SUBJECT: TOPIC: Date Made: Digest Maker:

LegProf Rule 7.03 No 2-22-2016 Juvy

conduct adversely
affecting the
profession
CASE NAME: Advincula vs Macabata
PONENTE: Chico-Nazario, J. Case Date: March 7, 2007
Case Summary:
This is a complaint for disbarment filed by Cynthia Advincula against respondent Atty.
Ernesto M. Macabata, charging the latter with gross immorality. Respondent is the
petitioners counsel for a case to demand payment from a tour company. Petitioner
accused respondent of sexual harassment by kissing her and touching her breasts when
respondent sent the petitioner home after their meeting to discuss the petitioners case.
Respondent admitted to kissing the petitioner but denied the touching of her breast.
Moreover, he claimed that no force was used. SC held that the acts of respondent in
turning the head of complainant towards him and kissing her on the lips are distasteful.
However, such act, even if considered offensive and undesirable, cannot be considered
grossly immoral. It was also not motivated by malice. Petitioners own assessment of the
incidents is highly subjective and partial, and surely needs to be corroborated or
supported by more objective evidence. Petitioner miserably failed to comply with the
burden of proof required of her. A mere charge or allegation of wrongdoing does not
suffice. Wherefore, respondent is only reprimanded with stern warning.

Rule of Law:

Rule 1.01-- A lawyer shall not engage in unlawful, dishonest, immoral or deceitful
conduct.

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.

Detailed Facts:

Petitioner seek the legal advice of the respondent regarding her collectibles from
Queensway Travel and Tours. Respondent then sent a demand letter to Queensway
but the latter failed to pay.
They then decided to meet in a restaurant to took about the case but after the
dinner, respondent sent complainant home and while she was about to step out of
the car, respondent held her arm and kissed her on the cheek and embraced her
very tightly.
They met again to finalize the draft of the complaint against Queensway and after
the meeting, respondent offered again a ride, which he usually did every time they
met. Along the way, complainant was wandering why she felt so sleepy when in
fact she just got up from bed a few hours ago. When she was almost restless,
respondent stopped his car and forcefully held her face and kissed her lips while
the other hand was holding her breast. She was able to resist his attempts and was

BLOCK D 2019 1
 able to manage to get out of the car. Late that afternoon, petitioner sent a text
message to respondent informing him that she decided to refer the case with
another lawyer and needs to get back the case folder from him. The
communications transpired was recorded in her cellular phone.
RESPONDENTS DEFENSE: He admitted that he held and kissed complainant on the
lips as the former offered her lips to him. There was no force used. No intimidation
made, no lewd designs displayed. No breast holding was done. Everything
happened very spontaneously with no reaction from her except saying "sexual
harassment. Regarding the second incident, he argued that it was a busy street
teeming with people, thus, it would have been impossible to commit the acts
imputed to him.
IBP suspended respondent for 3 months.
Issue:
Whether respondent committed acts that are grossly immoral or which constitute serious
moral depravity that would warrant his disbarment or suspension from the practice of
law - NO
Holding:
Lawyers 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.
Barrientos v. Daarol: 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.
Bar Matter No. 1154: good moral character was defined as what a person really is,
as distinguished from good reputation, or from the opinion generally entertained of
him, or the estimate in which he is held by the public in the place where he is
known. Moral character is not a subjective term but one which corresponds to
objective reality.
It should be noted that the requirement of good moral character has four
ostensible purposes, namely: (1) to protect the public; (2) to protect the public
image of lawyers; (3) to protect prospective clients; and (4) to protect errant
lawyers from themselves.
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, as such conduct which is so willful, flagrant, or shameless as to
show indifference to the opinion of good and respectable members of the
community. Furthermore, for such conduct to warrant disciplinary action, the same
must not simply be immoral, but grossly immoral. It must be so corrupt as to
constitute a criminal act, or so unprincipled as to be reprehensible to a high degree
or committed under such scandalous or revolting circumstances as to shock the
common sense of decency.
Immorality has not been confined to sexual matters, but includes conduct

BLOCK D 2019 2
 inconsistent with rectitude, or indicative of corruption, indecency, depravity and
dissoluteness; or is willful, flagrant, or shameless conduct showing moral
indifference to opinions of respectable members of the community, and an
inconsiderate attitude toward good order and public welfare.
Acts of kissing or beso-beso on the cheeks are perceived as mere
gestures of friendship and camaraderie, forms of greetings, casual and
customary. The acts of respondent, though, in turning the head of
complainant towards him and kissing her on the lips are distasteful.
However, such act, even if considered offensive and undesirable, cannot
be considered grossly immoral.
Petitioners bare allegation that respondent made use and took advantage of his
position as a lawyer to lure her to agree to have sexual relations with him,
deserves no credit. The burden of proof rests on the complainant, and she must
establish the case against the respondent by clear, convincing and satisfactory
proof, disclosing a case that is free from doubt as to compel the exercise by the
Court of its disciplinary power. The burden of proof lies on the party who makes the
allegations. In the case at bar, complainant miserably failed to comply with the
burden of proof required of her. A mere charge or allegation of wrongdoing does
not suffice. Accusation is not synonymous with guilt.
While respondent admitted having kissed complainant on the lips, the same was
not motivated by malice. SC came to this conclusion because right after the
complainant expressed her annoyance at being kissed by the respondent through
a cellular phone text message, respondent immediately extended an apology to
complainant also via cellular phone text message. Also, if respondent truly had
malicious designs on complainant, he could have brought her to a private place or
a more remote place where he could freely accomplish the same. Respondents
acts are not grossly immoral nor highly reprehensible to warrant disbarment or
suspension. Petitioners own assessment of the incidents is highly subjective and
partial, and surely needs to be corroborated or supported by more objective
evidence.
When deciding upon the appropriate sanction, the Court must consider that the
primary purposes of disciplinary proceedings are to protect the public; to foster
public confidence in the Bar; to preserve the integrity of the profession; and to
deter other lawyers from similar misconduct. Disciplinary proceedings are means
of protecting the administration of justice by requiring those who carry out this
important function to be competent, honorable and reliable men in whom courts
and clients may repose confidence.
Censure or reprimand is usually meted out for an isolated act of misconduct of a
lesser nature. Based on the circumstances of the case as discussed and
considering that this is respondents first offense, reprimand would suffice.

Ruling:
Reprimanded with stern warning
Other Opinions:
NONE

BLOCK D 2019 3
BLOCK D 2019 4