
members of the Bar to always uphold the integrity and dignity of the legal
profession and refrain from any act or omission which might lessen the
trust and confidence of the public.
The determination of the appropriate penalty to be imposed on an errant
lawyer involves the exercise of sound judicial discretion based on the
facts of the case.[27] In cases of similar nature, the penalty imposed by
the Court consisted of reprimand,[28] fine of five hundred pesos with
warning,[29] suspension of three months,[30] six months[31] and even
disbarment[32] in an aggravated case.
The facts of the case show that respondent failed to live up to his duties
as a lawyer pursuant to the Code of Professional Responsibility. We
conclude that a 3-month suspension from the practice of law is a just
penalty under the circumstances.
WHEREFORE, the resolution of the IBP Board of Governors approving
and adopting the report and recommendation of the Investigating
Commissioner is herebyAFFIRMED. Accordingly, ATTY. RODRIGO R.
COSME is hereby SUSPENDED from the practice of law for a period
of THREE (3) MONTHS, with a stern warning that a repetition of the
same or similar wrongdoing will be dealt with more severely.
Let a copy of this decision be attached to respondents personal record
with the Office of the Bar Confidant and copies be furnished to all
chapters of the Integrated Bar of the Philippines and to all courts of the
land.
SO ORDERED.
[A.C. No. 5486. August 15, 2001]
In Re: Atty. David Briones
PINEDAPCGRNMAN
DECISION
PUNO, J.:
This matter arose from the continued failure of Atty. David P. Briones,
counsel for accused-appellant in G.R. No. 130965 (People of the
Philippines vs. Restituto Cabacan) pending before the Second Division
of this Court, to file the required appellant's brief.
The notice to file appellant's brief was mailed to Atty. Briones on July 30,
1998. The registry return card shows that it was received by the
addressee on August 6, 1998. Counsel was given thirty (30) days from
receipt of the notice within which to file the brief. Atty. Briones failed to
file the required brief within the period which expired on September 5,
1998.
On April 28, 1999, the Court ordered Atty. Briones to show cause why
he should not be disciplinarily dealt with or held in contempt for such
failure and to submit the required brief within ten (10) days from
notice. Atty. Briones failed to comply with the Court's directive within the
specified period. Copy of said resolution was returned to the Court
unserved without specific reason.
On August 9, 1999, the Court issued a resolution stating among others
that the resolution of April 28, 1999 is considered served on Atty. Briones
by substituted service pursuant to Section 8, Rule 13 of the 1997 Rules
of Civil Procedure. The Court also referred the matter of the repeated
failure of Atty. Briones to file appellant's brief to the Integrated Bar of the
Philippines (IBP) for evaluation, report and recommendation. The
administrative case was docketed as CBD Case No. 00-690.
In a letter dated September 27, 1999, IBP Commissioner Victoria
Gonzales-De Los Reyes informed Atty. Briones of the Court's referral of
the matter to the IBP and required him to file his Comment within five (5)
days from receipt of the letter. The registry return card shows that the
letter was received by the agent of Atty. Briones on October 7,
1999. Atty. Briones, however, did not file any Comment.
Commissioner De Los Reyes submitted her Report dated January 25,
2000 with the following observation and recommendation:
Unfortunately, despite the lapse of the required period of time within
which to submit his Comment, respondent failed to do so despite due
notice as evidenced by the registry return card.
As can be gleaned from the files, G.R. No. 130965 has remained pending
in view of the negligence of Atty. Briones to file the required appellant's
brief. It is therefore evident that respondent violated Rule 18.03 of Canon
18 of the Code of Professional Responsibility to wit:
A lawyer shall not neglect a legal matter entrusted to him, and his
negligence in connection therewith shall render him liable.
Likewise, respondent's repeated failure to file the appellant's brief and
his Comment to the Commission in connection with the Supreme Court
Resolution dated August 9, 1999 are apparently tantamount to wilfull
disobedience to the lawful orders of the Honorable Supreme Court which
could not be tolerated, and respondent should not be allowed to go scot-
free.
IN VIEW OF THE FOREGOING, the undersigned Commissioner finds
that Atty. David P. Briones had the propensity of defying lawful orders,
and recommends that for his violation of Rule 18.03 of the Canon 18 of
the Code of Professional Responsibility, he be SUSPENDED from the
practice of law profession for a period of six (6) months.
On March 18, 2000, the Board of Governors of the IBP passed
Resolution No. XIV-2000-56 stating:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, the Report and Recommendation of the Investigating
Commissioner of the above-entitled case, herein made part of this
Resolution/Decision as annex "A"; and, finding the recommendation fully
supported by the evidence on record and the applicable laws and rules,
Respondent is SUSPENDED/or BARRED from the practice of law for six
(6) months for violation of Rule 18.03 of the Canon 18 of the Code of
Professional Responsibility.
On May 26, 2000, Atty. Briones filed with the IBP a Motion for
Page 371
Reconsideration/Reinvestigation. The motion was grounded on the
alleged denial of due process in the course of the investigation. Atty.
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LEGAL ETHICS PINEDAPCGRNMAN
Briones claimed that he filed a Comment on the administrative case but of Professional Responsibility dictates that a lawyer shall serve his client
the same was not considered by the investigating commissioner. Neither with competence and diligence and he should never neglect a legal
did the IBP conduct a formal investigation. matter entrusted to him.[3]
On July 29, 2000, the Board of Governors of the IBP issued Resolution IN VIEW WHEREOF, Atty. David P. Briones is SUSPENDED from the
No. XIV-2000-439 denying the motion for reconsideration, thus: practice of law for six (6) months effective immediately. Let a copy of this
RESOLVED to DENY Respondents Motion for Reconsideration of the Decision be furnished to the Office of the Bar Confidant, the Integrated
Boards Decision in the above-entitled case there being no substantive Bar of the Philippines, and to all the courts.
reason to reverse the finding therein, moreover, the pleading is improper SO ORDERED.
as the remedy of the respondent is to file the appropriate Motion with the
Supreme Court within fifteen (15) days from receipt of notice of said LIM JR VS ATTY VILLAROSA (SUPRA)
Decision pursuant to Section 12 (c) of Rule 139-B.
On October 5, 2000, Atty. Briones filed with the Court a Manifestation Rule 22.02 A lawyer who withdraws or is discharged shall subject
praying that his Comment submitted to the IBP on October 13, 2000 be to a retaining lien, immediately turn over all papers and property to
considered by the Court. He attached a copy of the Comment to the which the client is entitled, and shall cooperate with his successor
Manifestation. in the orderly transfer of the matter, including all information
Atty. Briones explained both in his Manifestation and his Comment that necessary for the proper handling of the matter.
he failed to file an appellants brief in G.R. No. 130965 because he never
received a copy of the resolution requiring him to file said brief. If ever a Retaining Lien Charging Lien
copy was received by his secretary, the latter was not able to give it to 1. Nature Passive Lien: It Active Lien: It can
him because he had already ceased practicing law. He further explained cannot be actively be enforced by
that the case was assigned to him as member of the IBP Tarlac Legal enforced. It is a execution. It is a
Aid Office. After filing the Notice of Appeal, he resigned from the Legal general lien special lien.
Aid Office because of his failing health. Hence, he presumed that the 2. Basis Lawful possession Securing of a
relatives of the accused would engage the services of a new counsel, or of papers, favorable money
would go directly to the IBP Legal Aid Office. He admitted that he forgot documents, judgment for the
to notify the Legal Aid Office about the case. property belonging client.
We adopt the recommendation of the IBP. to client.
The failure of the counsel to submit the required brief within the 3. Coverage Covers only papers, Covers all
reglementary period is an offense that entails disciplinary action.[1] The documents and judgments for the
pernicious effect of Atty. Briones omission cannot be gainsaid.His failure property in the payment of money
to file an appellants brief in G.R. No. 130965 has caused the appeal to lawful possession and executions
remain inactive for more than a year, to the prejudice of his client, the of the attorney by issued in
accused himself, who continues to languish in jail pending the resolution reason of his pursuance of such
of his case. The accused in a criminal case has the right to a swift and professional judgments.
just disposition of his case. Lawyers are obliged to protect, not defeat, employment
such right. 4. When Lien As soon as the As soon as the
We have considered the explanation of Atty. Briones for his failure to takes effect attorney gets
claim for attorneys
comply with the Courts directive and we find the same possession of the fees had been
unsatisfactory. Such omission can be attributed to pure negligence on papers documents entered into the
the part of Atty. Briones which we deem inexcusable. He cannot deny or property records of the case
that his office received a copy of the Courts resolution ordering him to 5. Notice Client need not be Client and adverse
submit an appellants brief. The registry return card shows that the notice notified to make itparty must be
to file appellants brief was received by the addressee on August 6, effective notified to make it
1998. To exonerate himself from liability, Atty. Briones claims that his effective
secretary did not forward to him the mail matters received in his 6. Applicability May be exercised Generally, it is
office. He, however, cannot pass the blame to his secretary as he is before judgment or exercisable only
personally responsible for his own communications. As a member of the execution or when the attorney
Bar, he is expected to exercise due diligence in the practice of his
regardless thereof. had already
profession. He should not have passively waited for his secretary to
secured a
inform him about the letters and communications received in his law
favorable
office, especially those coming from the courts. He should have taken
judgment for his
the initiative to check with her if there are important matters requiring his
client
action or attention. Neither is the cessation of his law practice an excuse
for his failure to file the required brief. Even if it were true that Atty. In withdrawal as counsel for a client, an attorney may
Briones has stopped practicing law, he still could not ignore the directives only retire from a case either by written consent of his
coming from the Court. It does not appear from the records of G.R. No. client or by permission of the court after due notice and
130965 that Atty. Briones has withdrawn his appearance. Unless he has hearing, in which event the attorney should see to it that
withdrawn his appearance in the case, the Court would still consider him the name of the new attorney is recorded in the case.
as counsel for the accused-appellant and he is expected to comply with An attorney who could not get the written consent of his
all its orders and directives. client must make an application to the court, for the
It should be stressed that every case a lawyer accepts deserves his full relation does not terminate formally until there is a
attention, diligence, skill and competence, regardless of its importance withdrawal of record. Counsel has no right to presume
and whether he accepts it for a fee or for free.[2] A lawyers fidelity to the that the court would grand his withdrawal and therefore
cause of his client requires him to be ever mindful of the responsibilities must still appear on the date of hearing.
Page 372

that should be expected of him. He is mandated to exert his best efforts Requirements for the Substitution of Counsel in a Case:
to protect within the bounds of the law the interest of his client. The Code 1. written application

Intelligentia et Scientia Semper Mea

LEGAL ETHICS
2. written consent of client
3. written consent of attorney to be substituted
4. if the consent of the attorney to be substituted
cannot be obtained, there must be at least a proof
of notice that the motion for substitution has been
served upon him, in the manner prescribed by the
rules.
A lawyer cannot recover compensation from one who did
not employ or authorize his employment, however
valuable the results of his services may have been to
such person. In similar cases, no compensation when:
1. client conducts himself in a manner which tends to
degrade his attorney;
2. client refuses to extend cooperation;
3. client stops having contact with him.
The right of a client to terminate a lawyer is
absolute. Such termination may be with or without
cause.
[G.R. No. 134854. January 18, 2000]
FELIZARDO S. OBANDO and the ESTATES of JOSE FIGUERAS and
DOA ALEGRIA STREBEL VDA. DE FIGUERAS, petitioners, vs.
EDUARDO F. FIGUERAS andAMIGO REALTY CORPORATION as
represented by ANTONIO A. KAW, respondents.
DECISION
PANGANIBAN, J.:
In resolving this appeal, the Court invokes the following principles: (1) a
lawyers standing in a case remains, until a substitute takes over pursuant
to Section 26, Rule 138 of the Rules of Court; (2) a trial court may act
upon a motion to dismiss at any time a ground therefor becomes
available, even after a responsive pleading to the complaint has already
been filed; (3) a civil case initiated by an estate administrator may be
dismissed upon a showing that the said administrators appointment as
such has been revoked by the probate court; and (4) the dismissal of an
action may be made after the ground therefor becomes known, even if
the trial court has refused to do so earlier when that ground was not yet
available.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court,
seeking to annul the July 30, 1998 Decision of the Court of Appeals[1] in
CA-GR SP No. 47594, which affirmed the dismissal, without prejudice,
of Petitioner Felizardo Obandos action for annulment of contract and
reconveyance earlier ordered by the Regional Trial Court (RTC) of
Quezon City,[2] Branch 218. Mis spped
The Facts
In 1964, Alegria Strebel Figueras, together with her stepsons, Eduardo
and Francisco, filed a Petition for settlement of the intestate estate of her
deceased husband Jose Figueras.[3] While settlement of the estate was
pending, she died and Eduardo assumed administration of the joint
estates of Don Jose and Doa Alegria. Hardly had the proceedings in both
intestacies begun when Eduardo was served a Petition for Probate of
what purported to be Doa Alegrias Last Will and Testament, filed by
Felizardo S. Obando (herein petitioner), a nephew of Doa Alegria.[4]
The alleged Will bequeathed to Petitioner Obando and several other
members of the Obando clan properties left by the Figueras couple,
including two parcels of land in Gilmore Avenue, New Manila, Quezon
City, covered by TCT Nos. 13741 and 17679.[5] When the probate case
was consolidated with the intestate proceedings, Petitioner Obando was
appointed as Eduardos co-administrator of the joint estates.[6]
As Eduardo insisted that the alleged Will was a forgery, the document
was submitted to the National Bureau of Investigation (NBI) for
examination and comparison of Doa Alegrias alleged signature therein
with samples which both parties accepted as authentic. The NBI found
that the questioned and the standard signatures were not made by the
same person.[7] This led to the indictment and the conviction of Petitioner
PINEDAPCGRNMAN
Obando in Criminal Case 90-85819[8] for estafa through falsification of a
public document.
On February 20, 1990, the probate court denied Eduardos Motion for
authority to sell the aforementioned two parcels of land in New
Manila.[9] Despite such denial, Eduardo sold the lots to Amigo Realty
Corporation on the strength of an Order issued by the probate court on
May 15, 1991. New titles were issued for these lots in the name of Amigo
Realty.[10]
On June 4, 1992, Petitioner Obando, in his capacity as co-administrator
and universal heir of Doa Alegria, filed a Complaint against Eduardo and
Amigo Realty (collectively referred to as the respondents) for the
nullification of the sale. The proceedings were docketed as Civil Case
No. Q-92-12384 and raffled to the Regional Trial Court of Quezon City,
Branch 79.
However, in Special Proceeding Nos. 61567 and 123948, the probate
court, in its Order dated December 17, 1997, removed Petitioner Obando
from his office as co-administrator of the joint estate of the Figueras
spouses.[11] Consequently, in the civil case, respondents filed a Joint
Motion to Dismiss dated January 27, 1998, after Obando had rested his
case. The respondents built their evidence around the loss of his legal
standing to pursue the case.[12] In its Order dated February 11, 1993, the
trial court granted the Motion and dismissed the civil case without
prejudice.[13] Jo spped
Petitioner Obando filed a Motion for Reconsideration to no avail. As
earlier stated, the Court of Appeals likewise dismissed his Petition for
Certiorari and Mandamus and affirmed the dismissal Order of the
RTC.[14]
Ruling of the Court of Appeals
The Court of Appeals rejected the contention of Obando that he did not
lose his legal personality to prosecute the civil case since there was no
categorical statement that the purported will was a forgery and its
probate was still pending.
The CA affirmed the dismissal of the action for reconveyance because
the probate courts Order dated February 5, 1998 "alluded" to the fact
that the alleged Will was a forgery. That the probate of the alleged Will
had not yet been decided on the merits did not change the fact that the
probate court had removed Petitioner Obando as co-administrator. The
dismissal of the civil case was without prejudice, because the trial judge
anticipated that Obando could regain co-administration of the estates on
appeal.
Hence, this Petition.[15]
Assignment of Errors
In their Memorandum, petitioners raise the following issues:[16]
"A........WHETHER OR NOT THE COURT OF APPEALS GRAVELY
ERRED IN SANCTIONING THE TRIAL COURTS ALLOWANCE OF
RESPONDENTS JOINT MOTION TO DISMISS, DESPITE THE FACT
THAT ONE OF THE LAWYER-MOVANTS THEREIN WAS NO
LONGER THE COUNSEL OF RECORD FOR RESPONDENT
FIGUERAS AT THE TIME THE MOTION WAS FILED.
"B........WHETHER OR NOT THE COURT OF APPEALS GRAVELY
ERRED IN SANCTIONING THE TRIAL COURTS RADICAL
DEPARTURE FROM THE LAW WHEN IT GRANTED A MOTION TO
DISMISS ON LACK OF CAPACITY TO SUE/LEGAL STANDING AT
THE TIME WHEN THE [PETITIONERS] HAVE ALREADY RESTED
THEIR CASE AND THE [RESPONDENTS] HAVE BEGUN
PRESENTATION OF THEIR EVIDENCE.
"C........WHETHER OR NOT THE COURT OF APPEALS GRAVELY
ERRED WHEN IT SANCTIONED THE TRIAL COURTS DISMISSAL OF
THE CASE BASED ON ORDERS OF OTHER COURTS THAT HAVE
NOT YET ATTAINED FINALITY. Spped jo
"D........WHETHER OR NOT THE COURT OF APPEALS GRAVELY
ERRED WHEN IT UPHELD THE TRIAL COURTS WHIMSICAL AND
CAPRICIOUS DEPARTURE FROM ITS PREVIOUS RULINGS
DENYING RESPONDENTS MOTION TO DISMISS AND MOTION TO
Page 373
SUSPEND PROCEEDINGS.
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LEGAL ETHICS
"E........WHETHER OR NOT THE COURT OF APPEALS GRAVELY
ERRED WHEN IT RENDERED ITS 30 JULY 1998 DECISION IN CA-
G.R. 47594 UPHOLDING THE TRIAL COURTS ORDERS DATED 11
FEBRUARY 1998 AND 12 MARCH 1998."
Simply stated, the following issues are raised by the petitioners: (1)
whether the trial court could act on a motion filed by a lawyer who was
allegedly no longer Eduardos counsel of record; (2) whether a motion to
dismiss filed after the responsive pleadings were already made can still
be granted; (3) whether the conviction of Petitioner Obando for estafa
through falsification and the revocation of his appointment as
administrator, both of which are on appeal, constitute sufficient grounds
to dismiss the civil case; and (4) whether there was a conflict between
the Order dismissing the civil case and the previous actions of the trial
court.
The Courts Ruling
The Petition is devoid of merit.
First Issue:
Counsel of Record
Petitioners claim that when Atty. Joaquin Yuseco filed the Motion to
Dismiss, he no longer represented the respondents, as shown by
Eduardos Manifestation and Motion dated January 8, 1998, dispensing
with said counsels services in the proceedings in view of a Compromise
Agreement with Petitioner Obando.[17]
We disagree. Representation continues until the court dispenses with the
services of counsel in accordance with Section 26, Rule 138 of the Rules
of Court.[18] Counsel may be validly substituted only if the following
requisites are complied with: (1) new counsel files a written application
for substitution; (2) the clients written consent is obtained; and (3) the
written consent of the lawyer to be substituted is secured, if it can still be;
if the written consent can no longer be obtained, then the application for
substitution must carry proof that notice of the motion has been served
on the attorney to be substituted in the manner required by the
Rules.[19] Miso
In this case, we are convinced that Eduardo did not dismiss Attorney
Yuseco. In fact, the former manifested that he had been tricked by
Petitioner Obando into signing the aforesaid Manifestation and Motion
and Compromise Agreement. Besides, the filing of the Motion to Dismiss
was not prejudicial but beneficial to the said respondent; hence, he had
no reason to complain. At the discretion of the court, an attorney who
has already been dismissed by the client is allowed to intervene in a case
in order to protect the clients rights. In the present case, had there been
any irregularity, it should have been raised by the respondents, not the
petitioners.
Second Issue:
Timeliness of the Motion to Dismiss
The Rules provide that a motion to dismiss may be submitted only before
the filing of a responsive pleading.[20] Thus, petitioners complain that it
was already too late for Respondent Eduardo Figueras to file a Motion
to Dismiss after Obando had finished presenting his evidence.
This is not so. The period to file a motion to dismiss depends upon the
circumstances of the case. Section 1 of Rule 16 of the Rules of Court
requires that, in general, a motion to dismiss should be filed within the
reglementary period for filing a responsive pleading. Thus, a motion to
dismiss alleging improper venue cannot be entertained unless made
within that period.[21] Nex old
However, even after an answer has been filed, the Court has allowed a
defendant to file a motion to dismiss on the following grounds: (1) lack of
jurisdiction,[22] (2) litis pendentia,[23] (3) lack of cause of action,[24] and (4)
discovery during trial of evidence that would constitute a ground for
dismissal.[25] Except for lack of cause of action or lack of jurisdiction, the
grounds under Section 1 of Rule 16 may be waived. If a particular ground
for dismissal is not raised or if no motion to dismiss is filed at all within
the reglementary period, it is generally considered waived under Section
1, Rule 9 of the Rules.[26] Manikx
Applying this principle to the case at bar, the respondents did not waive
their right to move for the dismissal of the civil case based on Petitioner
PINEDAPCGRNMAN
Obandos lack of legal capacity. It must be pointed out that it was only
after he had been convicted of estafa through falsification that the
probate court divested him of his representation of the Figueras estates.
It was only then that this ground became available to the respondents.
Hence, it could not be said that they waived it by raising it in a Motion to
Dismiss filed after their Answer was submitted. Verily, if the plaintiff loses
his capacity to sue during the pendency of the case, as in the present
controversy, the defendant should be allowed to file a motion to dismiss,
even after the lapse of the reglementary period for filing a responsive
pleading.
Third Issue:
Removal from Administration
Petitioners aver that it was premature for the trial court to dismiss the
civil case because Obandos conviction for estafa through falsification
was still on appeal.
We disagree. This argument has no bearing at all on the dismissal of the
civil case. Petitioner Obando derived his power to represent the estate
of the deceased couple from his appointment as co-
administrator.[27] When the probate court removed him from office, he
lost that authority. Since he lacked the legal capacity to sue on behalf of
the Figueras estates, he could not continue prosecuting the civil
case.[28] Thus the trial court properly granted the Motion to Dismiss on
this ground.[29] Whether a final conviction for a crime involving moral
turpitude is necessary to remove him from his administration is not a
proper issue in this Petition. He should raise the matter in his appeal of
the Decision removing him from administration of the Figueras
estates. Maniks
The fact that the conviction of Obando and his removal from
administration are on appeal only means that his legal standing could be
restored; thus, the civil case was correctly dismissed without prejudice.
If his conviction is reversed and his appointment restored by the probate
court, the case may continue without being barred by res judicata. The
lower courts Decision showed that it was careful in its action. On the
other hand, Obando has yet to show that he has regained administration
of the Figueras estates. Noteworthy also is the fact that his removal from
office was predicated not only on his conviction for a crime, but also on
his failure to render an accounting of the rentals of a property leased to
the Community of Learners.
Fourth Issue:
No Conflicting Rulings
Respondent Eduardo Figueras earlier Motion to Dismiss was denied in
the trial courts March 4, 1993 Order which reads:
"x x x [I]t is pertinent to note that the criminal case of Estafa through
Falsification of Public Document filed against [petitioner] and the Petition
to Remove him as co-administrator are still pending determination. Thus,
suffice it to state that while herein [petitioner] remains as the co-
administrator of the estates of the deceased Figueras the Court will
continue to recognize his right to institute the instant case in his capacity
as judicial administrator, unless he be removed as such by the probate
Court pursuant to Rule 82 of the Revised Rules of Court."[30]
Thus, petitioners allege that the trial court whimsically and capriciously
departed from its previous rulings when, in its Resolution dated February
11, 1993, it granted Eduardos later Motion to Dismiss.[31]
We cannot see any conflict between these trial court rulings. Obviously,
they were based on different grounds. The first Motion to Dismiss was
denied because, at the time, Petitioner Obando still had legal capacity to
sue as co-administrator of the Figueras estates. On the other hand, the
second Motion was granted because the probate court had already
removed him from his office as co-administrator. The change in his legal
capacity accounts for the difference in the adjudication of the trial court.
We see no reversible error in the appellate courts affirmance of the trial
court.
WHEREFORE, the Petition is hereby DENIED and the assailed
Resolution AFFIRMED. Costs against petitioners.
Page 374
SO ORDERED.
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