1
EN BANC
ROBERTO SORIANO, Complainant,
- versus -
Atty. MANUEL DIZON, Respondent.
A.C. No. 6792, January 25, 2006
DECISION
PER CURIAM:
Before us is a Complaint-Affidavit for the disbarment of Atty.
Manuel Dizon, filed by Roberto Soriano with the Commission
on Bar Discipine (CBD) of the Integrated Bar of the Philippines
(IBP). Complainant alleges that the conviction of respondent
for a crime involving moral turpitude, together with the
circumstances surrounding the conviction, violates Canon 1 of
Rule 1.01 of the Code of Professional Responsibility; and
constitutes sufficient ground for his disbarment under Section
27 of Rule 138 of the Rules of Court.
Because of the failure of Atty. Dizon to submit his Answer to
the Complaint, the CBD issued a Notice dated May 20, 2004,
informing him that he was in default, and that an ex-parte
hearing had been scheduled for June 11, 2004.
After that hearing, complainant manifested that he was
submitting the case on the basis of the Complaint and its
attachments. Accordingly, the CBD directed him to file his
Position Paper, which he did on July 27, 2004. Afterwards, the
case was deemed submitted for resolution.
On December 6, 2004, Commissioner Teresita J. Herbosa
rendered her Report and Recommendation, which was later
adopted and approved by the IBP Board of Governors in its
Resolution No. XVI-2005-84 dated March 12, 2005.
In his Complaint-Affidavit, Soriano alleged that respondent had
violated Canon 1, Rule 1.01 of the Code of Professional
Responsibility; and that the conviction of the latter for frustrated
homicide, which involved moral turpitude, should result in his
disbarment.
The facts leading to respondents conviction were summarized
by Branch 60 of the Regional Trial Court of Baguio City in this
wise:
x x x. The accused was driving his brown Toyota Corolla and
was on his way home after gassing up in preparation for his
trip to Concepcion, Tarlac with his wife. Along Abanao Street, a
taxi driver overtook the car driven by the accused not knowing
that the driver of the car he had overtaken is not just someone,
but a lawyer and a prominent member of the Baguio
community who was under the influence of liquor. Incensed,
the accused tailed the taxi driver until the latter stopped to
make a turn at [the] Chugum and Carino Streets. The accused
also stopped his car, berated the taxi driver and held him by
his shirt. To stop the aggression, the taxi driver forced open his
door causing the accused to fall to the ground. The taxi driver
knew that the accused had been drinking because he smelled
of liquor. Taking pity on the accused who looked elderly, the
taxi driver got out of his car to help him get up. But the
accused, by now enraged, stood up immediately and was
about to deal the taxi driver a fist blow when the latter boxed
him on the chest instead. The accused fell down a second
time, got up again and was about to box the taxi driver but the
latter caught his fist and turned his arm around. The taxi driver
held on to the accused until he could be pacified and then
released him. The accused went back to his car and got his
revolver making sure that the handle was wrapped in a
handkerchief. The taxi driver was on his way back to his
vehicle when he noticed the eyeglasses of the accused on the
ground. He picked them up intending to return them to the
accused. But as he was handing the same to the accused, he
was met by the barrel of the gun held by the accused who fired
and shot him hitting him on the neck. He fell on the thigh of the
accused so the latter pushed him out and sped off. The
incident was witnessed by Antonio Billanes whose testimony
corroborated that of the taxi driver, the complainant in this
case, Roberto Soriano.
It was the prosecution witness, Antonio Billanes, who came to
the aid of Soriano and brought the latter to the hospital.
Because the bullet had lacerated the carotid artery on the left
side of his neck, complainant would have surely died of
hemorrhage if he had not received timely medical assistance,
according to the attending surgeon, Dr. Francisco Hernandez,
Jr. Soriano sustained a spinal cord injury, which caused
paralysis on the left part of his body and disabled him for his
job as a taxi driver.
The trial court promulgated its Decision dated November 29,
2001. On January 18, 2002, respondent filed an application for
probation, which was granted by the court on several
conditions. These included satisfaction of the civil liabilities
imposed by [the] court in favor of the offended party, Roberto
Soriano.
According to the unrefuted statements of complainant, Atty.
Dizon, who has yet to comply with this particular undertaking,
even appealed the civil liability to the Court of Appeals.
In her Report and Recommendation, Commissioner Herbosa
recommended that respondent be disbarred from the practice
of law for having been convicted of a crime involving moral
turpitude.
The commissioner found that respondent had not only been
convicted of such crime, but that the latter also exhibited an
obvious lack of good moral character, based on the following
facts:
1. He was under the influence of liquor while driving his car;
2. He reacted violently and attempted to assault Complainant
only because the latter, driving a taxi, had overtaken him;
3. Complainant having been able to ward off his attempted
assault, Respondent went back to his car, got a gun, wrapped
the same with a handkerchief and shot Complainant[,] who
was unarmed;
4. When Complainant fell on him, Respondent simply pushed
him out and fled;
5. Despite positive identification and overwhelming evidence,
Respondent denied that he had shot Complainant;
6. Apart from [his] denial, Respondent also lied when he
claimed that he was the one mauled by Complainant and two
unidentified persons; and,
7. Although he has been placed on probation, Respondent
has[,] to date[,] not yet satisfied his civil liabilities to
Complainant.
On July 8, 2005, the Supreme Court received for its final action
the IBP Resolution adopting the Report and Recommendation
of the Investigating Commissioner.
We agree with the findings and recommendations of
Commissioner Herbosa, as approved and adopted by the IBP
Board of Governors.
Under Section 27 of Rule 138 of the Rules of Court, conviction
for a crime involving moral turpitude is a ground for disbarment
or suspension. By such conviction, a lawyer is deemed to have
become unfit to uphold the administration of justice and to be
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no longer possessed of good moral character. In the instant
case, respondent has been found guilty; and he stands
convicted, by final judgment, of frustrated homicide. Since his
conviction has already been established and is no longer open
to question, the only issues that remain to be determined are
as follows: 1) whether his crime of frustrated homicide involves
moral turpitude, and 2) whether his guilt warrants disbarment.
Moral turpitude has been defined as everything which is done
contrary to justice, modesty, or good morals; an act of
baseness, vileness or depravity in the private and social duties
which a man owes his fellowmen, or to society in general,
contrary to justice, honesty, modesty, or good morals.
The question of whether the crime of homicide involves moral
turpitude has been discussed in International Rice Research
Institute (IRRI) v. NLRC, a labor case concerning an employee
who was dismissed on the basis of his conviction for homicide.
Considering the particular circumstances surrounding the
commission of the crime, this Court rejected the employers
contention and held that homicide in that case did not involve
moral turpitude. (If it did, the crime would have been violative
of the IRRIs Employment Policy Regulations and indeed a
ground for dismissal.) The Court explained that, having
disregarded the attendant circumstances, the employer made
a pronouncement that was precipitate. Furthermore, it was not
for the latter to determine conclusively whether a crime
involved moral turpitude. That discretion belonged to the
courts, as explained thus:
x x x. Homicide may or may not involve moral turpitude
depending on the degree of the crime. Moral turpitude is not
involved in every criminal act and is not shown by every known
and intentional violation of statute, but whether any particular
conviction involves moral turpitude may be a question of fact
and frequently depends on all the surrounding circumstances.
x x x.(Emphasis supplied)
In the IRRI case, in which the crime of homicide did not involve
moral turpitude, the Court appreciated the presence of
incomplete self-defense and total absence of aggravating
circumstances. For a better understanding of that Decision, the
circumstances of the crime are quoted as follows:
x x x. The facts on record show that Micosa [the IRRI
employee] was then urinating and had his back turned when
the victim drove his fist unto Micosa's face; that the victim then
forcibly rubbed Micosa's face into the filthy urinal; that Micosa
pleaded to the victim to stop the attack but was ignored and
that it was while Micosa was in that position that he drew a fan
knife from the left pocket of his shirt and desperately swung it
at the victim who released his hold on Micosa only after the
latter had stabbed him several times. These facts show that
Micosa's intention was not to slay the victim but only to defend
his person. The appreciation in his favor of the mitigating
circumstances of self-defense and voluntary surrender, plus
the total absence of any aggravating circumstance
demonstrate that Micosa's character and intentions were not
inherently vile, immoral or unjust.
The present case is totally different. As the IBP correctly found,
the circumstances clearly evince the moral turpitude of
respondent and his unworthiness to practice law.
Atty. Dizon was definitely the aggressor, as he pursued and
shot complainant when the latter least expected it. The act of
aggression shown by respondent will not be mitigated by the
fact that he was hit once and his arm twisted by complainant.
Under the circumstances, those were reasonable actions
clearly intended to fend off the lawyers assault.
We also consider the trial courts finding of treachery as a
further indication of the skewed morals of respondent. He shot
the victim when the latter was not in a position to defend
himself. In fact, under the impression that the assault was
already over, the unarmed complainant was merely returning
the eyeglasses of Atty. Dizon when the latter unexpectedly
shot him. To make matters worse, respondent wrapped the
handle of his gun with a handkerchief so as not to leave
fingerprints. In so doing, he betrayed his sly intention to escape
punishment for his crime.
The totality of the facts unmistakably bears the earmarks of
moral turpitude. By his conduct, respondent revealed his
extreme arrogance and feeling of self-importance. As it were,
he acted like a god on the road, who deserved to be venerated
and never to be slighted. Clearly, his inordinate reaction to a
simple traffic incident reflected poorly on his fitness to be a
member of the legal profession. His overreaction also evinced
vindictiveness, which was definitely an undesirable trait in any
individual, more so in a lawyer. In the tenacity with which he
pursued complainant, we see not the persistence of a person
who has been grievously wronged, but the obstinacy of one
trying to assert a false sense of superiority and to exact
revenge.
It is also glaringly clear that respondent seriously transgressed
Canon 1 of the Code of Professional Responsibility through his
illegal possession of an unlicensed firearm and his unjust
refusal to satisfy his civil liabilities.
He has thus brazenly violated the law and disobeyed the lawful
orders of the courts. We remind him that, both in his attorneys
oath and in the Code of Professional Responsibility, he bound
himself to obey the laws of the land.
All told, Atty. Dizon has shown through this incident that he is
wanting in even a basic sense of justice. He obtained the
benevolence of the trial court when it suspended his sentence
and granted him probation. And yet, it has been four years
since he was ordered to settle his civil liabilities to complainant.
To date, respondent remains adamant in refusing to fulfill that
obligation. By his extreme impetuosity and intolerance, as
shown by his violent reaction to a simple traffic altercation, he
has taken away the earning capacity, good health, and youthful
vigor of his victim. Still, Atty. Dizon begrudges complainant the
measly amount that could never even fully restore what the
latter has lost.
Conviction for a crime involving moral turpitude may relate, not
to the exercise of the profession of lawyers, but certainly to
their good moral character. Where their misconduct outside of
their professional dealings is so gross as to show them morally
unfit for their office and unworthy of the privileges conferred
upon them by their license and the law, the court may be
justified in suspending or removing them from that office.
We also adopt the IBPs finding that respondent displayed an
utter lack of good moral character, which is an essential
qualification for the privilege to enter into the practice of law.
Good moral character includes at least common honesty.
In the case at bar, respondent consistently displayed dishonest
and duplicitous behavior. As found by the trial court, he had
sought, with the aid of Vice-Mayor Daniel Farias, an out-of-
court settlement with complainants family. But when this effort
failed, respondent concocted a complete lie by making it
appear that it was complainants family that had sought a
conference with him to obtain his referral to a neurosurgeon.
The lies of Atty Dizon did not end there. He went on to
fabricate an entirely implausible story of having been mauled
by complainant and two other persons. The trial court had this
to say:
The physical evidence as testified to by no less than three (3)
doctors who examined [Atty. Dizon] does not support his
allegation that three people including the complainant helped
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each other in kicking and boxing him. The injuries he sustained
were so minor that it is improbable[,] if not downright
unbelievable[,] that three people who he said were bent on
beating him to death could do so little damage. On the
contrary, his injuries sustain the complainants version of the
incident particularly when he said that he boxed the accused
on the chest. x x x.
Lawyers must be ministers of truth. No moral qualification for
bar membership is more important than truthfulness. The
rigorous ethics of the profession places a premium on honesty
and condemns duplicitous behavior. Hence, lawyers must not
mislead the court or allow it to be misled by any artifice. In all
their dealings, they are expected to act in good faith.
The actions of respondent erode rather than enhance public
perception of the legal profession. They constitute moral
turpitude for which he should be disbarred. Law is a noble
profession, and the privilege to practice it is bestowed only
upon individuals who are competent intellectually,
academically and, equally important, morally. Because they
are vanguards of the law and the legal system, lawyers must at
all times conduct themselves, especially in their dealings with
their clients and the public at large, with honesty and integrity
in a manner beyond reproach.
The foregoing abhorrent acts of respondent are not merely
dishonorable; they reveal a basic moral flaw. Considering the
depravity of the offense he committed, we find the penalty
recommended by the IBP proper and commensurate.
The purpose of a proceeding for disbarment is to protect the
administration of justice by requiring that those who exercise
this important function be competent, honorable and reliable --
lawyers in whom courts and clients may repose confidence.
Thus, whenever a clear case of degenerate and vile behavior
disturbs that vital yet fragile confidence, we shall not hesitate to
rid our profession of odious members.
We remain aware that the power to disbar must be exercised
with great caution, and that disbarment should never be
decreed when any lesser penalty would accomplish the end
desired. In the instant case, however, the Court cannot extend
that munificence to respondent. His actions so despicably and
wantonly disregarded his duties to society and his profession.
We are convinced that meting out a lesser penalty would be
irreconcilable with our lofty aspiration for the legal profession --
that every lawyer be a shining exemplar of truth and justice.
We stress that membership in the legal profession is a
privilege demanding a high degree of good moral character,
not only as a condition precedent to admission, but also as a
continuing requirement for the practice of law. Sadly, herein
respondent has fallen short of the exacting standards expected
of him as a vanguard of the legal profession.
In sum, when lawyers are convicted of frustrated homicide, the
attending circumstances not the mere fact of their conviction
would demonstrate their fitness to remain in the legal
profession. In the present case, the appalling vindictiveness,
treachery, and brazen dishonesty of respondent clearly show
his unworthiness to continue as a member of the bar.
WHEREFORE, RESPONDENT MANUEL DIZON is hereby
DISBARRED, and his name is ORDERED STRICKEN from the
Roll of Attorneys. Let a copy of this Decision be entered in his
record as a member of the Bar; and let notice of the same be
served on the Integrated Bar of the Philippines, and on the
Office of the Court Administrator for circulation to all courts in
the country.
SO ORDERED
EN BANC
ST. LOUIS UNIVERSITY LABORATORY HIGH SCHOOL
(SLU-LHS) FACULTY and STAFF, Complainant,
- versus -
ATTY. ROLANDO C. DELA CRUZ, Respondent.
A.C. No. 6010, August 28, 2006
DECISION
CHICO-NAZARIO, J.:
This is a disbarment case filed by the Faculty members and
Staff of the Saint Louis University-Laboratory High School
(SLU-LHS) against Atty. Rolando C. Dela Cruz, principal of
SLU-LHS, predicated on the following grounds:
1) Gross Misconduct:
From the records of the case, it appears that there is a pending
criminal case for child abuse allegedly committed by him
against a high school student filed before the Prosecutors
Office of Baguio City; a pending administrative case filed by
the Teachers, Staff, Students and Parents before an
Investigating Board created by SLU for his alleged
unprofessional and unethical acts of misappropriating money
supposedly for the teachers; and the pending labor case filed
by SLU-LHS Faculty before the NLRC, Cordillera
Administrative Region, on alleged illegal deduction of salary by
respondent.
2) Grossly Immoral Conduct:
In contracting a second marriage despite the existence of his
first marriage; and
3) Malpractice:
In notarizing documents despite the expiration of his
commission.
According to complainant, respondent was legally married to
Teresita Rivera on 31 May 1982 at Tuba, Benguet, before the
then Honorable Judge Tomas W. Macaranas. He thereafter
contracted a subsequent marriage with one Mary Jane
Pascua, before the Honorable Judge Guillermo Purganan. On
4 October 1994, said second marriage was subsequently
annulled for being bigamous.
On the charge of malpractice, complainant alleged that
respondent deliberately subscribed and notarized certain legal
documents on different dates from 1988 to 1997, despite
expiration of respondents notarial commission on 31
December 1987. A Certification dated 25 May 1999 was issued
by the Clerk of Court of Regional Trial Court (RTC), Baguio
City, to the effect that respondent had not applied for
commission as Notary Public for and in the City of Baguio for
the period 1988 to 1997. Respondent performed acts of
notarization, as evidenced by the following documents:
1. Affidavit of Ownership dated 8 March 1991,
executed by Fernando T. Acosta, subscribed and sworn to
before Rolando Dela Cruz;
2. Affidavit dated 26 September 1992, executed by
Maria Cortez Atos, subscribed and sworn to before Rolando
Dela Cruz;
3. Affidavit dated 14 January 1992, executed by
Fanolex James A. Menos, subscribed and sworn to before
Rolando Dela Cruz;
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4. Affidavit dated 23 December 1993, executed by
Ponciano V. Abalos, subscribed and sworn to before Rolando
Dela Cruz;
5. Absolute Date of Sale dated 23 June 1993,
executed by Danilo Gonzales in favor of Senecio C. Marzan,
notarized by Rolando Dela Cruz;
6. Joint Affidavit By Two Disinherited Parties dated 5
March 1994, executed by Evelyn C. Canullas and Pastora C.
Tacadena, subscribed and sworn to before Rolando Dela Cruz;
7. Sworn Statement dated 31 May 1994, executed
by Felimon B. Rimorin, subscribed and sworn to before
Rolando Dela Cruz;
8. Deed of Sale dated 17 August 1994, executed by
Woodrow Apurado in favor of Jacinto Batara, notarized by
Rolando Dela Cruz;
9. Joint Affidavit by Two Disinterested Parties dated
1 June 1994, executed by Ponciano V. Abalos and Arsenio C.
Sibayan, subscribed and sworn to before Rolando Dela Cruz;
10. Absolute Deed of Sale dated 23 March 1995,
executed by Eleanor D.Meridor in favor of Leonardo N. Benter,
notarized by Rolando Dela Cruz;
11. Deed of Absolute Sale dated 20 December 1996,
executed by Mandapat in favor of Mario R. Mabalot, notarized
by Rolando Dela Cruz;
12. Joint Affidavit By Two Disinterested Parties dated
17 April 1996, executed by Villiam C. Ambong and Romeo L.
Quiming, subscribed and sworn to before Rolando Dela Cruz;
13. Conditional Deed of Sale dated 27 February 1997,
executed by Aurelia Demot Cados in favor of Jose Ma. A.
Pangilinan, notarized by Rolando Dela Cruz;
14. Memorandum of Agreement[15] dated 19 July
1996, executed by JARCO represented by Mr. Johnny Teope
and AZTEC Construction represented by Mr. George Cham,
notarized by Rolando Dela Cruz.
Quite remarkably, respondent, in his comment, denied the
charges of child abuse, illegal deduction of salary and others
which are still pending before the St. Louis University (SLU),
National Labor Relations Commission (NLRC) and the
Prosecutors Office. He did not discuss anything about the
allegations of immorality in contracting a second marriage and
malpractice in notarizing documents despite the expiration of
his commission.
After the filing of comment, We referred the case to the
Integrated Bar of the Philippines (IBP), for investigation, report
and recommendation.
The IBP conducted the mandatory preliminary conference.
The complainants, thereafter, submitted their position paper
which is just a reiteration of their allegations in their complaint.
Respondent, on his part, expressly admitted his second
marriage despite the existence of his first marriage, and the
subsequent nullification of the former. He also admitted having
notarized certain documents during the period when his
notarial commission had already expired. However, he offered
some extenuating defenses such as good faith, lack of malice
and noble intentions in doing the complained acts.
After the submission of their position papers, the case was
deemed submitted for resolution.
On 30 March 2005, Commissioner Acerey C. Pacheco
submitted his report and recommended that:
WHEREFORE, premises considered, it is respectfully
recommended that respondent be administratively penalized
for the following acts:
a. For contracting a second marriage without taking the
appropriate legal steps to have the first marriage annulled first,
he be suspended from the practice of law for one (1) year, and
b. For notarizing certain legal documents despite full
knowledge of the expiration of his notarial commission, he be
suspended from the practice of law for another one (1) year or
for a total of two (2) years.
On 17 December 2005, the IBP Board of Governors, approved
and adopted the recommendation of Commissioner Pacheco,
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 as Annex A and, finding
the recommendation fully supported by the evidence on record
and the applicable laws and rules, and considering that
Respondent contracted a second marriage without taking
appropriate legal steps to have the first marriage annulled,
Atty. Rolando C. dela Cruz is hereby SUSPENDED from the
practice of law for one (1) year and for notarizing legal
documents despite full knowledge of the expiration of his
notarial commission Atty. Rolando C. dela Cruz is
SUSPENDED from the practice of law for another one (1) year,
for a total of two (2) years Suspension from the practice of law.
This Court finds the recommendation of the IBP to fault
respondent well taken, except as to the penalty contained
therein.
At the threshold, it is worth stressing that the practice of law is
not a right but a privilege bestowed by the State on those who
show that they possess the qualifications required by law for
the conferment of such privilege. Membership in the bar is a
privilege burdened with conditions. A lawyer has the privilege
and right to practice law only during good behavior, and he can
be deprived of it for misconduct ascertained and declared by
judgment of the court after opportunity to be heard has been
afforded him. Without invading any constitutional privilege or
right, an attorneys right to practice law may be resolved by a
proceeding to suspend, based on conduct rendering him unfit
to hold a license or to exercise the duties and responsibilities
of an attorney. It must be understood that the purpose of
suspending or disbarring him as an attorney is to remove from
the profession a person whose misconduct has proved him
unfit to be entrusted with the duties and responsibilities
belonging to an office of attorney and, thus, to protect the
public and those charged with the administration of justice,
rather than to punish an attorney. Elaborating on this, we said
on Maligsa v. Atty. Cabanting,[19] that the Bar should maintain
a high standard of legal proficiency as well as of honesty and
fair dealing. A lawyer brings honor to the legal profession by
faithfully performing his duties to society, to the bar, to the
courts and to his clients. 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. Towards
this end, an attorney may be disbarred or suspended for any
violation of his oath or of his duties as an attorney and
counselor, which include statutory grounds enumerated in
Section 27, Rule 138 of the Rules of Court, all of these being
broad enough to cover practically any misconduct of a lawyer
in his professional or private capacity.
Equally worthy of remark is that the law profession does not
prescribe a dichotomy of standards among its members. There
is no distinction as to whether the transgression is committed
in the lawyers professional capacity or in his private life. This is
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because a lawyer may not divide his personality so as to be an
attorney at one time and a mere citizen at another. Thus, not
only his professional activities but even his private life, insofar
as the latter may reflect unfavorably upon the good name and
prestige of the profession and the courts, may at any time be
the subject of inquiry on the part of the proper authorities.
One of the conditions prior to admission to the bar is that an
applicant must possess good moral character. Possession of
such moral character as requirement to the enjoyment of the
privilege of law practice must be continuous. Otherwise,
membership in the bar may be terminated when a lawyer
ceases to have good moral conduct.
In the case at bench, there is no dispute that respondent and
Teresita Rivera contracted marriage on 31 May 1982 before
Judge Tomas W. Macaranas. In less than a year, they parted
ways owing to their irreconcilable differences without seeking
judicial recourse. The union bore no offspring. After their
separation in-fact, respondent never knew the whereabouts of
Teresita Rivera since he had lost all forms of communication
with her. Seven years thereafter, respondent became attracted
to one Mary Jane Pascua, who was also a faculty member of
SLU-LHS. There is also no dispute over the fact that in 1989,
respondent married Mary Jane Pascua in the Municipal Trial
Court (MTC) of Baguio City, Branch 68. Respondent even
admitted this fact. When the second marriage was entered
into, respondents prior marriage with Teresita Rivera was still
subsisting, no action having been initiated before the court to
obtain a judicial declaration of nullity or annulment of
respondents prior marriage to Teresita Rivera or a judicial
declaration of presumptive death of Teresita Rivera.
Respondent was already a member of the Bar when he
contracted the bigamous second marriage in 1989, having
been admitted to the Bar in 1985. As such, he cannot feign
ignorance of the mandate of the law that before a second
marriage may be validly contracted, the first and subsisting
marriage must first be annulled by the appropriate court. The
second marriage was annulled only on 4 October 1994 before
the RTC of Benguet, Branch 9, or about five years after
respondent contracted his second marriage. The annulment of
respondents second marriage has no bearing to the instant
disbarment proceeding. Firstly, as earlier emphasized, the
annulment came after the respondents second bigamous
marriage. Secondly, as we held in In re: Almacen, a
disbarment case is sui generis for it is neither purely civil nor
purely criminal but is rather an investigation by the court into
the conduct of its officers. Thus, if the acquittal of a lawyer in a
criminal action is not determinative of an administrative case
against him, or if an affidavit of withdrawal of a disbarment
case does not affect its course, then neither will the judgment
of annulment of respondents second marriage also exonerate
him from a wrongdoing actually committed. So long as the
quantum of proof - clear preponderance of evidence - in
disciplinary proceedings against members of the Bar is met,
then liability attaches.
Section 27, Rule 138 of the Rules of Court cites grossly
immoral conduct as a ground for disbarment.
The Court has laid down with a common definition of what
constitutes immoral conduct, vis--vis, grossly immoral conduct.
Immoral conduct is that conduct which is willful, flagrant, or
shameless, and which shows a moral indifference to the
opinion of the good and respectable members of the
community and what is grossly immoral, that is, it must be so
corrupt and false as to constitute a criminal act or so
unprincipled as to be reprehensible to a high degree.
Undoubtedly, respondents act constitutes immoral conduct.
But is it so gross as to warrant his disbarment? Indeed, he
exhibited a deplorable lack of that degree of morality required
of him as a member of the Bar. In particular, he made a
mockery of marriage which is a sacred institution demanding
respect and dignity. His act of contracting a second marriage
while the first marriage was still in place, is contrary to honesty,
justice, decency and morality.
However, measured against the definition, we are not prepared
to consider respondents act as grossly immoral. This finds
support in the following recommendation and observation of
the IBP Investigator and IBP Board of Governors, thus:
The uncontested assertions of the respondent belies any
intention to flaunt the law and the high moral standard of the
legal profession, to wit:
a. After his first failed marriage and prior to his second
marriage or for a period of almost seven (7) years, he has not
been romantically involved with any woman;
b. His second marriage was a show of his noble intentions and
total love for his wife, whom he described to be very intelligent
person;
c. He never absconded from his obligations to support his wife
and child;
d. He never disclaimed paternity over the child and husbandry
(sic) with relation to his wife;
e. After the annulment of his second marriage, they have
parted ways when the mother and child went to Australia;
f. Since then up to now, respondent remained celibate.
In the case of Terre v. Terre, respondent was disbarred
because his moral character was deeply flawed as shown by
the following circumstances, viz: he convinced the complainant
that her prior marriage to Bercenilla was null and void ab initio
and that she was legally single and free to marry him. When
complainant and respondent had contracted their marriage,
respondent went through law school while being supported by
complainant, with some assistance from respondents parents.
After respondent had finished his law course and gotten
complainant pregnant, respondent abandoned the complainant
without support and without the wherewithal for delivering his
own child safely to a hospital.
In the case of Cojuangco, Jr. v. Palma, respondent was also
disbarred for his grossly immoral acts such as: first, he
abandoned his lawful wife and three children; second, he lured
an innocent young woman into marrying him; third, he
mispresented himself as a bachelor so he could contract
marriage in a foreign land; and fourth, he availed himself of
complainants resources by securing a plane ticket from
complainants office in order to marry the latters daughter. He
did this without complainants knowledge. Afterwards, he even
had the temerity to assure complainant that everything is legal.
Such acts are wanting in the case at bar. In fact, no less than
the respondent himself acknowledged and declared his abject
apology for his misstep. He was humble enough to offer no
defense save for his love and declaration of his commitment to
his wife and child.
Based on the reasons stated above, we find the imposition of
disbarment upon him to be unduly harsh. The power to disbar
must be exercised with great caution, and may be imposed
only in a clear case of misconduct that seriously affects the
standing and character of the lawyer as an officer of the Court.
Disbarment should never be decreed where any lesser penalty
could accomplish the end desired. In line with this philosophy,
we find that a penalty of two years suspension is more
appropriate. The penalty of one (1) year suspension
recommended by the IBP is too light and not commensurate to
the act committed by respondent.
6

As to the charge of misconduct for having notarized several
documents during the years 1988-1997 after his commission
as notary public had expired, respondent humbly admitted
having notarized certain documents despite his knowledge that
he no longer had authority to do so. He, however, alleged that
he received no payment in notarizing said documents.
Let copies of this Decision be furnished all the courts of the
land through the Court Administrator, as well as the IBP, the
Office of the Bar Confidant, and recorded in the personal
records of the respondent.
SO ORDERED.

It has been emphatically stressed that notarization is not an

empty, meaningless, routinary act. On the contrary, it is
invested with substantive public interest, such that only those
who are qualified or authorized may act as notaries public.
Notarization of a private document converts the document into
a public one making it admissible in court without further proof
of its authenticity. A notarial document is by law entitled to full
faith and credit upon its face and, for this reason, notaries
public must observe with the utmost care the basic
requirements in the performance of their duties. Otherwise, the
confidence of the public in the integrity of this form of
conveyance would be undermined.

The requirements for the issuance of a commission as notary

public must not be treated as a mere casual formality. The
Court has characterized a lawyers act of notarizing documents
without the requisite commission to do so as reprehensible,
constituting as it does not only malpractice but also x x x the
crime of falsification of public documents.

The Court had occasion to state that where the notarization of

a document is done by a member of the Philippine Bar at a
time when he has no authorization or commission to do so, the
offender may be subjected to disciplinary action or one,
performing a notarial act without such commission is a violation
of the lawyers oath to obey the laws, more specifically, the
Notarial Law. Then, too, by making it appear that he is duly
commissioned when he is not, he is, for all legal intents and
purposes, indulging in deliberate falsehood, which the lawyers
oath similarly proscribes. These violations fall squarely within
the prohibition of Rule 1.01 of Canon 1 of the Code of
Professional Responsibility, which provides: A lawyer shall not EN BANC
engage in unlawful, dishonest, immoral or deceitful conduct. By
acting as a notary public without the proper commission to do MAELOTISEA S. GARRIDO,
so, the lawyer likewise violates Canon 7 of the same Code,
Complainant,
which directs every lawyer to uphold at all times the integrity
and dignity of the legal profession. - versus -
In the case of Buensuceso v. Barera, a lawyer was suspended ATTYS. ANGEL E. GARRIDO and ROMANA P. VALENCIA,
for one year when he notarized five documents after his
commission as Notary Public had expired, to wit: a complaint Respondents.
for ejectment, affidavit, supplemental affidavit, a deed of sale,
and a contract to sell. Guided by the pronouncement in said A.C. No. 6593
case, we find that a suspension of two (2) years is justified
DECISION
under the circumstances. Herein respondent notarized a total
of fourteen (14) documents without the requisite notarial PER CURIAM:
commission.
Maelotisea Sipin Garrido filed a complaint-affidavit and a
Other charges constituting respondents misconduct such as supplemental affidavit for disbarment against the respondents
the pending criminal case for child abuse allegedly committed Atty. Angel E. Garrido (Atty. Garrido) and Atty. Romana
by him against a high school student filed before the P.Valencia (Atty. Valencia) before the Integrated Bar of the
Prosecutors Office of Baguio City; the pending administrative Philippines (IBP) Committee on Discipline charging them with
case filed by the Teachers, Staff, Students and Parents before gross immorality. The complaint-affidavit states:
an Investigating Board created by SLU; and the pending labor
case filed by SLU-LHS Faculty before the NLRC, Cordillera 1. That I am the legal wife of Atty. Angel E. Garrido by virtue
Administrative Region, on alleged illegal deduction of salary by of our marriage on June 23, 1962 at San Marcelino Church,
respondent, need not be discussed, as they are still pending Ermita, Manila which was solemnized by Msgr. Daniel Cortes x
before the proper forums. At such stages, the presumption of xx
innocence still prevails in favor of the respondent.
2. That our marriage blossomed into having us blessed with
WHEREFORE, finding respondent Atty. Rolando Dela Cruz six (6) children, namely, Mat Elizabeth, Arnel Angelito,
guilty of immoral conduct, in disregard of the Code of Madeleine Eloiza, Arnel Angelo, Arnel Victorino and Madonna
Professional Responsibility, he is hereby SUSPENDED from Angeline, all surnamed Garrido;
the practice of law for a period of two (2) years, and another
two (2) years for notarizing documents despite the expiration of 3. xxxx
his commission or a total of four (4) years of suspension.
7
4. That on May, 1991, during my light moments with our
children, one of my daughters, Madeleine confided to me that
sometime on the later part of 1987, an unknown caller talked
with her claiming that the former is a child of my husband. I
ignored it and dismissed it as a mere joke. But when May
Elizabeth, also one of my daughters told me that sometime on
August 1990, she saw my husband strolling at the Robinsons
Department Store at Ermita, Manila together with a woman and
a child who was later identified as Atty. Ramona Paguida
Valencia and Angeli Ramona Valencia Garrido, respectively x
xx
5. xxxx
6. That I did not stop from unearthing the truth until I was
able to secure the Certificate of Live Birth of the child, stating
among others that the said child is their daughter and that Atty.
Angel Escobar Garrido and Atty. Romana Paguida Valencia
were married at Hongkong sometime on 1978.
7. That on June 1993, my husband left our conjugal home
and joined Atty. Ramona Paguida Valencia at their residence x
xx
8. That since he left our conjugal home he failed and still
failing to give us our needed financial support to the prejudice
of our children who stopped schooling because of financial
constraints.
xxxx
That I am also filing a disbarment proceedings against his
mistress as alleged in the same affidavit, Atty. Romana P.
Valencia considering that out of their immoral acts I suffered
not only mental anguish but also besmirch reputation,
wounded feelings and sleepless nights; x x x
In his Counter-Affidavit, Atty. Garrido denied Maelotiseas
charges and imputations. By way of defense, he alleged that
Maelotisea was not his legal wife, as he was already married to
Constancia David (Constancia) when he married Maelotisea.
He claimed he married Maelotisea after he and Constancia
parted ways. He further alleged that Maelotisea knew all his
escapades and understood his bad boy image before she
married him in 1962. As he and Maelotisea grew apart over the
years due to financial problems, Atty. Garrido met Atty.
Valencia. He became close to Atty. Valencia to whom he
confided his difficulties. Together, they resolved his personal
problems and his financial difficulties with his second family.
Atty. Garrido denied that he failed to give financial support to
his children with Maelotisea, emphasizing that all his six (6)
children were educated in private schools; all graduated from
college except for Arnel Victorino, who finished a special
secondary course.[4] Atty. Garrido alleged that Maelotisea had
not been employed and had not practiced her profession for
the past ten (10) years.
Atty. Garrido emphasized that all his marriages were
contracted before he became a member of the bar on May 11,
1979, with the third marriage contracted after the death of
Constancia on December 26, 1977. Likewise, his children with
Maelotisea were born before he became a lawyer.
In her Counter-Affidavit, Atty. Valencia denied that she was the
mistress of Atty. Garrido. She explained that Maelotisea was
not the legal wife of Atty. Garrido since the marriage between
them was void from the beginning due to the then existing
marriage of Atty. Garrido with Constancia. Atty. Valencia
claimed that Maelotisea knew of the romantic relationship
between her and Atty. Garrido, as they (Maelotisea and Atty.
Valencia) met in 1978. Maelotisea kept silent about her
relationship with Atty. Garrido and had maintained this silence
when she (Atty. Valencia) financially helped Atty. Garrido build
a house for his second family. Atty. Valencia alleged that
Maelotisea was not a proper party to this suit because of her
silence; she kept silent when things were favorable and
beneficial to her. Atty. Valencia also alleged that Maelotisea
had no cause of action against her.
In the course of the hearings, the parties filed the following
motions before the IBP Commission on Bar Discipline:
First, the respondents filed a Motion for Suspension of
Proceedings[6] in view of the criminal complaint for
concubinage Maelotisea filed against them, and the Petition for
Declaration of Nullity (of marriage) Atty. Garrido filed to nullify
his marriage to Maelotisea. The IBP Commission on Bar
Discipline denied this motion for lack of merit.
Second, the respondents filed a Motion to Dismiss the
complaints after the Regional Trial Court of Quezon City
declared the marriage between Atty. Garrido and Maelotisea
an absolute nullity. Since Maelotisea was never the legal wife
of Atty. Garrido, the respondents argued that she had no
personality to file her complaints against them. The
respondents also alleged that they had not committed any
immoral act since they married when Atty. Garrido was already
a widower, and the acts complained of were committed before
his admission to the bar. The IBP Commission on Bar
Discipline also denied this motion.
Third, Maelotisea filed a motion for the dismissal of the
complaints she filed against the respondents, arguing that she
wanted to maintain friendly relations with Atty. Garrido, who is
the father of her six (6) children. The IBP Commission on Bar
Discipline likewise denied this motion.
On April 13, 2004, Investigating Commissioner Milagros V. San
Juan (Investigating Commissioner San Juan) submitted her
Report and Recommendation for the respondents
disbarment.[12] The Commission on Bar Discipline of the IBP
Board of Governors (IBP Board of Governors) approved and
adopted this recommendation with modification under
Resolution No. XVI-2004-375 dated July 30, 2004. This
resolution in part states:
x x x finding the recommendation fully supported by the
evidence on record and the applicable laws and rules, and
considering that Atty. Garrido exhibited conduct which lacks
the degree of morality required as members of the bar, Atty.
Angel E. Garrido is hereby DISBARRED for gross immorality.
However, the case against Atty. Romana P. Valencia is hereby
DISMISSED for lack of merit of the complaint.
Atty. Garrido moved to reconsider this resolution, but the IBP
Commission on Bar Discipline denied his motion under
Resolution No. XVII-2007-038 dated January 18, 2007.
Atty. Garrido now seeks relief with this Court through the
present petition for review. He submits that under the
circumstances, he did not commit any gross immorality that
would warrant his disbarment. He also argues that the offenses
charged have prescribed under the IBP rules.
Additionally, Atty. Garrido pleads that he be allowed on
humanitarian considerations to retain his profession; he is
already in the twilight of his life, and has kept his promise to
lead an upright and irreproachable life notwithstanding his
situation.
In compliance with our Resolution dated August 25, 2009, Atty.
Alicia A. Risos-Vidal (Atty. Risos-Vidal), Director of the
Commission on Bar Discipline, filed her Comment on the
petition. She recommends a modification of the penalty from
disbarment to reprimand, advancing the view that disbarment
is very harsh considering that the 77-year old Atty. Garrido
took responsibility for his acts and tried to mend his ways by
filing a petition for declaration of nullity of his bigamous
8
marriage. Atty. Risos-Vidal also notes that no other
administrative case has ever been filed against Atty. Garrido.
THE COURTS RULING
After due consideration, we resolve to adopt the findings of the
IBP Board of Governors against Atty. Garrido, and to reject its
recommendation with respect to Atty. Valencia.
General Considerations
Laws dealing with double jeopardy or with procedure such as
the verification of pleadings and prejudicial questions, or in this
case, prescription of offenses or the filing of affidavits of
desistance by the complainant do not apply in the
determination of a lawyers qualifications and fitness for
membership in the Bar.[13] We have so ruled in the past and
we see no reason to depart from this ruling.[14] First,
admission to the practice of law is a component of the
administration of justice and is a matter of public interest
because it involves service to the public.[15] The admission
qualifications are also qualifications for the continued
enjoyment of the privilege to practice law. Second, lack of
qualifications or the violation of the standards for the practice
of law, like criminal cases, is a matter of public concern that the
State may inquire into through this Court. In this sense, the
complainant in a disbarment case is not a direct party whose
interest in the outcome of the charge is wholly his or her
own;[16] effectively, his or her participation is that of a witness
who brought the matter to the attention of the Court.
As applied to the present case, the time that elapsed between
the immoral acts charged and the filing of the complaint is not
material in considering the qualification of Atty. Garrido when
he applied for admission to the practice of law, and his
continuing qualification to be a member of the legal profession.
From this perspective, it is not important that the acts
complained of were committed before Atty. Garrido was
admitted to the practice of law. As we explained in Zaguirre v.
Castillo, the possession of good moral character is both a
condition precedent and a continuing requirement to warrant
admission to the bar and to retain membership in the legal
profession. Admission to the bar does not preclude a
subsequent judicial inquiry, upon proper complaint, into any
question concerning the mental or moral fitness of the
respondent before he became a lawyer. Admission to the
practice only creates the rebuttable presumption that the
applicant has all the qualifications to become a lawyer; this
may be refuted by clear and convincing evidence to the
contrary even after admission to the Bar.
Parenthetically, Article VIII Section 5(5) of the Constitution
recognizes the disciplinary authority of the Court over the
members of the Bar to be merely incidental to the Court's
exclusive power to admit applicants to the practice of law.
Reinforcing the implementation of this constitutional authority is
Section 27, Rule 138 of the Rules of Court which expressly
states that a member of the bar may be disbarred or
suspended from his office as attorney by the Supreme Court
for, among others, any deceit, grossly immoral conduct, or
violation of the oath that he is required to take before
admission to the practice of law.
In light of the public service character of the practice of law and
the nature of disbarment proceedings as a public interest
concern, Maelotiseas affidavit of desistance cannot have the
effect of discontinuing or abating the disbarment proceedings.
As we have stated, Maelotisea is more of a witness than a
complainant in these proceedings. We note further that she
filed her affidavits of withdrawal only after she had presented
her evidence; her evidence are now available for the Courts
examination and consideration, and their merits are not
affected by her desistance. We cannot fail to note, too, that
Mealotisea filed her affidavit of desistance, not to disown or
refute the evidence she had submitted, but solely because of
compassion (and, impliedly, out of concern for her personal
financial interest in continuing friendly relations with Atty.
Garrido).
Immoral conduct involves acts that are willful, flagrant, or
shameless, and that show a moral indifference to the opinion
of the upright and respectable members of the community.[20]
Immoral conduct is gross when it is so corrupt as to constitute
a criminal act, or so unprincipled as to be reprehensible to a
high degree, or when committed under such scandalous or
revolting circumstances as to shock the communitys sense of
decency. We make these distinctions as the supreme penalty
of disbarment arising from conduct requires grossly immoral,
not simply immoral, conduct.
In several cases, we applied the above standard in considering
lawyers who contracted an unlawful second marriage or
multiple marriages.
In Macarrubo v. Macarrubo, the respondent lawyer entered
into multiple marriages and subsequently used legal remedies
to sever them. We ruled that the respondents pattern of
misconduct undermined the institutions of marriage and family
institutions that this society looks up to for the rearing of our
children, for the development of values essential to the survival
and well-being of our communities, and for the strengthening of
our nation as a whole. In this light, no fate other than
disbarment awaited the wayward respondent.
In Villasanta v. Peralta, the respondent lawyer married the
complainant while his marriage with his first wife was
subsisting. We held that the respondents act of contracting the
second marriage was contrary to honesty, justice, decency and
morality. The lack of good moral character required by the
Rules of Court disqualified the respondent from admission to
the Bar.
Similar to Villasanta was the case of Conjuangco, Jr. v.
Palma,[25] where the respondent secretly contracted a second
marriage with the daughter of his client in Hongkong. We found
that the respondent exhibited a deplorable lack of that degree
of morality required of members of the Bar. In particular, he
made a mockery of marriage a sacred institution that demands
respect and dignity. We also declared his act of contracting a
second marriage contrary to honesty, justice, decency and
morality.
In this case, the undisputed facts gathered from the evidence
and the admissions of Atty. Garrido established a pattern of
gross immoral conduct that warrants his disbarment. His
conduct was not only corrupt or unprincipled; it was
reprehensible to the highest degree.
First, Atty. Garrido admitted that he left Constancia to pursue
his law studies; thereafter and during the marriage, he had
romantic relationships with other women. He had the gall to
represent to this Court that the study of law was his reason for
leaving his wife; marriage and the study of law are not mutually
exclusive.
Second, he misrepresented himself to Maelotisea as a
bachelor, when in truth he was already married to
Constancia.[26] This was a misrepresentation given as an
excuse to lure a woman into a prohibited relationship.
Third, Atty. Garrido contracted his second marriage with
Maelotisea notwithstanding the subsistence of his first
marriage. This was an open admission, not only of an illegal
liaison, but of the commission of a crime.
Fourth, Atty. Garrido engaged in an extra-marital affair with
Atty. Valencia while his two marriages were in place and
9
without taking into consideration the moral and emotional
implications of his actions on the two women he took as wives
and on his six (6) children by his second marriage.
Fifth, instead of making legal amends to validate his marriage
with Maelotisea upon the death of Constancia, Atty. Garrido
married Atty. Valencia who bore him a daughter.
Sixth, Atty. Garrido misused his legal knowledge and
convinced Atty. Valencia (who was not then a lawyer) that he
was free to marry, considering that his marriage with
Maelotisea was not valid.
Seventh, as the evidence on record implies, Atty. Garrido
married Atty. Valencia in Hongkong in an apparent attempt to
accord legitimacy to a union entered into while another
marriage was in place.
Eighth, after admission to the practice of law, Atty. Garrido
simultaneously cohabited and had sexual relations with two (2)
women who at one point were both his wedded wives. He also
led a double life with two (2) families for a period of more than
ten (10) years.
Lastly, Atty. Garrido petitioned for the nullity of his marriage to
Maelotisea. Contrary to the position advanced by Atty. Alicia A.
Risos-Vidal, this was not an act of facing up to his
responsibility or an act of mending his ways. This was an
attempt, using his legal knowledge, to escape liability for his
past actions by having his second marriage declared void after
the present complaint was filed against him.
By his actions, Garrido committed multiple violations relating
to the legal profession, specifically, violations of the bar
admission rules, of his lawyers oath, and of the ethical rules of
the profession.
He did not possess the good moral character required of a
lawyer at the time of his admission to the Bar. As a lawyer, he
violated his lawyers oath, Section 20(a) of Rule 138 of the
Rules of Court, and Canon 1 of the Code of Professional
Responsibility,[30] all of which commonly require him to obey
the laws of the land. In marrying Maelotisea, he committed the
crime of bigamy, as he entered this second marriage while his
first marriage with Constancia was subsisting. He openly
admitted his bigamy when he filed his petition to nullify his
marriage to Maelotisea.
He violated ethical rules of the profession, specifically, Rule
1.01 of the Code of Professional Responsibility, which
commands that he shall not engage in unlawful, dishonest,
immoral or deceitful conduct; Canon 7 of the same Code,
which demands that [a] lawyer shall at all times uphold the
integrity and dignity of the legal profession; Rule 7.03 of the
Code of Professional Responsibility, which provides that, [a]
lawyer shall not engage in conduct that adversely reflects on
his fitness to practice law, nor should he, whether in public or
private life, behave in a scandalous manner to the discredit of
the legal profession.
As a lawyer, his community looked up to Atty. Garrido with the
expectation and that he would set a good example in
promoting obedience to the Constitution and the laws. When
he violated the law and distorted it to cater to his own personal
needs and selfish motives, he discredited the legal profession
and created the public impression that laws are mere tools of
convenience that can be used, bended and abused to satisfy
personal whims and desires. In this case, he also used the law
to free him from unwanted relationships.
The Court has often reminded the members of the bar to live
up to the standards and norms expected of the legal profession
by upholding the ideals and principles embodied in the Code of
Professional Responsibility.[31] Lawyers are bound to maintain
not only a high standard of legal proficiency, but also of
morality, including honesty, integrity and fair dealing.[32]
Lawyers are at all times subject to the watchful public eye and
community approbation.[33] Needless to state, those whose
conduct both public and private fail this scrutiny have to be
disciplined and, after appropriate proceedings, accordingly
penalized.
Atty. Valencia
We agree with the findings of Investigating Commissioner San
Juan that Atty. Valencia should be administratively liable under
the circumstances for gross immorality:
x x x The contention of respondent that they were not yet
lawyers in March 27, 1978 when they got married shall not
afford them exemption from sanctions, for good moral
character is required as a condition precedent to admission to
the Bar. Likewise there is no distinction whether the
misconduct was committed in the lawyers professional
capacity or in his private life. Again, the claim that his marriage
to complainant was void ab initio shall not relieve respondents
from responsibility x x x Although the second marriage of the
respondent was subsequently declared null and void the fact
remains that respondents exhibited conduct which lacks that
degree of morality required of them as members of the Bar.
Moral character is not a subjective term but one that
corresponds to objective reality. To have good moral character,
a person must have the personal characteristics of being good.
It is not enough that he or she has a good reputation, i.e., the
opinion generally entertained about a person or the estimate in
which he or she is held by the public in the place where she is
known. The requirement of good moral character has four
general purposes, namely: (1) to protect the public; (2) to
protect the public image of lawyers; (3) to protect prospective
clients; and (4) to protect errant lawyers from themselves.
Each purpose is as important as the other.
Under the circumstances, we cannot overlook that prior to
becoming a lawyer, Atty. Valencia already knew that Atty.
Garrido was a married man (either to Constancia or to
Maelotisea), and that he already had a family. As Atty.
Garridos admitted confidante, she was under the moral duty to
give him proper advice; instead, she entered into a romantic
relationship with him for about six (6) years during the
subsistence of his two marriages. In 1978, she married Atty.
Garrido with the knowledge that he had an outstanding second
marriage. These circumstances, to our mind, support the
conclusion that she lacked good moral character; even without
being a lawyer, a person possessed of high moral values,
whose confidential advice was sought by another with respect
to the latters family problems, would not aggravate the
situation by entering into a romantic liaison with the person
seeking advice, thereby effectively alienating the other persons
feelings and affection from his wife and family.
While Atty. Valencia contends that Atty. Garridos marriage with
Maelotisea was null and void, the fact remains that he took a
man away from a woman who bore him six (6) children.
Ordinary decency would have required her to ward off Atty.
Garridos advances, as he was a married man, in fact a twice-
married man with both marriages subsisting at that time; she
should have said no to Atty. Garrido from the very start.
Instead, she continued her liaison with Atty. Garrido, driving
him, upon the death of Constancia, away from legitimizing his
relationship with Maelotisea and their children. Worse than
this, because of Atty. Valencias presence and willingness, Atty.
Garrido even left his second family and six children for a third
marriage with her. This scenario smacks of immorality even if
viewed outside of the prism of law.
We are not unmindful of Atty. Valencias expressed belief that
Atty. Garridos second marriage to Maelotisea was invalid;
hence, she felt free to marry Atty. Garrido. While this may be
10

correct in the strict legal sense and was later on confirmed by
the declaration of the nullity of Atty. Garridos marriage to
Maelotisea, we do not believe at all in the honesty of this
expressed belief.
The records show that Atty. Valencia consented to be married
in Hongkong, not within the country. Given that this marriage
transpired before the declaration of the nullity of Atty. Garridos
second marriage, we can only call this Hongkong marriage a
clandestine marriage, contrary to the Filipino tradition of
celebrating a marriage together with family. Despite Atty.
Valencias claim that she agreed to marry Atty. Garrido only
after he showed her proof of his capacity to enter into a
subsequent valid marriage, the celebration of their marriage in
Hongkong leads us to the opposite conclusion; they wanted to
marry in Hongkong for the added security of avoiding any
charge of bigamy by entering into the subsequent marriage
outside Philippine jurisdiction. In this regard, we cannot help
but note that Atty. Valencia afterwards opted to retain and use
her surname instead of using the surname of her husband.
Atty. Valencia, too, did not appear to mind that her husband did
not live and cohabit with her under one roof, but with his
second wife and the family of this marriage. Apparently, Atty.
Valencia did not mind at all sharing her husband with another
woman. This, to us, is a clear demonstration of Atty. Valencias
perverse sense of moral values.
Measured against the definition of gross immorality, we find
Atty. Valencias actions grossly immoral. Her actions were so
corrupt as to approximate a criminal act, for she married a man
who, in all appearances, was married to another and with
whom he has a family. Her actions were also unprincipled and
reprehensible to a high degree; as the confidante of Atty.
Garrido, she preyed on his vulnerability and engaged in a
romantic relationship with him during the subsistence of his two
previous marriages. As already mentioned, Atty. Valencias
conduct could not but be scandalous and revolting to the point
of shocking the communitys sense of decency; while she
professed to be the lawfully wedded wife, she helped the
second family build a house prior to her marriage to Atty.
Garrido, and did not object to sharing her husband with the
woman of his second marriage.
parties pattern of grave and immoral misconduct that
demonstrates their lack of mental and emotional fitness and
moral character to qualify them for the responsibilities and
duties imposed on lawyers as professionals and as officers of
the court.
While we are keenly aware of Atty. Garridos plea for
compassion and his act of supporting his children with
Maelotisea after their separation, we cannot grant his plea. The
extent of his demonstrated violations of his oath, the Rules of
Court and of the Code of Professional Responsibility overrides
what under other circumstances are commendable traits of
character.
In like manner, Atty. Valencias behavior over a long period of
time unequivocally demonstrates a basic and serious flaw in
her character, which we cannot simply brush aside without
undermining the dignity of the legal profession and without
placing the integrity of the administration of justice into
question. She was not an on-looker victimized by the
circumstances, but a willing and knowing full participant in a
love triangle whose incidents crossed into the illicit.
WHEREFORE, premises considered, the Court resolves to:
(1) DISBAR Atty. Angel E. Garrido from the practice of law for
gross immorality, violation of the Lawyers Oath; and violation
of Rule 1.01, Canon 7 and Rule 7.03 of the Code of
Professional Responsibility; and
(2) DISBAR Atty. Romana P. Valencia from the practice of law
for gross immorality, violation of Canon 7 and Rule 7.03 of the
Code of Professional Responsibility.
Let a copy of this Decision be attached to the personal records
of Atty. Angel E. Garrido and Atty. Romana P. Valencia in the
Office of the Bar Confidant, and another copy furnished the
Integrated Bar of the Philippines.
The Clerk of Court is directed to strike out the names of Angel
E. Garrido and Rowena P. Valencia from the Roll of Attorneys.
SO ORDERED.

We find that Atty. Valencia violated Canon 7 and Rule 7.03 of

the Code of Professional Responsibility, as her behavior
demeaned the dignity of and discredited the legal profession.
She simply failed in her duty as a lawyer to adhere
unwaveringly to the highest standards of morality.[40] In
Barrientos v. Daarol,[41] we held that lawyers, as officers of
the court, must not only be of good moral character but must
also be seen to be of good moral character and must lead lives
in accordance with the highest moral standards of the
community. Atty. Valencia failed to live up to these standards
before she was admitted to the bar and after she became a
member of the legal profession.

Conclusion

Membership in the Bar is a privilege burdened with conditions.

As a privilege bestowed by law through the Supreme Court,
membership in the Bar can be withdrawn where circumstances
concretely show the lawyers lack of the essential qualifications
required of lawyers. We resolve to withdraw this privilege from
Atty. Angel E. Garrido and Atty. Rowena P. Valencia for this
reason.

In imposing the penalty of disbarment upon the respondents,

we are aware that the power to disbar is one to be exercised
with great caution and only in clear cases of misconduct that
seriously affects the standing and character of the lawyer as a
legal professional and as an officer of the Court.

We are convinced from the totality of the evidence on hand

that the present case is one of them. The records show the
11
EN BANC
PACITA CAALIM-VERZONILLA,
Complainant,
- versus -
ATTY. VICTORIANO G. PASCUA, Respondent.
A.C. No. 6655, October 11, 2011
DECISION
VILLARAMA, JR., J.:
Before the Court is the verified affidavit-complaint[1] of Pacita
Caalim-Verzonilla seeking the disbarment of respondent Atty.
Victoriano G. Pascua for allegedly falsifying a public document
and evading the payment of correct taxes through the use of
falsified documents.
Complainant alleges that on September 15, 2001, respondent
prepared and notarized two Deeds of Extra-Judicial Settlement
of the Estate of Deceased Lope Caalim with Sale. The first
deed[2] was for a consideration of P250,000 and appears to
have been executed and signed by Lopes surviving spouse,
Caridad Tabarrejos, and her children (complainant, Virginia
Caalim-Inong and Marivinia Caalim) in favor of spouses Madki
and Shirley Mipanga. The second deed[3]was for a
consideration of P1,000,000 and appears to have been
executed by and for the benefit of the same parties as the first
deed. The two deeds have identical registration numbers, page
numbers and book numbers in the notarial portion.
Complainant avers that both deeds are spurious because all
the heirs signatures were falsified. She contends that her sister
Marivinia does not know how to sign her name and was
confined at the Cagayan Valley Medical Center, Tuguegarao
City, at the time the deeds were allegedly signed by her, as
shown by a certification[4]from said hospital. The certification,
dated February 6, 2004 and signed by Dr. Alice Anghad,
Medical Officer IV, attested that Marivinia has been confined at
the Psychiatry Ward of the Cagayan Valley Medical Center
since May 3, 1999 after being diagnosed of Substance Induced
Psychosis and Schizophrenia, Undifferentiated Type.
Complainant further alleges that the two deeds were not
presented to any of them and they came to know of their
existence only recently. She further claims that the Community
Tax Certificates[5] (CTCs) in her name and in the names of her
mother and her sister Marivinia were procured only by the
vendee Shirley and not by them. Complainant submits the
affidavit[6] executed by Edwin Gawayon, Barangay Treasurer
of C-8, Claveria, Cagayan, on August 3, 2002, attesting that
the CTCs were procured at the instance of Shirley and were
paid without the complainant and her co-heirs personally
appearing before him. Gawayon stated that the signatures and
thumbmarks appearing on the CTCs are not genuine and
authentic because it can be seen with the naked eyes that the
signatures are similar in all three CTCs.
Lastly, complainant alleges that the two deeds were used by
respondent and Shirley to annul a previously simulated deed of
sale[7] dated June 20, 1979 purportedly executed by Lope in
favor of the spouses Madki and Shirley Mipanga. Said deed
was likewise a complete nullity because at that time Shirley
Mipanga was only sixteen years old and still single.
In his comment,[8] respondent admits having prepared and
notarized the two disputed Deeds of Extra-Judicial Settlement
of the Estate with Sale (subject deeds), but denies any
irregularity in their execution. He claims that the preparation
and notarization of the subject deeds were made under the
following circumstances:
In the morning of September 15, 2001, complainant, Caridad,
Virginia and Shirley Mipanga went to his house and requested
him to prepare a deed of sale of a residential lot located in
Claveria, Cagayan. He was informed by the parties that the
agreed purchase price is P1,000,000 and was presented the
certificate of title to the property. Upon finding that the
registered owner is Lope Caalim, married to Caridad
Tabarrejos and knowing that Lope already died sometime in
the 1980s, he asked for, and was given, the names and
personal circumstances of Lopes surviving children. He asked
where Marivinia was, but Caridad told him that Marivinia
remained home as she was not feeling well. As Caridad
assured him that they will fetch Marivinia after the deed of
conveyance is prepared, he proceeded to ask the parties to
present their CTCs. Caridad and Pacita, however, told him that
they have not secured their CTCs while Virginia forgot to bring
hers. So he instructed them to get CTCs from Claveria.
An hour later, Caridad and Shirley came back with the CTCs of
Caridad, Virginia, complainant and Marivinia. After he finished
typing the deed and the details of the CTCs, Caridad said that
she will bring the deed with her to Claveria for her daughters to
sign. He then told them that it was necessary for him to meet
them all in one place for them to acknowledge the deed before
him as notary public. It was agreed upon that they will all meet
at the house of the Mipangas between 11:00 a.m. and 12:00
noon on that same day.
Respondent arrived at the Mipanga residence shortly before
12:00 noon. There he saw Shirley, Caridad, complainant,
Pacita and Marivinia with two other persons whom he later
learned were the instrumental witnesses to the execution of the
document. Upon being informed that the parties have already
affixed their signatures on the deed, he examined the
document then inquired from the heirs if the signatures
appearing therein were theirs and if they were truly selling the
property for P1,000,000. The heirs answered in the affirmative,
thereby ratifying and acknowledging the instrument and its
contents as their own free and voluntary act and deed. Thus,
he notarized the document and then gave the original and two
carbon copies to Shirley while leaving two in his possession.
Respondent adds that Shirley thereafter asked him what steps
were needed to effect registration of the deed and transfer of
the title in her and her husbands name. He replied that all the
unpaid land taxes should be paid including the capital gains
tax, documentary stamp taxes and estate tax to the Bureau of
Internal Revenue (BIR) which will then issue the necessary
clearance for registration. When asked how much taxes are
payable, he replied that it depends on the assessment of the
BIR examiner which will be based on the zonal value or selling
price stated in the deed of sale. He added that the estate taxes
due, with interests and surcharges, would also have to be paid.
Since the consideration for the sale is P1,000,000, the taxes
payable was quite enormous. Shirley asked him who between
the vendor and the vendee should pay the taxes, and he
replied that under the law, it is the obligation of the vendors to
pay said taxes but it still depends upon the agreement of the
12
parties. He asked if there was already an agreement on the
matter, but the parties replied in the negative.
Shirley then told the vendors that they should shoulder the
payment of taxes. Caridad and her co-vendors, however,
refused and said that a big portion of the P1,000,000 paid to
them was already used by them to pay and settle their other
obligations. Shirley then offered to pay one-half of whatever
amount the BIR will assess, but Caridad insisted that another
document be prepared stating a reduced selling price of only
P250,000 so that they need not contribute to the payment of
taxes since Shirley was anyway already willing to pay one-half
of the taxes based on the selling price stated in the first deed.
This resulted in a heated discussion between the parties,
which was, however, later resolved by an agreement to
execute a second deed. The prospect of preparing an
additional deed, however, irritated respondent as it meant
additional work for him. Thus, respondent went home.
Later, the parties visited respondent at his house and pleaded
with him to prepare the second deed with the reduced selling
price. Moved by his humane and compassionate disposition,
respondent gave in to the parties plea.
In the presence of all the heirs, the vendees and the
instrumental witnesses, respondent prepared and notarized the
second deed providing for the lower consideration of only
P250,000. He used the same document number, page number
and book number in the notarial portion as the first deed
because according to him, the second deed was intended by
the parties to supplant the first.
Respondent denies complainants assertions that the two
deeds are simulated and falsified, averring that as stated
above, all the parties acknowledged the same before him.
Likewise, he and his clients, the spouses Madki and Shirley
Mipanga, presented the subject deeds as exhibits in Civil Case
No. 2761-S also pending before the Regional Trial Court
(RTC), Branch 12, of Sanchez Mira, Cagayan.
As to the allegation that Marivinia did not appear before him as
she was allegedly under confinement at the Cagayan Valley
Medical Center on September 15, 2001, respondent cites a
medical certificate[9]stating that Marivinia was confined in said
hospital from May 3, 1999 to August 10, 1999. He also points
out that Marivinia is one of the plaintiffs in Civil Case No. 2836-
S pending before the RTC, Branch 12, Sanchez Mira,
Cagayan, for the annulment of the subject deeds, and nothing
in the complaint states that she is mentally or physically
incapacitated. Otherwise, her co-plaintiffs would have asked
the appointment of a guardian for her.
By Resolution[10] dated August 10, 2005, this Court referred
the case to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.
In a Report and Recommendation[11] dated May 3, 2007,
Commissioner Jose Roderick F. Fernando found respondent
administratively liable on account of his indispensable
participation in an act designed to defraud the government. He
recommended that respondent be suspended from the practice
of law for three months and that his notarial commission, if still
existing, be revoked and that respondent be prohibited from
being commissioned as a notary public for two years.
According to Commissioner Fernando, respondent did not offer
any tenable defense to justify his actions. As a notary, it was
his responsibility to ensure that the solemnities of the act of
notarization were followed. As a lawyer, it was likewise
incumbent upon him that the document he drafted and
subsequently notarized was neither unlawful nor fraudulent.
Commissioner Fernando ruled that respondent failed on both
counts since he drafted a document that reflected an untruthful
consideration that served to reduce unlawfully the tax due to
the government. Then he completed the act by likewise
notarizing and thus converting the document into a public
document.
On June 26, 2007, the IBP Board of Governors adopted and
approved Commissioner Fernandos report and
recommendation but imposed a higher penalty on respondent.
Its Resolution No. XVII-2007-285 reads:
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
Respondents violation of Notarial Law and for his participation
to a transaction that effectively defrauded the government,
Atty. Victoriano G. Pascua is hereby SUSPENDED from the
practice of law for two (2) years and SUSPENSION of his
Notarial Commission for two (2) years with Warning that a
similar violation in the future will be dealt with severely.[12]
The above resolution is well taken.
By respondents own account of the circumstances surrounding
the execution and notarization of the subject deeds of sale,
there is a clear basis for disciplining him as a member of the
bar and as notary public.
Respondent did not deny preparing and notarizing the subject
deeds. He avers that the true consideration for the transaction
is P1,000,000 as allegedly agreed upon by the parties when
they appeared before him for the preparation of the first
document as well as the notarization thereof. He then claimed
to have been moved by his humane and compassionate
disposition when he acceded to the parties plea that he
prepare and notarize the second deed with a lower
consideration of P250,000 in order to reduce the
corresponding tax liability. However, as noted by
Commissioner Fernando, the two deeds were used by
respondent and his client as evidence in a judicial proceeding
(Civil Case No. 2671-S), which only meant that both
documents still subsist and hence contrary to respondents
contention that the second deed reflecting a lower
consideration was intended to supersede the first deed.
As to the charge of falsification, the Court finds that the
documents annexed to the present complaint are insufficient
for us to conclude that the subject deeds were indeed falsified
and absolutely simulated. We have previously ruled that a
deed of sale that allegedly states a price lower than the true
consideration is nonetheless binding between the parties and
their successors in interest.[13] Complainant, however, firmly
maintains that she and her co-heirs had no participation
whatsoever in the execution of the subject deeds. In any event,
the issues of forgery, simulation and fraud raised by the
complainant in this proceeding apparently are still to be
resolved in the pending suit filed by the complainant and her
co-heirs for annulment of the said documents (Civil Case No.
2836-S).
With his admission that he drafted and notarized another
instrument that did not state the true consideration of the sale
so as to reduce the capital gains and other taxes due on the
transaction, respondent cannot escape liability for making an
untruthful statement in a public document for an unlawful
purpose. As the second deed indicated an amount much lower
than the actual price paid for the property sold, respondent
abetted in depriving the Government of the right to collect the
correct taxes due. His act clearly violated Rule 1.02, Canon 1
of the Code of Professional Responsibility which reads:
13
CANON 1 A LAWYER SHALL UPHOLD THE
CONSTITUTION, OBEY THE LAWS OF THE LAND AND
PROMOTE RESPECT FOR LAW AND LEGAL PROCESSES.
Xxxx
Rule 1.02. A lawyer shall not counsel or abet activities aimed
at defiance of the law or at lessening confidence in the legal
system.
Not only did respondent assist the contracting parties in an
activity aimed at defiance of the law, he likewise displayed lack
of respect for and made a mockery of the solemnity of the oath
in an Acknowledgment. By notarizing such illegal and
fraudulent document, he is entitling it full faith and credit upon
its face, which it obviously does not deserve considering its
nature and purpose.
In Gonzales v. Ramos,[14] we elucidated on how important
and sacrosanct the notarial act is:
By affixing his notarial seal on the instrument, the respondent
converted the Deed of Absolute Sale, from a private document
into a public document. Such act is no empty gesture. The
principal function of a notary public is to authenticate
documents. When a notary public certifies to the due execution
and delivery of a document under his hand and seal, he gives
the document the force of evidence. Indeed, one of the
purposes of requiring documents to be acknowledged before a
notary public, in addition to the solemnity which should
surround the execution and delivery of documents, is to
authorize such documents to be given without further proof of
their execution and delivery. A notarial document is by law
entitled to full faith and credit upon its face. Courts,
administrative agencies and the public at large must be able to
rely upon the acknowledgement executed before a notary
public and appended to a private instrument. Hence, a notary
public must discharge his powers and duties, which are
impressed with public interest, with accuracy and fidelity.[15]
Moreover, while respondents duty as a notary public is
principally to ascertain the identity of the affiant and the
voluntariness of the declaration, it is nevertheless incumbent
upon him to guard against any illegal or immoral arrangement
or at least refrain from being a party to its
consummation.[16]Rule IV, Section 4 of the 2004 Rules on
Notarial Practice in fact proscribes notaries public from
performing any notarial act for transactions similar to the herein
document of sale, to wit:
SEC. 4. Refusal to Notarize. A notary public shall not perform
any notarial act described in these Rules for any person
requesting such an act even if he tenders the appropriate fee
specified by these Rules if:
(a) the notary knows or has good reason to believe that the
notarial act or transaction is unlawful or immoral;
xxxx
In this case, respondent proceeded to notarize the second
deed despite knowledge of its illegal purpose. His purported
desire to accommodate the request of his client will not
absolve respondent who, as a member of the legal profession,
should have stood his ground and not yielded to the
importunings of his clients. Respondent should have been
more prudent and remained steadfast in his solemn oath not to
commit falsehood nor consent to the doing of any.[17] As a
lawyer, respondent is expected at all times to uphold the
integrity and dignity of the legal profession and refrain from any
act or omission which might lessen the trust and confidence
reposed by the public in the integrity of the legal
profession.[18]
Respondent also failed to comply with Section 2, Rule VI of the
2004Rules on Notarial Practice when he gavethe second
document the same document number, page number and book
number as the first:
SEC. 2. Entries in the Notarial Register. x x x
xxxx
(e) The notary public shall give to each instrument or document
executed, sworn to, or acknowledged before him a number
corresponding to the one in his register, and shall also state on
the instrument or document the page/s of his register on which
the same is recorded. No blank line shall be left between
entries.
Xxxx
Respondent admitted having given the second deed the same
document number, page number and book number as in the
first deed, reasoning that the second deed was intended to
supplant and cancel the first deed. He therefore knowingly
violated the above rule, in furtherance of his clients intention of
concealing the actual purchase price so as to avoid paying the
taxes rightly due to the Government.
Even assuming that the second deed was really intended to
reflect the true agreement of the parties and hence
superseding the first deed they had executed, respondent
remains liable under the afore-cited Section 2(e) which
requires that each instrument or document, executed, sworn
to, or acknowledged before the notary public shall be given a
number corresponding to the one in his register. Said rule is
not concerned with the validity or efficacy of the document or
instrument recorded but merely to ensure the accuracy and
integrity of the entries in the notarial register.
A lawyer may be suspended or disbarred for any misconduct
showing any fault or deficiency in his moral character, honesty,
probity or good demeanor.[19] Section 27, Rule 138 of the
Revised Rules of Court provides:
SEC. 27. Disbarment or suspension of attorneys by Supreme
Court, grounds _herefore. A member of the bar may be
disbarred or suspended from his office as attorney by the
Supreme Court for any deceit, malpractice, or other gross
misconduct in such office, grossly immoral conduct, or by
reason of his conviction of a crime involving moral turpitude, of
for any violation of the oath which he is required to take before
admission to practice, or for a willful disobedience appearing
as an attorney for a party to a case without authority so to do.
The practice of soliciting cases at law for the purpose of gain,
either personally or through paid agents or brokers, constitutes
malpractice.
Xxxx
In Gonzales, the notary public who notarized the document
despite the non-appearance of one of the signatories was
meted the penalties of revocation of his notarial commission
and disqualification from re-appointment for two years. The
notary in Gonzales was likewise suspended from the practice
of law for one year. Said penalty was in accord with the cases
of Bon v. Ziga,[20]Serzo v. Flores,[21]Zaballero v.
Montalvan[22] and Tabas v. Mangibin.[23] The Court found
that by notarizing the questioned deed, the respondent in
Gonzales engaged in unlawful, dishonest, immoral or deceitful
conduct.[24]
In the instant case, we hold that respondent should similarly be
meted the penalty of suspension and revocation of his notarial
commission for having violated the 2004 Rules on Notarial
Practice. In line withcurrent jurisprudence, and as
recommended by the IBP Board of Governors, the revocation
14
of his notarial commission and disqualification from re-
appointment as notary public for two years is in order.
With respect, however, to his suspension from the practice of
law, we hold that the one-year suspension imposed in
Gonzales and the other cases is not applicable considering
that respondent not only failed to faithfully comply with the
rules on notarial practice, he also violated his oath when he
prepared and notarized the second deed for the purpose of
avoiding the payment of correct amount of taxes, thus abetting
an activity aimed at defiance of the law. Under these
circumstances, we find the two-year suspension recommended
by the IBP Board of Governors as proper and commensurate
to the infraction committed by respondent.
WHEREFORE, respondent ATTY. VICTORIANO G. PASCUA
is hereby SUSPENDED from the practice of law for a period of
two (2) years. In addition, his present notarial commission, if
any, is hereby REVOKED, and he is DISQUALIFIED from
reappointment as a notary public for a period of two (2) years.
He is further WARNED that any similar act or infraction in the
future shall be dealt with more severely.
Let copies of this Decision be furnished all the courts of the
land through the Office of the Court Administrator, as well as
the Integrated Bar of the Philippines, and the Office of the Bar
Confidant, and recorded in the personal records of the
respondent.
SO ORDERED.
SECOND DIVISION
RODOLFO A. ESPINOSA and MAXIMO A. GLINDO,
Complainants,
- versus -
ATTY. JULIETA A. OMAA,
Respondent.
A.C. No. 9081, October 12, 2011
DECISION
CARPIO, J.:
The Case
Before the Court is a complaint for disbarment filed by Rodolfo
A. Espinosa (Espinosa) and Maximo A. Glindo (Glindo) against
Atty. Julieta A. Omaa (Omaa).
The Antecedent Facts
Complainants Espinosa and Glindo charged Omaa with
violation of her oath as a lawyer, malpractice, and gross
misconduct in office.
Complainants alleged that on 17 November 1997, Espinosa
and his wife Elena Marantal (Marantal) sought Omaas legal
advice on whether they could legally live separately and
dissolve their marriage solemnized on 23 July 1983. Omaa
then prepared a document entitled Kasunduan Ng
Paghihiwalay (contract) which reads:
REPUBLIKA NG PILIPINAS
BAYAN NG GUMACA
LALAWIGAN NG QUEZON
KASUNDUAN NG PAGHIHIWALAY
KAMI, ELENA MARANTAL AT RODOLFO ESPINOSA, mga
Filipino, may sapat na gulang, dating legal na mag-asawa,
kasalukuyang naninirahan at may pahatirang sulat sa Brgy.
Buensoceso, Gumaca, Quezon, at COMELEC, Intramuros,
Manila ayon sa pagkakasunod-sunod, matapos makapanumpa
ng naaayon sa batas ay nagpapatunay ng nagkasundo ng mga
sumusunod:
1. Na nais na naming maghiwalay at magkanya-kanya ng
aming mga buhay ng walang pakialaman, kung kayat bawat
isa sa amin ay maaari ng humanap ng makakasama sa buhay;
2. Na ang aming mga anak na sina Ariel John Espinosa, 14
na taong gulang; Aiza Espinosa, 11 taong gulang at Aldrin
Espinosa, 10 taong gulang ay namili na kung kanino sasama
sa aming dalawa. Si Ariel John at Aiza Espinosa ay sasama sa
kanilang ama, Rodolfo Espinosa, at ang bunso, Aldrin
Espinosa at sasama naman sa ina na si Elena;
3. Na dahil sina Ariel John at Aiza ay nagsisipag-aral sa
kasalukuyan sila ay pansamantalang mananatili sa kanilang
ina, habang tinatapos ang kanilang pag-aaral. Sa pasukan sila
ay maaari ng isama ng ama, sa lugar kung saan siya ay
naninirahan;
4. Na ang mga bata ay maaaring dalawin ng sino man sa
aming dalawa tuwing may pagkakataon;
5. Na magbibigay ng buwanang gastusin o suporta ang
ama kay Aldrin at ang kakulangan sa mga pangangailangan
nito ay pupunan ng ina;
6. Na lahat ng mga kasangkapan sa bahay tulad ng T.V.,
gas stove, mga kagamitan sa kusina ay aking (Rodolfo)
ipinagkakaloob kay Elena at hindi na ako interesado dito
7. Na lahat ng maaaring maipundar ng sino man sa amin
dalawa sa mga panahong darating ay aming mga sari-sariling
pag-aari na at hindi na pinagsamahan o conjugal.
BILANG PATUNAY ng lahat ng ito, nilagdaan namin ito
ngayong ika-17 ng Nobyembre, 1997, dito sa Gumaca,
Quezon.
(Sgd) (Sgd)
ELENA MARANTAL RODOLFO ESPINOSA
Nagkasundo Nagkasundo
PINATUNAYAN AT PINANUMPAAN dito sa harap ko ngayong
ika-17 ng Nobyembre, 1997, dito sa Gumaca, Quezon
15
ATTY. JULIETA A. OMAA
Notary Public
PTR No. 3728169; 1-10-97
Gumaca, Quezon
Doc. No. 482; Page No. 97; Book No. XI; Series of 1997.
Complainants alleged that Marantal and Espinosa, fully
convinced of the validity of the contract dissolving their
marriage, started implementing its terms and conditions.
However, Marantal eventually took custody of all their children
and took possession of most of the property they acquired
during their union.
Espinosa sought the advice of his fellow employee,
complainant Glindo, a law graduate, who informed him that the
contract executed by Omaa was not valid. Espinosa and
Glindo then hired the services of a lawyer to file a complaint
against Omaa before the Integrated Bar of the Philippines
Commission on Bar Discipline (IBP-CBD).
Omaa alleged that she knows Glindo but she does not
personally know Espinosa. She denied that she prepared the
contract. She admitted that Espinosa went to see her and
requested for the notarization of the contract but she told him
that it was illegal. Omaa alleged that Espinosa returned the
next day while she was out of the office and managed to
persuade her part-time office staff to notarize the document.
Her office staff forged her signature and notarized the contract.
Omaa presented Marantals Sinumpaang Salaysay (affidavit) to
support her allegations and to show that the complaint was
instigated by Glindo. Omaa further presented a letter of
apology from her staff, Arlene Dela Pea, acknowledging that
she notarized the document without Omaas knowledge,
consent, and authority.
Espinosa later submitted a Karagdagang Salaysay stating that
Omaa arrived at his residence together with a girl whom he
later recognized as the person who notarized the contract. He
further stated that Omaa was not in her office when the
contract was notarized.
The Decision of the Commission on Bar Discipline
In its Report and Recommendation1 dated 6 February 2007,
the IBP-CBD stated that Espinosas desistance did not put an
end to the proceedings. The IBP-CBD found that Omaa
violated Rule 1.01, Canon 1 of the Code of Professional
Responsibility which provides that a lawyer shall not engage in
unlawful, dishonest, immoral or deceitful conduct. The IBP-
CBD stated that Omaa had failed to exercise due diligence in
the performance of her function as a notary public and to
comply with the requirements of the law. The IBP-CBD noted
the inconsistencies in the defense of Omaa who first claimed
that it was her part-time staff who notarized the contract but
then later claimed that it was her former maid who notarized it.
The IBP-CBD found:
Respondent truly signed the questioned document, yet she still
disclaimed its authorship, thereby revealing much more her
propensity to lie and make deceit, which she is deserving [of]
disciplinary sanction or disbarment.
The IBP-CBD recommended that Omaa be suspended for one
year from the practice of law and for two years as a notary
public.
In a Resolution dated 19 September 2007, the IBP Board of
Governors adopted and approved the recommendation of the
IBP-CBD.
Omaa filed a motion for reconsideration.
In a Resolution dated 26 June 2011, the IBP Board of
Governors denied Omaas motion for reconsideration.
The Issue
The sole issue in this case is whether Omaa violated the
Canon of Professional Responsibility in the notarization of
Marantal and Espinosas Kasunduan Ng Paghihiwalay.
The Ruling of this Court
We adopt the findings and recommendation of the IBP-CBD.
This case is not novel. This Court has ruled that the
extrajudicial dissolution of the conjugal partnership without
judicial approval is void.2 The Court has also ruled that a
notary public should not facilitate the disintegration of a
marriage and the family by encouraging the separation of the
spouses and extrajudicially dissolving the conjugal
partnership,3 which is exactly what Omaa did in this case.
In Selanova v. Judge Mendoza,4 the Court cited a number of
cases where the lawyer was sanctioned for notarizing similar
documents as the contract in this case, such as: notarizing a
document between the spouses which permitted the husband
to take a concubine and allowed the wife to live with another
man, without opposition from each other;5 ratifying a document
entitled Legal Separation where the couple agreed to be
separated from each other mutually and voluntarily, renouncing
their rights and obligations, authorizing each other to remarry,
and renouncing any action that they might have against each
other;6 preparing a document authorizing a married couple
who had been separated for nine years to marry again,
renouncing the right of action which each may have against the
other;7 and preparing a document declaring the conjugal
partnership dissolved.
We cannot accept Omaas allegation that it was her part-time
office staff who notarized the contract. We agree with the IBP-
CBD that Omaa herself notarized the contract. Even if it were
true that it was her part-time staff who notarized the contract, it
only showed Omaas negligence in doing her notarial duties.
We reiterate that a notary public is personally responsible for
the entries in his notarial register and he could not relieve
himself of this responsibility by passing the blame on his
secretaries9 or any member of his staff.
We likewise agree with the IBP-CBD that in preparing and
notarizing a void document, Omaa violated Rule 1.01, Canon 1
of the Code of Professional Responsibility which provides that
[a] lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct. Omaa knew fully well that the Kasunduan Ng
Paghihiwalay has no legal effect and is against public policy.
Therefore, Omaa may be suspended from office as an attorney
for breach of the ethics of the legal profession as embodied in
the Code of Professional Responsibility.10
WHEREFORE, we SUSPEND Atty. Julieta A. Omaa from the
practice of law for ONE YEAR. We REVOKE Atty. Omaas
notarial commission, if still existing, and SUSPEND her as a
notary public for TWO YEARS.
Let a copy of this Decision be attached to Atty. Omaas
personal record in the Office of the Bar Confidant. Let a copy
of this Decision be also furnished to all chapters of the
Integrated Bar of the Philippines and to all courts in the land.
SO ORDERED.
16
SECOND DIVISION
G.R. No. 104599 March 11, 1994
JON DE YSASI III, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION (FOURTH
DIVISION), CEBU CITY, and JON DE YSASI, respondents.
F.B. Santiago, Nalus & Associates for petitioner.
Ismael A. Serfino for private respondent.
REGALADO, J.:
The adage that blood is thicker than water obviously stood for
naught in this case, notwithstanding the vinculum of paternity
and filiation between the parties. It would indeed have been the
better part of reason if herein petitioner and private respondent
had reconciled their differences in an extrajudicial atmosphere
of familial amity and with the grace of reciprocal concessions.
Father and son opted instead for judicial intervention despite
the inevitable acrimony and negative publicity. Albeit with
distaste, the Court cannot proceed elsewise but to resolve their
dispute with the same reasoned detachment accorded any
judicial proceeding before it.
The records of this case reveal that petitioner was employed
by his father, herein private respondent, as farm administrator
of Hacienda Manucao in Hinigaran, Negros Occidental
sometime in April, 1980. Prior thereto, he was successively
employed as sales manager of Triumph International (Phil.),
Inc. and later as operations manager of Top Form
Manufacturing (Phil.), Inc. His employment as farm
administrator was on a fixed salary, with other allowances
covering housing, food, light, power, telephone, gasoline,
medical and dental expenses.
As farm administrator, petitioner was responsible for the
supervision of daily activities and operations of the sugarcane
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.
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, 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, NLRC filed its comment on
17
February 12, 1992 largely reiterating its earlier position in
support of the findings of the Executive Labor Arbiter.
Before proceeding with a discussion of the issues, the
observation of the labor arbiter is worth noting:
This case is truly unique. What makes this case unique is the
fact that because of the special relationship of the parties and
the nature of the action involved, this case could very well go
down (in) the annals of the Commission as perhaps the first of
its kind. For this case is an action filed by an only son, his
father's namesake, the only child and therefore the only heir
against his own father.
Additionally, the Solicitor General remarked:
. . . After an exhaustive reading of the records, two (2)
observations were noted that may justify why this labor case
deserves special considerations. First, most of the complaints
that petitioner and private respondent had with each other,
were personal matters affecting father and son relationship.
And secondly, if any of the complaints pertain to their work,
they allow their personal relationship to come in the way.
I. Petitioner maintains that his dismissal from
employment was illegal because of want of just cause therefor
and non-observance of the requirements of due process. He
also charges the NLRC with grave abuse of discretion in
relying upon the findings of the executive labor arbiter who
decided the case but did not conduct the hearings thereof.
Private respondent, in refutation, avers that there was
abandonment by petitioner of his functions as farm
administrator, thereby arming private respondent with a ground
to terminate his employment at Hacienda Manucao. It is also
contended that it is wrong for petitioner to question the factual
findings of the executive labor arbiter and the NLRC as only
questions of law may be appealed for resolution by this Court.
Furthermore, in seeking the dismissal of the instant petition,
private respondent faults herein petitioner for failure to refer to
the corresponding pages of the transcripts of stenographic
notes, erroneously citing Sections 15(d) and 16(d), Rule 44
(should be Section 16[c] and [d],
Rule 46 and Section 1[g], Rule 50) of the Rules of Court, which
provide that want of page references to the records is a ground
for dismissal of an appeal.
Prefatorily, we take advertence of the provisions of Article 221
of the Labor Code that technical rules of evidence prevailing in
courts of law and equity shall not be controlling, and that every
and all reasonable means to speedily and objectively ascertain
the facts in each case shall be availed of, without regard to
technicalities of law or procedure in the interest of due process.
It is settled that it is not procedurally objectionable for the
decision in a case to be rendered by a judge, or a labor arbiter
for that matter, other than the one who conducted the hearing.
The fact that the judge who heard the case was not the judge
who penned the decision does not impair the validity of the
judgment, 11 provided that he draws up his decision and
resolution with due care and makes certain that they truly and
accurately reflect conclusions and final dispositions on the
bases of the facts of and evidence submitted in the case.
Thus, the mere fact that the case was initially assigned to
Labor Arbiter Ricardo T. Octavio, who conducted the hearings
therein from December 5, 1984 to July 11, 1985, and was later
transferred to Executive Labor Arbiter Oscar S. Uy, who
eventually decided the case, presents no procedural infirmity,
especially considering that there is a presumption of regularity
in the performance of a public officer's functions, which
petitioner has not successfully rebutted.
We are constrained to heed the underlying policy in the Labor
Code relaxing the application of technical rules of procedure in
labor cases in the interest of due process, ever mindful of the
long-standing legal precept that rules of procedure must be
interpreted to help secure, not defeat, justice. For this reason,
we cannot indulge private respondent in his tendency to nitpick
on trivial technicalities to boost his arguments. 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.
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, as even
decisions of administrative agencies which are declared "final"
by law are not exempt from judicial review when so warranted.
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).
18
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.
After evaluating the evidence within the context of the special
circumstances involved and basic human experience,
petitioner's illness and strained family relation with respondent
Jon de Ysasi II may be considered as justifiable reason for
petitioner Jon de Ysasi III's absence from work during the
period of October 1982 to December 1982. In any event, such
absence does not warrant outright dismissal without notice and
hearing.
The elements of abandonment as a ground for dismissal of an
employee are as follows:
(1) failure to report for work or absence without valid or
justifiable reason; and (2) clear intention to sever the 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.
The records show that the parties herein do not dispute the
fact of petitioner's confinement in the hospital for his various
afflictions which required medical treatment. Neither can it be
denied that private respondent was well aware of petitioner's
state of health as the former admittedly shouldered part of the
medical and hospital bills and even advised the latter to stay in
Bacolod City until he was fit to work again. The disagreement
as to whether or not petitioner's ailments were so serious as to
necessitate hospitalization and corresponding periods for
recuperation is beside the point. The fact remains that on
account of said illnesses, the details of which were amply
substantiated by the attending physician, 21 and as the
records are bereft of any suggestion of malingering on the part
of petitioner, there was justifiable cause for petitioner's
absence from work. We repeat, it is clear, deliberate and
unjustified refusal to resume employment and not mere
absence that is required to constitute abandonment as a valid
ground for termination of employment.
With his position as farm administrator of Hacienda Manucao,
petitioner unmistakably may be classified as a managerial
employee 23 to whom the law grants an amount of discretion
in the discharge of his duties. This is why when petitioner
stated that "I assigned myself where I want to go," 24 he was
simply being candid about what he could do within the sphere
of his authority. His duties as farm administrator did not strictly
require him to keep regular hours or to be at the office
premises at all times, or to be subjected to specific control from
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 during
the time that petitioner was in charge of farm operations.
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 the hacienda 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.
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
19
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.
To stress what was earlier mentioned, in order that a finding of
abandonment may justly be made there must be a
concurrence of two elements, viz.: (1) the failure to report for
work or absence without valid or justifiable reason, and (2) a
clear intention to sever the employer-employee relationship,
with the second element as the more determinative factor and
being manifested by some overt acts. Such intent we find
dismally wanting in this case.
It will be recalled that private respondent himself admitted
being unsure of his son's plans of returning to work. The
absence of petitioner from work since mid-1982, prolonged
though it may have been, was not without valid causes of
which private respondent had full knowledge. As to what
convinced or led him to believe that petitioner was no longer
returning to work, private respondent neither explains nor
substantiates by any reasonable basis how he arrived at such
a conclusion.
Moreover, private respondent's claim of abandonment cannot
be given credence as even after January, 1983, when private
respondent supposedly "became convinced" that petitioner
would no longer work at the farm, the latter continued to
perform services directly required by his position as farm
administrator. These are duly and correspondingly evidenced
by such acts as picking up some farm machinery/equipment
from G.A. Machineries, Inc., 28 claiming and paying for
additional farm equipment and machinery shipped by said firm
from Manila to Bacolod through Zip Forwarders, 29 getting the
payment of the additional cash advances for molasses for crop
year 1983-1984 from Agrotex Commodities, Inc., 30 and
remitting to private respondent through
Atty. Sumbingco the sums collected along with receipts for
medicine and oil.
It will be observed that all of these chores, which petitioner
took care of, relate to the normal activities and operations of
the farm. True, it is a father's prerogative to request or even
command his child to run errands for him. In the present case,
however, considering the nature of these transactions, as well
as the property values and monetary sums involved, it is
unlikely that private respondent would leave the matter to just
anyone. Prudence dictates that these matters be handled by
someone who can be trusted or at least be held accountable
therefor, and who is familiar with the terms, specifications and
other details relative thereto, such as an employee. If indeed
petitioner had abandoned his job or was considered to have
done so by private respondent, it would be awkward, or even
out of place, to expect or to oblige petitioner to concern himself
with matters relating to or expected of him with respect to what
would then be his past and terminated employment. It is hard
to imagine what further authority an employer can have over a
dismissed employee so as to compel him to continue to
perform work-related tasks:
It is also significant that the special power of attorney 32
executed by private respondent on June 26, 1980 in favor of
petitioner, specifically stating
That I, JON de YSASI, Filipino, of legal age, married, and a
resident of Hda. Manucao, hereinafter called and referred to as
PRINCIPAL, am a sugarcane planter, BISCOM Mill District,
and a duly accredited planter-member of the 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 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 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".
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 or ex
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
20
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 employment 38 does not
square with the elements constitutive of abandonment.
On procedural considerations, petitioner posits that there was
a violation by private respondent of the due process
requirements under the Labor Code for want of notice and
hearing. 39 Private respondent, in opposition, argues that
Section 2, Rule XIV, Book V of the Omnibus Rules
Implementing the Labor Code applies only to cases where the
employer seeks to terminate the services of an employee on
any of the grounds enumerated under Article 282 of the Labor
Code, but not to the situation obtaining in this case where
private respondent did not dismiss petitioner on any ground
since it was petitioner who allegedly abandoned his
employment.
The due process requirements of notice and hearing applicable
to labor cases are set out in Rule XIV, Book V of the Omnibus
Rules Implementing the Labor Code in this wise:
Sec. 2. Notice of Dismissal. Any employer who seeks to
dismiss a worker shall furnish him a written notice stating the
particular acts or omission(s) constituting the grounds for his
dismissal. In cases of abandonment of work, notice shall be
served at the worker's last known address.
Sec. 5. Answer and hearing. The worker may answer the
allegations as stated against him in the notice of dismissal
within a reasonable period from receipt of such notice. The
employer shall afford the worker ample opportunity to be heard
and to defend himself with the assistance of his representative,
if he so desires.
Sec. 6. Decision to dismiss. The employer shall
immediately notify a worker in writing of a decision to dismiss
him stating clearly the reasons therefor.
Sec. 7. Right to contest dismissal. Any decision taken by
the employer shall be without prejudice to the right of the
worker to contest the validity or legality of his dismissal by filing
a complaint with the Regional Branch of the Commission.
Sec. 11. Report of dismissal. The employer shall submit a
monthly report to the Regional Office having jurisdiction over
the place of work at all dismissals effected by him during the
month, specifying therein the names of the dismissed workers,
the reasons for their dismissal, the dates of commencement
and termination of employment, the positions last held by them
and such other information as may be required by the Ministry
for policy guidance and statistical purposes.
Private respondent's argument is without merit as there can be
no question that petitioner was denied his right to due process
since he was never given any notice about his impending
dismissal and the grounds therefor, much less a chance to be
heard. Even as private respondent controverts the applicability
of the mandatory twin requirements of procedural due process
in this particular case, he in effect admits that no notice was
served by him on petitioner. This fact is corroborated by the
certification issued on September 5, 1984 by the Regional
Director for Region VI of the Department of Labor that no
notice of termination of the employment of petitioner was
submitted thereto.
Granting arguendo that there was abandonment in this case, it
nonetheless cannot be denied that notice still had to be served
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.
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 he failed to notify the Department of
Labor and Employment for his sons' (sic)/complainants' (sic)
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.
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
21
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.
We note with favor and give our imprimatur to the Solicitor
General's ratiocination, to wit:
As a general rule, an employee who is unjustly dismissed from
work shall be entitled to reinstatement without loss of seniority
rights and to his backwages computed from the time his
compensation was withheld up to the time of his reinstatement.
(Morales vs. NLRC, 188 SCRA 295). But in Pacific Cement
Company, Inc. vs. NLRC, 173 SCRA 192, this Honorable Court
held that when it comes to reinstatement, differences should
be made between managers and the ordinary workingmen.
The Court concluded that a company which no longer trusts its
managers cannot operate freely in a competitive and profitable
manner. The NLRC should know the difference between
managers and ordinary workingmen. It cannot imprudently
order the reinstatement of managers with the same ease and
liberality as that of rank and file workers who had been
terminated. Similarly, a reinstatement may not be appropriate
or feasible in case of antipathy or antagonism between the
parties (Morales, vs. NLRC, 188 SCRA 295).
In the present case, it is submitted that petitioner should not be
reinstated as farm administrator of Hacienda Manucao. The
present relationship of petitioner and private respondent (is) so
strained that a harmonious and peaceful employee-employer
relationship is hardly possible.
III. Finally, petitioner insists on an award of moral
damages, arguing that his dismissal from employment was
attended by bad faith or fraud, or constituted oppression, or
was contrary to morals, good customs or public policy. He
further prays for exemplary damages to serve as a deterrent
against similar acts of unjust dismissal by other employers.
Moral damages, under Article 2217 of the Civil Code, may be
awarded to compensate one for diverse injuries such as
mental anguish, besmirched reputation, wounded feelings, and
social humiliation, provided that such injuries spring from a
wrongful act or omission of the defendant which was the
proximate cause thereof. 50 Exemplary damages, under Article
2229, are imposed by way of example or correction for the
public good, in addition to moral, temperate, liquidated or
compensatory damages. They are not recoverable as a matter
of right, it being left to the court to decide whether or not they
should be adjudicated.
We are well aware of the Court's rulings in a number of cases
in the past allowing recovery of moral damages where the
dismissal of the employee was attended by bad faith or fraud,
or constituted an act oppressive to labor, or was done in a
manner contrary to morals, good customs or public policy, 52
and of exemplary damages if the dismissal was effected in a
wanton, oppressive or malevolent manner. 53 We do not feel,
however, that an award of the damages prayed for in this
petition would be proper even if, seemingly, the facts of the
case justify their allowance. In the aforestated cases of illegal
dismissal where moral and exemplary damages were awarded,
the dismissed employees were genuinely without fault and
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 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 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.
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 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.
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." 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
22
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, sans sentimentality, we are saddened by the
thought that we may have failed to bring about the
reconciliation of the father and son who figured as parties to
this dispute, and that our adherence here to law and duty may
unwittingly contribute to the breaking, instead of the
strengthening, of familial bonds. In fine, neither of the parties
herein actually emerges victorious. It is the Court's earnest
hope, therefore, that with the impartial exposition and extended
explanation of their respective rights in this decision, the
parties may eventually see their way clear to an ultimate
resolution of their differences on more convivial terms.
WHEREFORE, the decision of respondent National Labor
Relations Commission is hereby SET ASIDE. Private
respondent is ORDERED to pay petitioner back wages for a
period not exceeding three (3) years, without qualification or
deduction, 58 and, in lieu of reinstatement, separation pay
equivalent to one (1) month for every year of service, a fraction
of six (6) months being considered as one (1) whole year.
SO ORDERED.
Narvasa, C.J., Padilla, Nocon and Puno, JJ., concur.
SECOND DIVISION
[A. C. No. 5485. March 16, 2005]
ELMER CANOY, complainant, vs. ATTY. JOSE MAX ORTIZ,
respondent.
DECISION
TINGA, J.:
There are no good reasons that would justify a lawyer virtually
abandoning the cause of the client in the midst of litigation
without even informing the client of the fact or cause of
desertion. That the lawyer forsook his legal practice on account
of what might be perceived as a higher calling, election to
public office, does not mitigate the dereliction of professional
duty. Suspension from the practice is the usual penalty, and
there is no reason to deviate from the norm in this case.
A Complaint dated 10 April 2001 was filed with the Office of the
Bar Confidant by Elmer Canoy (Canoy) accusing Atty. Jose
Max Ortiz (Atty. Ortiz) of misconduct and malpractice. It was
alleged that Canoy filed a complaint for illegal dismissal
against his former employer, Coca Cola Bottlers Philippines.
The complaint was filed with the National Labor Relations
Commission (NLRC) Regional Arbitration Board VI in Bacolod
City. Atty. Ortiz appeared as counsel for Canoy in this
proceeding. In 1998, the labor arbiter hearing the complaint
ordered the parties to submit their respective position papers.
Canoy submitted all the necessary documents and records to
Atty. Ortiz for the preparation of the position paper. Thereafter,
he made several unfruitful visits to the office of Atty. Ortiz to
follow-up the progress of the case. After a final visit at the
office of Atty. Ortiz in April of 2000, during which Canoy was
told to come back as his lawyer was not present, Canoy
decided to follow-up the case himself with the NLRC. He was
shocked to learn that his complaint was actually dismissed way
back in 1998, for failure to prosecute, the parties not having
submitted their position papers. The dismissal was without
prejudice. Canoy alleged that Atty. Ortiz had never
communicated to him about the status of the case, much less
the fact that he failed to submit the position paper.
The Comment filed by Atty. Ortiz is the epitome of 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.
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.
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.
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.
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.
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 services of lawyers. The efforts of private practitioners who
assist in this goal are especially commendable, owing to their
23
sacrifice in time and 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.
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.
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 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 se a
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.
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.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.
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
24
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 furnished to all
chapters of the Integrated Bar of the Philippines and to all the
courts in the land.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Chico-
Nazario, JJ., concur.
SECOND DIVISION
[A.C. No. 1261. December 29, 1983.]
TAN TEK BENG, Complainant, v. TIMOTEO A. DAVID,
Respondent.
Basilio Lanoria for complainant.
Timoteo A. David for and in his own behalf.
SYLLABUS
1. LEGAL ETHICS; MEMBER OF THE BAR;
SOLICITING CASES AT LAW FOR THE
PURPOSE OF GAIN; CONSTITUTES
MALPRACTICE. Where in the agreement
lawyer David not only agreed to give one-half of
his professional fees to an intermediary or
commission agent but he also bound himself not
to deal directly with the clients, the Court held
that the said agreement is void because it was
tantamount to malpractice which is "the practice
of soliciting cases at law for the purpose of gain,
either personally or through paid agents or
brokers" (Sec. 27, Rule 138, Rules of Court).
Malpractice ordinarily refers to any malfeasance
or dereliction of duty committed by a lawyer.
Section 27 gives a special and technical meaning
to the term "malpractice" (Act No. 2828,
amending Sec. 21 of Act No. 190). That meaning
is in consonance with the elementary notion that
the practice of law is a profession, not a
business. "The lawyer may not seek or obtain
employment by himself or through others for to
do so would be unprofessional" (2 R.C.L. 1097
cited in In re Tagorda, 33 Phil. 37, 42).
2. ID.; ID.; ID.; UNPROFESSIONAL CONDUCT;
CAUSE FOR CENSURE. The
commercialization of law practice is condemned
in certain canons of professional ethics adopted
by the American Bar Association.
"Unprofessional conduct in an attorney is that
which violates the rules or ethical code of his
profession or which is unbecoming a member of
that profession" (Note 14, 7 C.J.S. 743). We
censure lawyer David for having entered and
acted upon such void and unethical agreement.
We discountenance his conduct, not because of
the complaint of Tan Tek Beng (who did not know
legal ethics) but because David should have
known better.
DECISION
AQUINO, J.:
The issue in this case is whether disciplinary action should be
taken against lawyer Timoteo A. David (admitted to the bar in
1945) for not giving Tan Tek Beng, a nonlawyer (alleged
missionary of the Seventh Day Adventists), one-half of the
attorneys fees received by David from the clients supplied by
Tan Tek Beng. Their agreement reads:
"December 3, 1970
"Mr. Tan Tek Beng
"Manila
"Dear Mr. Tan:
In compliance with your request, I am now putting into writing
our agreement which must be followed in connection with the
accounts that you will entrust to me for collection. Our terms
and conditions shall be as follows:
"1. On all commission or attorneys fees that we shall
receive from our clients by virtue of the collection that we shall
be able to effect on their accounts, we shall divide fifty-fifty.
Likewise you are entitled to commission, 50/50 from domestic,
inheritance and commercial from our said clients or in any
criminal cases where they are involved.
"2. I shall not deal directly with our clients without your
consent.
"3. You shall take care of collecting our fees as well as
advances for expenses for the cases referred to us by our
clients and careful in safeguarding our interest.
"4. It is understood that legal expenses that we shall
recover from the debtors shall be turned over to our clients.
25
Other clients who directly or indirectly have been approached
or related (sic) to you as a result of your labor are your clients.
"I hereby pledge in the name of God, our Heavenly Father, that
I will be sincere, honest and fair with you in connection with our
transactions with our clients. Likewise you must be sincere,
honest and fair with me.
Very truly yours,
(Sgd.) Illegible
TIMOTEO A. DAVID
"P.S.
I will be responsible for all documents entrusted me by our
clients.
(Sgd.) Initial
"CONFORME to the above and likewise will reciprocate my
sincerity to Atty. David as stated in the last paragraph of this
letter.
(Sgd.) Tan Tek Beng
MR. TAN TEK BENG"
The foregoing was a reiteration of an agreement dated August
5, 1969. Note that in said agreement lawyer David not only
agreed to give one-half of his professional fees to an
intermediary or commission agent but he also bound himself
not to deal directly with the clients.
The business relationship between David and Tan Tek Beng
did not last. There were mutual accusations of doublecross.
For allegedly not living up to the agreement, Tan Tek Beng in
1973 denounced David to Presidential Assistant Ronaldo B.
Zamora, to the Office of Civil Relations at Camp Crame and to
this Court. He did not file any civil action to enforce the
agreement.
In his 1974 comment, David clarified that the partnership was
composed of himself as manager, Tan Tek Beng as assistant
manager and lawyer Pedro Jacinto as president and financier.
When Jacinto became ill and the costs of office maintenance
mounted, David suggested that Tan Tek Beng should also
invest some money or shoulder a part of the business
expenses but Tan Tek Beng refused.
This case was referred to the Solicitor General for
investigation, report and recommendation. Hearings were
scheduled from 1974 to 1981. It was proposed that respondent
should submit a stipulation of facts but that did not materialize
because the scheduled hearings were not held due to the
nonavailability of Tan Tek Beng and his counsel.
On September 16, 1977 Tan Tek Beng died at the Philippine
Union Colleges Compound, Baesa, Caloocan City but it was
only in the manifestation of his counsel dated August 10, 1981
that the Solicitor Generals Office was informed of that fact. A
report on this case dated March 21, 1983 was submitted by the
Solicitor General to this Court.
We hold that the said agreement is void because it was
tantamount to malpractice which is "the practice of soliciting
cases at law for the purpose of gain, either personally or
through paid agents or brokers" Sec. 27, Rule 138, Rules of
Court). Malpractice ordinarily refers to any malfeasance or
dereliction of duty committed by a lawyer. Section 27 gives a
special and technical meaning to the term "malpractice" (Act
No. 2828, amending sec. 21 of Act No. 190).
That meaning is in consonance with the elementary notion that
the practice of law is a profession, not a business. "The lawyer
may not seek or obtain employment by himself or through
others for to do so would be unprofessional" (2 R.C.L. 1097
cited in In re Tagorda, 53 Phil. 37, 42; Malcolm, J., Jayme v.
Bualan, 58 Phil. 422; Arce v. Philippine National Bank, 62 Phil.
569). The commercialization of law practice is condemned in
certain canons of professional ethics adopted by the American
Bar Association:
"34. Division of Fees. No division of fees for legal
services is proper, except with another lawyer, based upon a
division of service or responsibility."
"35. Intermediaries. The professional services of a
lawyer should not be controlled or exploited by any law
agency, personal or corporate, which intervenes between client
and lawyer. A lawyers responsibilities and qualifications are
individual. He should avoid all relations which direct the
performance of his duties by or in the interest of such
intermediary. A lawyers relation to his client should be
personal, and the responsibility should be direct to the client. . .
."
"38. Compensation, Commissions and Rebates. A
lawyer should accept no compensation, commissions, rebates
or other advantages from others without the knowledge and
consent of his client after full disclosure." (Appendix, Malcolm,
Legal Ethics).
We censure lawyer David for having entered and acted upon
such void and unethical agreement. We discountenance his
conduct, not because of the complaint of Tan Tek Beng (who
did not know legal ethics) but because David should have
known better.
"Unprofessional conduct in an attorney is that which violates
the rules or ethical code of his profession or which is
unbecoming a member of that profession" (Note 14, 7 C.J.S.
743).
WHEREFORE, respondent is reprimanded for being guilty of
malpractice. A copy of this decision should be attached to his
record in the Bar Confidants office.
SO ORDERED.
Concepcion, Jr., Guerrero, Abad Santos, De Castro and
Escolin, JJ., concur.
Makasiar (Chairman), J., took no part.
EN BANC
March 23, 1929
In re LUIS B. TAGORDA,
Duran & Lim for respondent.
Attorney-General Jaranilla and Provincial Fiscal Jose for the
Government.
MALCOLM, J.:
The respondent, Luis B. Tagorda, a practising attorney and a
member of the provincial board of Isabela, admits that previous
to the last general elections he made use of a card written in
Spanish and Ilocano, which, in translation, reads as follows:
LUIS B. TAGORDA
Attorney
Notary Public
CANDIDATE FOR THIRD MEMBER
26
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 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; People vs.
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
27
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 facts, the respondent stands convicted of having
solicited cases in defiance of the law and those canons.
Accordingly, the only remaining 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.
FIRST DIVISION
[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.[2]
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
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.[10]
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. [11] 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-
28
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.[13] The gaining of a
livelihood should be a secondary consideration.[14] The duty to
public service and to the administration of justice should be the
primary consideration of lawyers, who must subordinate their
personal interests or what they owe to themselves.[15] The
following elements distinguish the legal profession from a
business:
1. A duty of public service, of which the emolument is a 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.
There is no question that respondent committed the acts
complained of. He himself admits that he caused the
publication of the advertisements. While he professes
repentance and begs for the Courts indulgence, his contrition
rings hollow considering the fact that he advertised his legal
services again after he pleaded for compassion and after
claiming that he had no intention to violate the rules. Eight
months after filing his answer, he again advertised his legal
services in the August 14, 2001 issue of the Buy & Sell Free
Ads Newspaper. Ten months later, he caused the same
advertisement to be published in the October 5, 2001 issue of
Buy & Sell. Such acts of respondent are a deliberate and
contemptuous affront on the Courts authority.
What adds to the gravity of respondents acts is that in
advertising himself as a self-styled Annulment of Marriage
Specialist, he wittingly or unwittingly erodes and undermines
not only the stability but also the sanctity of an institution still
considered sacrosanct despite the contemporary climate of
permissiveness in our society. Indeed, in assuring prospective
clients that an annulment may be obtained in four to six
months from the time of the filing of the case,[19] he in fact
encourages people, who might have otherwise been
disinclined and would have refrained from dissolving their
marriage bonds, to do so.
Nonetheless, the solicitation of legal business is not altogether
proscribed. However, for solicitation to be proper, it must be
compatible with the dignity of the legal profession. If it is made
in a modest and decorous manner, it would bring no injury to
the lawyer and to the bar.[20] Thus, the use of simple signs
stating the name or names of the lawyers, the office and
residence address and fields of practice, as well as
advertisement in legal periodicals bearing the same brief data,
are permissible. Even the use of calling cards is now
acceptable. Publication in reputable law lists, in a manner
consistent with the standards of conduct imposed by the
canon, of brief biographical and informative data is likewise
allowable. As explicitly stated in Ulep v. Legal Clinic, Inc.:
Such data must not be misleading and may include only a
statement of the lawyers name and the names of his
professional associates; addresses, telephone numbers, cable
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.
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.
29
EN BANC
July 30, 1979
PETITION FOR AUTHORITY TO CONTINUE USE OF THE
FIRM NAME "SYCIP, SALAZAR, FELICIANO, HERNANDEZ
& CASTILLO." LUCIANO E. SALAZAR, FLORENTINO P.
FELICIANO, BENILDO G. HERNANDEZ. GREGORIO R.
CASTILLO. ALBERTO P. SAN JUAN, JUAN C. REYES. JR.,
ANDRES G. GATMAITAN, JUSTINO H. CACANINDIN, NOEL
A. LAMAN, ETHELWOLDO E. FERNANDEZ, ANGELITO C.
IMPERIO, EDUARDO R. CENIZA, TRISTAN A. CATINDIG,
ANCHETA K. TAN, and ALICE V. PESIGAN, petitioners.
IN THE MATTER OF THE PETITION FOR AUTHORITY TO
CONTINUE USE OF THE FIRM NAME "OZAETA, ROMULO,
DE LEON, MABANTA & REYES." RICARDO J. ROMULO,
BENJAMIN M. DE LEON, ROMAN MABANTA, JR., JOSE MA,
REYES, JESUS S. J. SAYOC, EDUARDO DE LOS
ANGELES, and JOSE F. BUENAVENTURA, petitioners.
RESOLUTION
MELENCIO-HERRERA, J.:
Two separate Petitions were filed before this Court 1) by the
surviving partners of Atty. Alexander Sycip, who died on May
5, 1975, and 2) by the surviving partners of Atty. Herminio
Ozaeta, who died on February 14, 1976, praying that they be
allowed to continue using, in the names of their firms, the
names of partners who had passed away. In the Court's
Resolution of September 2, 1976, both Petitions were ordered
consolidated.
Petitioners base their petitions on the following arguments:
1. Under the law, a partnership is not prohibited from
continuing its business under a firm name which includes the
name of a deceased partner; in fact, Article 1840 of the Civil
Code explicitly sanctions the practice when it provides in the
last paragraph that:
The use by the person or partnership continuing the business
of the partnership name, or the name of a deceased partner as
part thereof, shall not of itself make the individual property of
the deceased partner liable for any debts contracted by such
person or partnership.
2. In regulating other professions, such as accountancy
and engineering, the legislature has authorized the adoption of
firm names without any restriction as to the use, in such firm
name, of the name of a deceased partner; the legislative
authorization given to those engaged in the practice of
accountancy a profession requiring the same degree of trust
and confidence in respect of clients as that implicit in the
relationship of attorney and client to acquire and use a trade
name, strongly indicates that there is no fundamental policy
that is offended by the continued use by a firm of professionals
of a firm name which includes the name of a deceased partner,
at least where such firm name has acquired the characteristics
of a "trade name."
3. The Canons of Professional Ethics are not
transgressed by the continued use of the name of a deceased
partner in the firm name of a law partnership because Canon
33 of the Canons of Professional Ethics adopted by the
American Bar Association declares that:
... The continued use of the name of a deceased or former
partner when permissible by local custom, is not unethical but
care should be taken that no imposition or deception is
practiced through this use. ...
4. There is no possibility of imposition or deception
because the deaths of their respective deceased partners were
well-publicized in all newspapers of general circulation for
several days; the stationeries now being used by them carry
new letterheads indicating the years when their respective
deceased partners were connected with the firm; petitioners
will notify all leading national and international law directories
of the fact of their respective deceased partners' deaths.
5. No local custom prohibits the continued use of a
deceased partner's name in a professional firm's name; 6 there
is no custom or usage in the Philippines, or at least in the
Greater Manila Area, which recognizes that the name of a law
firm necessarily Identifies the individual members of the firm.
6. The continued use of a deceased partner's name in
the firm name of law partnerships has been consistently
allowed by U.S. Courts and is an accepted practice in the legal
profession of most countries in the world.
The question involved in these Petitions first came under
consideration by this Court in 1953 when a law firm in Cebu
(the Deen case) continued its practice of including in its firm
name that of a deceased partner, C.D. Johnston. The matter
was resolved with this Court advising the firm to desist from
including in their firm designation the name of C. D. Johnston,
who has long been dead."
The same issue was raised before this Court in 1958 as an
incident in G. R. No. L-11964, entitled Register of Deeds of
Manila vs. China Banking Corporation. The law firm of Perkins
& Ponce Enrile moved to intervene as amicus curiae. Before
acting thereon, the Court, in a Resolution of April 15, 1957,
stated that it "would like to be informed why the name of
Perkins is still being used although Atty. E. A. Perkins is
already dead." In a Manifestation dated May 21, 1957, the law
firm of Perkins and Ponce Enrile, raising substantially the same
arguments as those now being raised by petitioners, prayed
that the continued use of the firm name "Perkins & Ponce
Enrile" be held proper.
On June 16, 1958, this Court resolved:
After carefully considering the reasons given by Attorneys
Alfonso Ponce Enrile and Associates for their continued use of
the name of the deceased E. G. Perkins, the Court found no
reason to depart from the policy it adopted in June 1953 when
it required Attorneys Alfred P. Deen and Eddy A. Deen of Cebu
City to desist from including in their firm designation, the name
of C. D. Johnston, deceased. The Court believes that, in view
of the personal and confidential nature of the relations between
attorney and client, and the high standards demanded in the
canons of professional ethics, no practice should be allowed
which even in a remote degree could give rise to the possibility
of deception. Said attorneys are accordingly advised to drop
the name "PERKINS" from their firm name
Petitioners herein now seek a re-examination of the policy thus
far enunciated by the Court.
The Court finds no sufficient reason to depart from the rulings
thus laid down.
30
A. Inasmuch as "Sycip, Salazar, Feliciano, Hernandez
and Castillo" and "Ozaeta, Romulo, De Leon, Mabanta and
Reyes" are partnerships, the use in their partnership names of
the names of deceased partners will run counter to Article
1815 of the Civil Code which provides:
Art. 1815. Every partnership shall operate under a firm
name, which may or may not include the name of one or more
of the partners.
Those who, not being members of the partnership, include
their names in the firm name, shall be subject to the liability, of
a partner.
It is clearly tacit in the above provision that names in a firm
name of a partnership must either be those of living partners
and. in the case of non-partners, should be living persons who
can be subjected to liability. In fact, Article 1825 of the Civil
Code prohibits a third person from including his name in the
firm name under pain of assuming the liability of a partner. The
heirs of a deceased partner in a law firm cannot be held liable
as the old members to the creditors of a firm particularly where
they are non-lawyers. Thus, Canon 34 of the Canons of
Professional Ethics "prohibits an agreement for the payment to
the widow and heirs of a deceased lawyer of a percentage,
either gross or net, of the fees received from the future
business of the deceased lawyer's clients, both because the
recipients of such division are not lawyers and because such
payments will not represent service or responsibility on the part
of the recipient. " Accordingly, neither the widow nor the heirs
can be held liable for transactions entered into after the death
of their lawyer-predecessor. There being no benefits accruing,
there ran be no corresponding liability.
Prescinding the law, there could be practical objections to
allowing the use by law firms of the names of deceased
partners. The public relations value of the use of an old firm
name can tend to create undue advantages and disadvantages
in the practice of the profession. An able lawyer without
connections will have to make a name for himself starting from
scratch. Another able lawyer, who can join an old firm, can
initially ride on that old firm's reputation established by
deceased partners
B. In regards to the last paragraph of Article 1840 of the
Civil Code cited by petitioners, supra, the first factor to
consider is that it is within Chapter 3 of Title IX of the Code
entitled "Dissolution and Winding Up." The Article primarily
deals with the exemption from liability in cases of a dissolved
partnership, of the individual property of the deceased partner
for debts contracted by the person or partnership which
continues the business using the partnership name or the
name of the deceased partner as part thereof. What the law
contemplates therein is a hold-over situation preparatory to
formal reorganization.
Secondly, Article 1840 treats more of a commercial partnership
with a good will to protect rather than of a professional
partnership, with no saleable good will but whose reputation
depends on the personal qualifications of its individual
members. Thus, it has been held that a saleable goodwill can
exist only in a commercial partnership and cannot arise in a
professional partnership consisting of lawyers.
As a general rule, upon the dissolution of a commercial
partnership the succeeding partners or parties have the right to
carry on the business under the old name, in the absence of a
stipulation forbidding it, (s)ince the name of a commercial
partnership is a partnership asset inseparable from the good
will of the firm. ... (60 Am Jur 2d, s 204, p. 115) (Emphasis
supplied)
On the other hand,
... a professional partnership the reputation of which depends
or; the individual skill of the members, such as partnerships of
attorneys or physicians, has no good win to be distributed as a
firm asset on its dissolution, however intrinsically valuable such
skill and reputation may be, especially where there is no
provision in the partnership agreement relating to good will as
an asset. ... (ibid, s 203, p. 115) (Emphasis supplied)
C. A partnership for the practice of law cannot be likened
to partnerships formed by other professionals or for business.
For one thing, the law on accountancy specifically allows the
use of a trade name in connection with the practice of
accountancy.
A partnership for the practice of law is not a legal entity. It is a
mere relationship or association for a particular purpose. ... It is
not a partnership formed for the purpose of carrying on trade or
business or of holding property." 11 Thus, it has been stated
that "the use of a nom de plume, assumed or trade name in
law practice is improper.
The usual reason given for different standards of conduct
being applicable to the practice of law from those pertaining to
business is that the law is a profession.
Dean Pound, in his recently published contribution to the
Survey of the Legal Profession, (The Lawyer from Antiquity to
Modern Times, p. 5) defines a profession as "a group of men
pursuing a learned art as a common calling in the spirit of
public service, no less a public service because it may
incidentally be a means of livelihood."
xxx xxx xxx
Primary characteristics which distinguish the legal profession
from business are:
1. A duty of public service, of which the emolument is a
byproduct, and in which one may attain the highest eminence
without making much money.
2. A relation as an "officer of court" to the administration
of justice involving thorough sincerity, integrity, and reliability.
3. A relation to clients in the highest degree fiduciary.
4. A relation to colleagues at the bar characterized by
candor, fairness, and unwillingness to resort to current
business methods of advertising and encroachment on their
practice, or dealing directly with their clients.
"The right to practice law is not a natural or constitutional right
but is in the nature of a privilege or franchise. 14 It is limited to
persons of good moral character with special qualifications
duly ascertained and certified. 15 The right does not only
presuppose in its possessor integrity, legal standing and
attainment, but also the exercise of a special privilege, highly
personal and partaking of the nature of a public trust."
D. Petitioners cited Canon 33 of the Canons of
Professional Ethics of the American Bar Association" in
support of their petitions.
It is true that Canon 33 does not consider as unethical the
continued use of the name of a deceased or former partner in
the firm name of a law partnership when such a practice is
permissible by local custom but the Canon warns that care
should be taken that no imposition or deception is practiced
through this use.
It must be conceded that in the Philippines, no local custom
permits or allows the continued use of a deceased or former
partner's name in the firm names of law partnerships. Firm
names, under our custom, Identify the more active and/or more
senior members or partners of the law firm. A glimpse at the
history of the firms of petitioners and of other law firms in this
31
country would show how their firm names have evolved and
changed from time to time as the composition of the
partnership changed.
The continued use of a firm name after the death of one or
more of the partners designated by it is proper only where
sustained by local custom and not where by custom this
purports to Identify the active members. ...
There would seem to be a question, under the working of the
Canon, as to the propriety of adding the name of a new partner
and at the same time retaining that of a deceased partner who
was never a partner with the new one. (H.S. Drinker, op. cit.,
supra, at pp. 207208) (Emphasis supplied).
The possibility of deception upon the public, real or
consequential, where the name of a deceased partner
continues to be used cannot be ruled out. A person in search
of legal counsel might be guided by the familiar ring of a
distinguished name appearing in a firm title.
E. Petitioners argue that U.S. Courts have consistently
allowed the continued use of a deceased partner's name in the
firm name of law partnerships. But that is so because it is
sanctioned by custom.
In the case of Mendelsohn v. Equitable Life Assurance Society
(33 N.Y.S. 2d 733) which petitioners Salazar, et al. quoted in
their memorandum, the New York Supreme Court sustained
the use of the firm name Alexander & Green even if none of
the present ten partners of the firm bears either name because
the practice was sanctioned by custom and did not offend any
statutory provision or legislative policy and was adopted by
agreement of the parties. The Court stated therein:
The practice sought to be proscribed has the sanction of
custom and offends no statutory provision or legislative policy.
Canon 33 of the Canons of Professional Ethics of both the
American Bar Association and the New York State Bar
Association provides in part as follows: "The continued use of
the name of a deceased or former partner, when permissible
by local custom is not unethical, but care should be taken that
no imposition or deception is practiced through this use." There
is no question as to local custom. Many firms in the city use the
names of deceased members with the approval of other
attorneys, bar associations and the courts. The Appellate
Division of the First Department has considered the matter and
reached The conclusion that such practice should not be
prohibited. (Emphasis supplied)
xxx xxx xxx
Neither the Partnership Law nor the Penal Law prohibits the
practice in question. The use of the firm name herein is also
sustainable by reason of agreement between the partners.
Not so in this jurisdiction where there is no local custom that
sanctions the practice. Custom has been defined as a rule of
conduct formed by repetition of acts, uniformly observed
(practiced) as a social rule, legally binding and obligatory. 19
Courts take no judicial notice of custom. A custom must be
proved as a fact, according to the rules of evidence. 20 A local
custom as a source of right cannot be considered by a court of
justice unless such custom is properly established by
competent evidence like any other fact. 21 We find such proof
of the existence of a local custom, and of the elements
requisite to constitute the same, wanting herein. Merely
because something is done as a matter of practice does not
mean that Courts can rely on the same for purposes of
adjudication as a juridical custom. Juridical custom must be
differentiated from social custom. The former can supplement
statutory law or be applied in the absence of such statute. Not
so with the latter.
Moreover, judicial decisions applying or interpreting the laws
form part of the legal system. 22 When the Supreme Court in
the Deen and Perkins cases issued its Resolutions directing
lawyers to desist from including the names of deceased
partners in their firm designation, it laid down a legal rule
against which no custom or practice to the contrary, even if
proven, can prevail. This is not to speak of our civil law which
clearly ordains that a partnership is dissolved by the death of
any partner. Custom which are contrary to law, public order or
public policy shall not be countenanced.
The practice of law is intimately and peculiarly related to the
administration of justice and should not be considered like an
ordinary "money-making trade."
... It is of the essence of a profession that it is practiced in a
spirit of public service. A trade ... aims primarily at personal
gain; a profession at the exercise of powers beneficial to
mankind. If, as in the era of wide free opportunity, we think of
free competitive self assertion as the highest good, lawyer and
grocer and farmer may seem to be freely competing with their
fellows in their calling in order each to acquire as much of the
world's good as he may within the allowed him by law. But the
member of a profession does not regard himself as in
competition with his professional brethren. He is not bartering
his services as is the artisan nor exchanging the products of
his skill and learning as the farmer sells wheat or corn. There
should be no such thing as a lawyers' or physicians' strike. The
best service of the professional man is often rendered for no
equivalent or for a trifling equivalent and it is his pride to do
what he does in a way worthy of his profession even if done
with no expectation of reward, This spirit of public service in
which the profession of law is and ought to be exercised is a
prerequisite of sound administration of justice according to law.
The other two elements of a profession, namely, organization
and pursuit of a learned art have their justification in that they
secure and maintain that spirit.
In fine, petitioners' desire to preserve the Identity of their firms
in the eyes of the public must bow to legal and ethical
impediment.
ACCORDINGLY, the petitions filed herein are denied and
petitioners advised to drop the names "SYCIP" and "OZAETA"
from their respective firm names. Those names may, however,
be included in the listing of individuals who have been partners
in their firms indicating the years during which they served as
such.
SO ORDERED.
Teehankee, Concepcion, Jr., Santos, Fernandez, Guerrero
and De Castro, JJ., concur
Fernando, C.J. and Abad Santos, J., took no part.
Separate Opinions
FERNANDO, C.J., concurring:
The petitions are denied, as there are only four votes for
granting them, seven of the Justices being of the contrary view,
as explained in the plurality opinion of Justice Ameurfina
Melencio-Herrera. It is out of delicadeza that the undersigned
did not participate in the disposition of these petitions, as the
law office of Sycip, Salazar, Feliciano, Hernandez and Castillo
started with the partnership of Quisumbing, Sycip, and
Quisumbing, the senior partner, the late Ramon Quisumbing,
being the father-in-law of the undersigned, and the most junior
partner then, Norberto J. Quisumbing, being his brother- in-
law. For the record, the undersigned wishes to invite the
attention of all concerned, and not only of petitioners, to the
last sentence of the opinion of Justice Ameurfina Melencio-
Herrera: 'Those names [Sycip and Ozaeta] may, however, be
included in the listing of individuals wtes
32

AQUINO, J., dissenting:

I dissent. The fourteen members of the law firm, Sycip,

Salazar, Feliciano, Hernandez & Castillo, in their petition of
June 10, 1975, prayed for authority to continue the use of that
firm name, notwithstanding the death of Attorney Alexander
Sycip on May 5, 1975 (May he rest in peace). He was the
founder of the firm which was originally known as the Sycip
Law Office.

On the other hand, the seven surviving partners of the law firm,
Ozaeta, Romulo, De Leon, Mabanta & Reyes, in their petition
of August 13, 1976, prayed that they be allowed to continue
using the said firm name notwithstanding the death of two
partners, former Justice Roman Ozaeta and his son, Herminio,
on May 1, 1972 and February 14, 1976, respectively.

They alleged that the said law firm was a continuation of the
Ozaeta Law Office which was established in 1957 by Justice
Ozaeta and his son and that, as to the said law firm, the name
Ozaeta has acquired an institutional and secondary
connotation.

Article 1840 of the Civil Code, which speaks of the use by the
partnership of the name of a deceased partner as part of the
partnership name, is cited to justify the petitions. Also invoked
is the canon that the continued use by a law firm of the name
of a deceased partner, "when permissible by local custom, is
not unethical" as long as "no imposition or deception is
practised through this use" (Canon 33 of the Canons of Legal
Ethics). EN BANC
I am of the opinion that the petition may be granted with the G.R. No. 46371 February 7, 1940
condition that it be indicated in the letterheads of the two firms
(as the case may be) that Alexander Sycip, former Justice FORTUNATO N. SUAREZ, petitioner,
Ozaeta and Herminio Ozaeta are dead or the period when they
served as partners should be stated therein. vs.

Obviously, the purpose of the two firms in continuing the use of SERVILLANO PLATON, Judge of Court of First Instance of
the names of their deceased founders is to retain the clients Tayabas, The PROVINCIAL FISCAL OF TAYABAS,
who had customarily sought the legal services of Attorneys VIVENCIO ORAIS and DAMIAN JIMENEZ, respondents.
Sycip and Ozaeta and to benefit from the goodwill attached to
Godofredo Reyes for petitioner.
the names of those respected and esteemed law practitioners.
That is a legitimate motivation. Provincial Fiscal of Tayabas Hermogenes Caluag for
respondents.
The retention of their names is not illegal per se. That practice
was followed before the war by the law firm of James Ross. LAUREL, J.:
Notwithstanding the death of Judge Ross the founder of the
law firm of Ross, Lawrence, Selph and Carrascoso, his name This is an original petition for the peremptory writ of mandamus
was retained in the firm name with an indication of the year filed by Fortunato N. Suarez with this court, to compel the
when he died. No one complained that the retention of the respondent judge to reinstate criminal case No. 6426 of the
name of Judge Ross in the firm name was illegal or unethical. Court of First Instance of Tayabas so that the case may
proceed to trial in the ordinary course.

It appears on May 9, 1935, Lieutenant Vivencio Orais, of the

Philippine Constabulary, one of the respondents in this case,
filed a complaint under oath with the justice of the peace of
Calauag, Province of Tayabas, charging the petitioner herein,
Fortunato N. Suarez, and one Tomas Ruedas, with sedition
under Article 142 of the Revised Penal Code. The complaint,
upon preliminary examination, was docketed and given due
course. While the said case was pending preliminary
investigation, Lieutenant Orais, in obedience to an order of the
Provincial Commander of Tayabas, moved for the temporary
dismissal of the case. This motion was granted by the justice of
the peace of Calauag on May 20, 1935, and the case thus
dismissed.

At the instance of the petitioner herein, Fortunato N. Suarez,

the deputy provincial fiscal of Tayabas, Perfecto R. Palacio, in
turn charged Lieutenant Vivencio Orais and Damian Jimenez
in the justice of the peace court of Calauag with the crime of
arbitrary detention committed, according to the information
under date of July 8, 1935, as follows:
33
That on or about the 9th day of May, 1935, in the municipality
of Calauag, Province of Tayabas, P.I., and within the
jurisdiction of this Court, the accused Vivencio Orais being
then a public officer to wit: a second lieutenant of the Philippine
Constabulary duly appointed and qualified as such and
detailed in the Province of Tayabas, without warrant of arrest
and without any legal ground whatsoever, moved by personal
grudge and ill-feeling which he entertained against Attorney
Fortunato Suarez, did, then and there willfully, unlawfully and
feloniously arrest and detain said Attorney Fortunato Suarez in
the train while the latter was going to Calauag, and with the
purpose of concealing the illegality of said arrest and detention
of said Fortunato Suarez said accused Vivencio Orais
conniving with the other accused, Damian Jimenez, justice of
the peace of the said municipality, prepared and subscribed
under oath before said Fortunato Suarez with the commission
of the crime of sedition; that the said justice of the peace
Damian Jimenez, conniving with the other accused Vivencio
Orais with the same purpose of concealing the illegality of the
arrest and detention of said Fortunato Suarez, without legal
grounds whatsoever willfully and unlawfully issued an order
declaring that there were merits in the complaint thereby
sanctioning the illegal and unjust arrest and detention of
Fortunato Suarez who was kept in the municipal jail of Calauag
for eight hours.
The justice of the peace of Calauag, being one of the accused,
the preliminary examination was conducted by the justice of
the peace of Lopez, Tayabas, who thereafter bound the
defendants over to the Court of First Instance, where the case
was docketed as criminal case No. 6426. While the case was
pending in the latter court, on petition, of the accused, the
provincial fiscal of Tayabas, Ramon Valdez y Nieto,
reinvestigated the case. After such reinvestigation, he filed on
April 23, 1936, a motion for the dismissal of the case.
Fortunato N. Suarez, the petitioner herein, on May 5, 1936,
asked the court to appoint Attorney Godofredo Reyes as acting
provincial fiscal to handle the prosecution, alleging, among
other things, that the provincial fiscal had no courage to
prosecute the accused. On May 11, 1936, Attorney Godofredo
Reyes entered his appearance as private prosecutor, and
vigorously objected to the motion of dismissal filed by the
provincial fiscal. The Bar Association of Tayabas, through its
president, Emiliano A. Gala, entered its appearance as amicus
curiae and likewise objected to the dismissal of the case. On
August 14, 1936, the then presiding judge of Branch I of the
Court of First Instance of Tayabas, Hon. Ed. Gutierrez David,
after hearing, denied the motion, ruling that there was prima
facie case against the accused. The court, upon petitioner of
the provincial fiscal, designated Deputy Provincial Fiscal
Perfecto R. Palacio to handle the prosecution. But Fiscal
Palacio, being apparently of the same opinion as the provincial
fiscal, declined to proceed, and moved that a practicing
attorney or a competent attorney in the Bureau of Justice be
designated in his stead. Accordingly, the provincial fiscal of
Sorsogon, Jacinto Yamson, at the request of the judge a quo
was assigned by the Department of Justice to handle the
prosecution of the case. Fiscal Yamson after going over the
case likewise entered a nolle prosequi. So, on September 23
1936, he moved for reconsideration of the court's order of
August 14, 1936, denying the motion for dismissal presented
by the provincial fiscal. Attorney Godofredo Reyes again
vigorously objected to this motion on the ground that there was
sufficient proof to warrant the prosecution of the accused. The
case in this state when Judge Emilio Pena was appointed to
the place of Judge Gutierres David. Later, Judge Serviliano
Platon, one of the respondents herein, was appointed to
preside over case No. 6426 corresponded, and the case was
thus transferred to that sala for action. Judge Platon, after
consideration of all the facts and proofs submitted in the case,
considered the court's order of August 14, 1936, and dismissed
the case, holding that the evidence was insufficient to convict
the accused of the crime charged. From this order, the
petitioner herein appealed to this Court and the case was here
docketed as G.R. No. 45431. On June 30, by a closely divided
court, the appeal was dismissed.
The petitioner has now filed with this Court the present petition,
in which, as stated in the opening paragraph of this decision,
we are asked to issue the peremptory writ of mandamus to
compel the respondent judge to reinstate the criminal case
which had been ordered dismissed by the said judge. The
petitioner gives the following grounds for the issuance of said
writ:
Que el mencionado Juez Hon. Servillano Platon incurrio en un
abuso manifiesto de discrecion al sobreseer la mencionada
causa contra los otros dos recurridos Vivencio Orais y Damian
Jimenez, despues de que el Juzgado de Paz de Lopez habia
declarado que existen meritos para proseguirse contra los
mismos y despues de que un Juez de Primera Instancia de la
misma categoria que el Juez Platon habia rehusado sobreseer
la causa por creer que existian meritos para proceder contra
los acusados.
Que el mencionado Juez Hon. Servillano Platon incurrio en un
abuso grave de discrecion por cuanto que las pruebas
existentes en la causa, en las cuales se fundo el fiscal
provincial al presentar la querella en el Juzgado de Paz,
demuestran de un modo claro y concluyente el delito cometido
y la responsibilidad de los acusados. [Las expresadas pruebas
constan a paginas 65 al 106 del adjunto alegato anexo ("A").]
Que el Hon. Servillano Platon incurrio en un grave abuso de
discrecion al juzgar dichas pruebas con un criterio de un
Tribunal "sentenciador" cuando que su unica mision era
considerarlas bajo el criterio de un tribunal meramente
"investigador". (E.U. vs. Barredo, 32 Jur. Fil., 462, 482.)
Should the writ of mandamus prayed for be issued? We
observe that after the filing of the information by the provincial
fiscal of Tayabas for arbitrary detention against Lieutenant
Orais and the justice of the peace of Lopez, the same fiscal
moved for the dismissal of the case, because 'despues' de una
reinvestigacion de los hechos que dieron margen a la presente
causa, y examinada la misma con la debida atencion que su
importancia require asi como las circunstancias del caso, ha
llegado a la conclusion de que no hay base justificativa para la
prosecucion de esta causa." The grounds for this action of the
provincial fiscal are stated in his said motion for dismissal of
April 23, 1936:
En sintesis, los hechos son: que el dia 9 de mayo de 1935, en
ocasion en que el abogado Fortunato N. Suarez y el teniente
Vivencio Orais de la constabularia, se encontraron en el tren
que iba a Calauag, aquel para defender a los sakdalistas
acusados en este municipio, y este para atender a sus
deberes officiales en relacion con el orden publico algo
anormal, por causa de los mismos sakdalistas en dicho
municipio de Calauag, ambos tuvieron un cambio de palabras
con motivo del mismo asunto que les llevaba alli, y por haber
el abogado Suarez proferido en tono acalorado, de que los
sakdalistas estaban perseguidos en Calauag por las
autoridades municipales y la constabularia, y que era un abuso
de las autoridades dicha persecusion, trayendo al propio
tiempo a colacion lo ocurrido en los municipios de Cabuyao y
Sta Rosa de la Provincia de Laguna, que se levantaron contra
el gobierno por los abusosy matanzas de sakdalistas en
dichos pueblos, y que lo mismo podia tenerlugar en esta
Provincia de Tayabas, y que el podia incitar a lossakdalistas,
teniendo en cuenta que con anterioridad el teniente Oraishabia
recibido informes de que los sakdalistas en Calauag habian
sido entrevistados por Tomas Ruedas, uno de los acusados en
el municipiode Sariaya por el delito de conspiracion para
cometer sedicion, que el abogado ayudaria a los sakdalistas
34
incintandoles a la sedicion,fue el motivo por el cual el arresto
al abogado Suarez, conduciendoleal municipio como asi lo
hizo con respecto a Tomas Ruedas, quien salio al encuentro
de Suarez cuando llego a la estacion del tren en Calauag,
diciendo a este que ya tenia arreglado a los sakdalistas en
Calauag. Que despues de haberles arrestado, presento una
denuncia contra estos por el delito de sedicion, en el juzgado
de paz de Calauag, aunque por instrucciones de sus
superiores, dicho Teniente Vivencio Orais pidio el
sobreseimiento provisional de su denuncia.
Aunque el abogado Suarez niega que el haya profiredo
palabras sediciosas, ni que haya incitado a los sakdalistas a
actos de violenciacontra el gobierno constituido o contra las
autoridades y oficiales, sin embargo, de las declaraciones de
los testigos tanto de la acusacioncomo de la defensa en lo que
son consistentes, se desprende claramente que el abogado
Suarez ha hecho manifestaciones que pueden considerarse
como sediciosas y subversivas, maxime teniendo en
consideracion el estado caotico porque atravesaba el
municipio de Calauag con motivo de la campana ordenada
porel gobierno contra los sakdalistas, a raiz de los disturbiosy
desordenes publicos que tuvieron lugar en los municipios de
Cabuyao y Sta. Rosa.
La presente causa se ha iniciado a denuncia del abogado Sr.
Godofredo Reyes contra el teniente Vivencio Orais de la
constabularia y el juez de paz Damian L. Jimenez, por el delito
de detencion arbitraria.
El delito de detencion arbitraria esta previsto y castigado en el
articulo 124 del Codigo Penal Revisado, que dice asi:
El funcionario o empleado publico que detuviere a una
persona sinmotivo legal alguno sera castigado; etc. . .
Sin perder de vista que la base angular de todos los
procesoscriminales son los delitos, y que a la acusacion
corresponde determinarexactamente si se ha cometido o no el
delito, el que suscribe, haanalizado este extremo, relacionando
los hechos que determinaron laalegada detencion arbitraria de
que fue objecto el abogado FortunatoN. Suarez, con las
circunstancias y los antecedentes de la situacion porque
atravesaba entonces la Provincia de Tayabas al igual que la
Provincia de Laguna, acondicionandolos con las palabras
proferidas porel abogado Suarez que si en su concepto no son
sediciosas y subversivas,por lo menos eran abusivas para con
las autoridades del gobierno, especialmente con las de la
Provincia de Tayabas a las cuales se referian. Asi entendido el
aspecto legal de la cuestion, y haciendo aplicacion de lo que
nos dice la misma ley en lo en que consiste la detencion
arbitraria, que para que exista este delito, la detencion tenia
que haber sido sin motivo legal alguno, creemos que habia
algun motivo legal para la detencion del abogado Sr. Suarez y
su companero Tomas Ruedas, y estaba justificada por haber
ellos mismos dado lugar a ello. (E.U. vs. Vallejo y otro, 11 Jur.
Fil., 202; E.U. vs. Santos, 36 Jur. Fil., 909.)
We have not overlooked the fact that this motion for dismissal
was denied by Judge Gutierrez David of August 14, 1936. It
appears, however, that subsequently Fiscal Yamsom who, as
stated above was assigned by the Department of Justice to
conduct the prosecution of the case, moved for reconsideration
of the Court's order of August 14, 1936, denying the motion for
dismissal. Judge Servillano Platon granted the motion for
reconsideration and dismissed the case. In this motion for
reconsideration not only does Fiscal Yamson reiterate the
arguments advanced by Fiscal Valdez y Nieto in the latter's
motion for dismissal, but adds:
(a) En lo que respecta al acusado Teniente Orais, no existe
prueba alguna en los autos de esta causa que dicho acusado
haya arrestado al abogado Suarez y Tomas Ruedas,
solamente por el mero gusto de arrestarles. Tampoco existe
pruebas de que el teniente Orais haya sido inducido por
motivos de venganza o resentimiento alguno contra dicho
abogado Suarez y Tomas Ruedas al arrestales en el dia de
autos. Aunque es verdad que el Teniente Orais ha sido
acusado ante el Juzgado de pazde Sariaya por 'abusos de
autoridad', sin embargo, no consta en los autos de dicha causa
que el abogado Suarez y Tomas Ruedas hayan intervenido
como abogado ni parte ofendida o testigos en la misma, por
tanto, no vemos razon alguna para que el Teniente Orais
tenga motivos de vengarse de estos por dicha causa. (Vease
pag. 1, Anexo O.) A falta de prueba sobre estos hechos, en
nuestra humilde opinion, existe a favor de Teniente Orais la
presuncion de haber cumplidocon su deber al arrestar al
abogado Fortunato N. Suarez y Tomas Ruedas, teniendo en
cuenta las circunstancias extraordinarias reinantes entonces
en Calauag a raiz de los disturbios y desordenes publicos que
tuvieron lugar en los municipios de Cabuyao y Sta. Rosa de la
Provincia de Laguna, dias antes de ocurrir el suceso de autos.
Se debe tener en cuenta, ademas, el hecho de que despues
de haber arrestado al abogado Fortunato N. Suarez y Tomas
Ruedas, el aqui acusado Teniente Vivencio Orais presento
denuncia inmediatamente ante su coacusado Damian
Jimenez, juez de paz de Calauag, por infraccion del articulo
142 del Codigo Penal Revisado.
We cannot overemphasize the necessity of close scrutiny and
investigation of 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 Mr. Justice Sutherland of the Supreme Court of
the United States, the prosecuting 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 two fold aim of which
is that guilt shall not escape or innocence suffer. He may
prosecute with earnestness and vigor indeed, he should do
so. But, while he may strike hard 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.)
Considering all the circumstances, we cannot say that Judge
Servillano Platon, in granting the motion for the dismissal of the
case for arbitrary detention against Lieutenant Orais and the
justice of the peace of Lopez, abused his discretion so
flagrantly as to justify, in the interest of justice, a departure
from the well-settled rule that an inferior tribunal in the
performance of a judicial act within the scope of its jurisdiction
and discretion cannot be controlled by mandamus. This is
especially true in a matter involving the examination of
evidence and the decision of questions of law and fact, since
such a duty is not ministerial. (High, Extraordinary Legal
Remedies, sec. 156, pp. 173-175). Upon the other hand, it
should be observed that in the case of Lieutenant Orais, in the
face of the circumstances surrounding the arrest as set forth in
the two motions for dismissal by the provincial fiscal of
Tayabas, which facts and circumstances must have been
investigated and duly weighed and considered by the
respondent judge of the Court of First Instance of Tayabas, the
arrest effected by Lieutenant Orais cannot be said to have be
entirely unjustified. If, "under trying circumstances and in a
zealous effort to obey the orders of his superior officer and to
enforce the law, a peace officer makes a mere mistake in good
faith, he should be exculpated. Otherwise, the courts will put a
premium on crime and will terrorize peace officers through a
35
fear of themselves violating the law. See generally Voorhees
on Arrest; 5 Corpus Juris, pp. 399, 416; 2 R.C.L., 450. (United
States vs. Santos, 36 Phil., 853, 855.)"
The petition is hereby dismissed, without pronouncement
regarding cost. So ordered.
Avancea, C.J., Villa-Real, Diaz and Concepcion, JJ., concur.
Separate Opinions
MORAN, J., dissenting:
The majority decision takes for granted that which precisely is
in issue in this case.
In the morning of May 9, 1935, the accused, Lieutenant
Vivencio Orais, and Attorney Fortunato Suarez were both in
the train on their way to Calauag, Tayabas. In the conversation
which ensued between them, Attorney Suarez made certain
remarks about the abuses of authority committed by the
officers of the Government who conducted the raid against the
Sakdalistas at Sariaya. Upon inquiry of Lieutenant Orais as to
what party Attorney Suarez belonged, and, pressed upon to
state whether or not he was a Sakdalista, Attorney Suarez
replied "may be". On the strength of these facts, Lieutenant
Orais arrested Attorney Suarez for the alleged offense of
uttering seditious words, and conducted him to the municipal
building of Calauag and there lodged him in jail. He filed in the
justice of the peace court of the same municipality an
information against Attorney Suarez for uttering seditious
words, in violation of article 142 of then Revised Penal Code.
On the day following, Lieutenant Orais, acting under the
instruction of his superior, moved for the dismissal of the case.
Thereafter, the deputy provincial fiscal of Tayabas, at the
instance of Fortunato Suarez, filed an information against
Lieutenant Orais and Damian Jimemez, the latter as justice of
the peace of Calauag, Tayabas, for the crime of arbitrary
detention, the information reading as follows:
That on or about the 9th day of May, 1935, in the municipality
of Calauag, Province of Tayabas, P.I., and within the
jurisdiction of this Court, the accused Vivencio Orais being
then a public officer to wit: a second lieutenant of the Philippine
Constabulary duly appointed and qualified as such and
detailed in the province of Tayabas, without any legal ground
whatsoever, moved by personal grudge and ill-feeling which he
entertained against Attorney Fortunato Suarez, did, then and
there willfully, unlawfully and feloniously arrest and detain said
Attorney Fortunato Suarez in the train while the latter was
going to Calauag; and with the purpose of concealing the
illegality of said arrest and detention of said Fortunato Suarez
said accused Vivencio Orais conniving with the other accused
Damian Jimenez, justice of the peace of said municipality,
prepared and subscribed under oath before said justice of the
peace a complaint falsely charging said Fortunato Suarez with
the commission of the crime of sedition; that the said justice of
the peace Damian Jimenez, conniving with the other accused
Vivencio Orais with the same purpose of concealing the
illegality of the arrest and detention of said Fortunato Suarez,
without legal grounds whatsoever willfully and unlawfully
issued an order declaring that there were merits in the
complaint thereby sanctioning the illegal and unjust arrest and
detention of Fortunato Suarez who was kept in the municipal
jail of Calauag for eight hours.
The justice of the peace of Lopez, Tayabas, conducted the
preliminary investigation, and, thereafter, remanded the case
to the Court of First Instance. On April 23, 1936, the provincial
fiscal moved for the dismissal of the case upon the alleged
ground, that after a supposed reinvestigation, the new facts
established therein disclose no sufficient evidence to sustain
the information. The motion was overruled by Judge Gutierrez
David, then presiding the second branch of the Court of First
Instance of Tayabas. Jacinto Yamson, appointed as special
fiscal to take charge of the case, moved for the reconsideration
of the order of Judge Gutierrez David. To this motion, Attorney
Suarez, through counsel, interposed an opposition. Judge
Servillano Platon, then presiding the first branch of the Court of
First Instance of Tayabas, acceded to the motion and
dismissed the information. From this order, Attorney Suarez
appealed, but the appeal was dismissed by this Court on the
ground that mandamus was the proper remedy. Accordingly,
the present action is filed in this Court.
The sole question here involved is whether or not, according to
the evidence in the hands of the prosecution, there is sufficient
ground to proceed with the criminal case for arbitrary detention
against Lieutenant Vivencio Orais and Justice of the Peace
Damian Jimenez. A close examination of such evidence, which
is attached to the record, will disclose that the arrest of
Fortunato Suarez by Lieutenant Orais in the morning of May 9,
1935, was prompted obviously, not by official duty, but by
personal resentment against certain statements made by the
former. I have taken pains to scrutinize carefully the
testimonies of all the witnesses who testified in the preliminary
investigation, and they show nothing seditious in the
utterances of Attorney Suarez on the occasion in question. My
conclusion, then, is that the detention of Attorney Suarez by
Lieutenant Orais was arbitrary, and that the charge made
against Lieutenant Orais for arbitrary detention is well founded
on facts.
The fiscal, in moving for the dismissal of the case before the
Court of First Instance of Tayabas, mentioned a reinvestigation
conducted by him of the case, in which he supposedly found a
new evidence warranting its dismissal. Counsel for Attorney
Fortunato Suarez, however, insisted on the production of such
new evidence before the court, but the prosecution could not
respond to such demand. This is an indication that the
supposed additional evidence never existed.
But the majority, instead of deciding the issue as to whether or
not the evidence in the hands of the prosecution was sufficient
to proceed with the charge for arbitrary detention, takes for
granted that such evidence was not sufficient, relying upon the
assumption that the "circumstances surrounding the arrest as
set forth in the two motions for dismissal by the provincial fiscal
of Tayabas . . . must have been investigated and duly weighed
and considered by the respondent judge of the Court of First
Instance of Tayabas." In other words, the majority assumes
that which is the subject of the petitioner's challenge, which is
tantamount to a refusal to consider his complaint after he has
been told that he may come to this court by mandamus
proceedings.
Although a broad discretion must be conceded to prosecuting
attorneys and trial courts in the determination of sufficient
grounds for dismissing or continuing a criminal prosecution, yet
when, as in this case, the basis for the action of both officers
fiscal and judge is produced in this court, and we are
called upon to determine whether, on the basis of such
evidence and determine the question at issue. And, in the
present case, it is my opinion that the evidence we have in the
record sufficiently shows that the prosecution for arbitrary
detention against Lieutenant Orais must take its course, and
that its dismissal without trial by the Court of First Instance is
without basis on facts and constitutes an abuse of discretion.
I agree, however, that there is no reason for including in the
charge for arbitrary detention the justice of the peace of
Calauag, Damian Jimenez. The evidence shows no connection
between him and Lieutenant Orais in the arbitrary arrest of
Attorney Fortunato Suarez.
My vote, therefore, is that the petition for mandamus must be
granted with respect to the prosecution against Lieutenant
36
Vivencio Orais, but denied with respect to the prosecution
against Damian Jimenez.
Imperial, J., concurs in the result.
EN BANC
DIANA RAMOS, Complainant,
-versus-
ATTY. JOSE R. IMBANG, Respondent.
A. C. No. 6788 (Formerly, CBD 382)
August 23, 2007
RESOLUTION
PER CURIAM:
This is a complaint for disbarment or suspension against Atty.
Jose R. Imbang for multiple violations of the Code of
Professional Responsibility.
THE COMPLAINT
In 1992, the complainant Diana Ramos sought the assistance
of respondent Atty. Jose R. Imbang in filing civil and criminal
actions against the spouses Roque and Elenita Jovellanos.
She gave respondent P8,500 as attorney's fees but the latter
issued a receipt for P5,000 only.
The complainant tried to attend the scheduled hearings of her
cases against the Jovellanoses. Oddly, respondent never
allowed her to enter the courtroom and always told her to wait
outside. He would then come out after several hours to inform
her that the hearing had been cancelled and rescheduled. This
happened six times and for each appearance in court,
respondent charged her P350.
After six consecutive postponements, the complainant became
suspicious. She personally inquired about the status of her
cases in the trial courts of Bian and San Pedro, Laguna. She
was shocked to learn that respondent never filed any case
against the Jovellanoses and that he was in fact employed in
the Public Attorney's Office (PAO).
RESPONDENT'S DEFENSE
According to respondent, the complainant knew that he was in
the government service from the very start. In fact, he first met
the complainant when he was still a district attorney in the
Citizen's Legal Assistance Office (predecessor of PAO) of
Bian, Laguna and was assigned as counsel for the
complainant's daughter.
In 1992, the complainant requested him to help her file an
action for damages against the Jovellanoses.[7] Because he
was with the PAO and aware that the complainant was not an
indigent, he declined.[8] Nevertheless, he advised the
complainant to consult Atty. Tim Ungson, a relative who was a
private practitioner.[9] Atty. Ungson, however, did not accept
the complainant's case as she was unable to come up with the
acceptance fee agreed upon.[10] Notwithstanding Atty.
Ungson's refusal, the complainant allegedly remained
adamant. She insisted on suing the Jovellanoses. Afraid that
she might spend the cash on hand, the complainant asked
respondent to keep the P5,000 while she raised the balance of
Atty. Ungson's acceptance fee.
A year later, the complainant requested respondent to issue an
antedated receipt because one of her daughters asked her to
account for the P5,000 she had previously given the
respondent for safekeeping.[12] Because the complainant was
a friend, he agreed and issued a receipt dated July 15, 1992.
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.
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.
The CBD noted that the receipt[17] was issued on July 15,
1992 when respondent was still with the PAO.[18] It also noted
that respondent described the complainant as a shrewd
businesswoman and that respondent was a seasoned trial
lawyer. For these reasons, the complainant would not have
accepted a spurious receipt nor would respondent have issued
one. The CBD rejected respondent's claim that he issued the
receipt to accommodate a friend's request.[19] It found
respondent guilty of violating the prohibitions on government
lawyers from accepting private cases and receiving lawyer's
fees other than their salaries. The CBD concluded that
respondent violated the following provisions of the Code of
Professional Responsibility:
Rule 1.01. A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct.
Rule 16.01. A lawyer shall account for all money or property
collected or received for or from a client.
Rule 18.01. A lawyer should not undertake a legal service
which he knows or should know that he is not qualified to
render. However, he may render such service if, with the
37
consent of his client, he can obtain as collaborating counsel a
lawyer who is competent on the matter.
Thus, it recommended respondent's suspension from the
practice of law for three years and ordered him to immediately
return to the complainant the amount of P5,000 which was
substantiated by the receipt.[21]
The IBP Board of Governors adopted and approved the
findings of the CBD that respondent violated Rules 1.01, 16.01
and 18.01 of the Code of Professional Responsibility. It,
however, modified the CBD's recommendation with regard to
the restitution of P5,000 by imposing interest at the legal rate,
reckoned from 1995 or, in case of respondent's failure to return
the total amount, an additional suspension of six months.
THE COURT'S RULING
We adopt the findings of the IBP with modifications.
Lawyers are expected to conduct themselves with honesty and
integrity.[23] More specifically, lawyers in government service
are expected to be more conscientious of their actuations as
they are subject to public scrutiny. They are not only members
of the bar but also public servants who owe utmost fidelity to
public service.
Government employees are expected to devote themselves
completely to public service. For this reason, the private
practice of profession is prohibited. Section 7(b)(2) of the Code
of Ethical Standards for Public Officials and Employees
provides:
Section 7. Prohibited Acts and Transactions. -- In addition to
acts and omissions of public officials and employees now
prescribed in the Constitution and existing laws, the following
constitute prohibited acts and transactions of any public official
and employee and are hereby declared unlawful:
xxx xxx xxx
(b) Outside employment and other activities related thereto,
public officials and employees during their incumbency shall
not:
xxx xxx xxx
(1) Engage in the private practice of profession unless
authorized by the Constitution or law, provided that such
practice will not conflict with their official function.
Thus, lawyers in government service cannot handle private
cases for they are expected to devote themselves full-time to
the work of their respective offices.
In this instance, respondent received P5,000 from the
complainant and issued a receipt on July 15, 1992 while he
was still connected with the PAO. Acceptance of money from a
client establishes an attorney-client relationship.[26]
Respondent's admission that he accepted money from the
complainant and the receipt confirmed the presence of an
attorney-client relationship between him and the complainant.
Moreover, the receipt showed that he accepted the
complainant's case while he was still a government lawyer.
Respondent clearly violated the prohibition on private practice
of profession
Aggravating respondent's wrongdoing was his receipt of
attorney's fees. The PAO was created for the purpose of
providing free legal assistance to indigent litigants. Section
14(3), Chapter 5, Title III, Book V of the Revised Administrative
Code provides:
Sec. 14. xxx
The PAO shall be the principal law office of the Government in
extending free legal assistance to indigent persons in criminal,
civil, labor, administrative and other quasi-judicial cases.
As a PAO lawyer, respondent should not have accepted
attorney's fees from the complainant as this was inconsistent
with the office's mission.[29] Respondent violated the
prohibition against accepting legal fees other than his salary.
Canon 1 of the Code of Professional Responsibility provides:
CANON 1. A LAWYER SHALL UPHOLD THE
CONSTITUTION, OBEY THE LAWS OF THE LAND AND
PROMOTE RESPECT 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.
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.
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
38
Philippines and on the Office of the Court Administrator for
circulation to all courts in the country.
SO ORDERED.
EN BANC [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., 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 the
Sandiganbayan. 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.
On February 5, 1991, the PCGG filed motions to disqualify
respondent Mendoza as counsel for respondents Tan, et al.
with the Second Division of the Sandiganbayan in Civil Case
Nos. 0005[8] and 0096-0099.[9] The motions alleged that
respondent Mendoza, as then Solicitor 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. 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
39
during his term as Solicitor General. 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. The PCGG did not seek any
reconsideration of the ruling.
It appears that Civil Case Nos. 0096-0099 were transferred
from the Sandiganbayans Second Division to the Fifth
Division.[15] In its resolution dated July 11, 2001, the Fifth
Division of the Sandiganbayan denied the other PCGGs
motion to disqualify respondent Mendoza.[16] It adopted the
resolution of its Second Division dated April 22, 1991, and
observed that the arguments were the same in substance as
the motion to disqualify filed in Civil Case No. 0005. The
PCGG sought reconsideration of the ruling but its motion was
denied in its resolution dated December 5, 2001.[17]
Hence, the recourse to this Court by the PCGG assailing the
resolutions dated July 11, 2001 and December 5, 2001 of the
Fifth Division of the Sandiganbayan via a petition for certiorari
and prohibition under Rule 65 of the 1997 Rules of Civil
Procedure.[18] The PCGG alleged that the Fifth Division acted
with grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the assailed resolutions contending that:
1) Rule 6.03 of the Code of Professional Responsibility
prohibits a former government lawyer from accepting
employment in connection with any matter in which he
intervened; 2) the prohibition in the Rule is not time-bound; 3)
that Central Bank could not waive the objection to respondent
Mendozas appearance on behalf of the PCGG; and 4) the
resolution in Civil Case No. 0005 was interlocutory, thus res
judicata does not apply.
The petition at bar raises procedural and substantive issues of
law. In view, however, of the import and impact of Rule 6.03 of
the Code of Professional Responsibility to the legal profession
and the government, we shall cut our way and forthwith resolve
the substantive issue.
I Substantive Issue
The key issue is whether Rule 6.03 of the Code of Professional
Responsibility applies to respondent Mendoza. Again, the
prohibition states: A lawyer shall not, after leaving government
service, accept engagement or employment in connection with
any matter in which he had intervened while in the said
service.
I.A. The history of Rule 6.03
A proper resolution of this case necessitates that we trace the
historical lineage of Rule 6.03 of the Code of Professional
Responsibility
In the seventeenth and eighteenth centuries, ethical standards
for lawyers were pervasive in England and other parts of
Europe. The early statements of standards did not resemble
modern codes of conduct. They were not detailed or collected
in one source but surprisingly were comprehensive for their
time. The principal thrust of the standards was directed
towards the litigation conduct of lawyers. It underscored the
central duty of truth and fairness in litigation as superior to any
obligation to the client. The formulations of the litigation duties
were at times intricate, including specific pleading standards,
an obligation to inform the court of falsehoods and a duty to
explore settlement alternatives. Most of the lawyer's other
basic duties -- competency, diligence, loyalty, confidentiality,
reasonable fees and service to the poor -- originated in the
litigation context, but ultimately had broader application to all
aspects of a lawyer's practice.
The forms of lawyer regulation in colonial and early 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.
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.
Toward the end of the nineteenth century, a new form of
ethical standards began to guide lawyers in their practice the
bar association code of legal ethics. The bar codes were
detailed ethical standards formulated by lawyers for lawyers.
They combined the two primary sources of ethical guidance
from the nineteenth century. Like the academic discourses, the
bar association codes gave detail to the statutory statements of
duty and the oaths of office. Unlike the academic lectures,
however, the bar association codes retained some of the
official imprimatur of the statutes and oaths. Over time, the bar
association codes became extremely popular that states
adopted them as binding rules of law. Critical to the
development of the new codes was the re-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.
In 1887, Alabama became the first state with a comprehensive
bar association code of ethics. The 1887 Alabama Code of
40
Ethics was the model for several states codes, and it was the
foundation for the American Bar Association's (ABA) 1908
Canons of Ethics.
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.
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.
In 1946, the Philippine Bar Association again adopted as its
own Canons 33 to 47 of the ABA Canons of Professional
Ethics.
By the middle of the twentieth century, there was growing
consensus that the ABA Canons needed more meaningful
revision. In 1964, the ABA President-elect Lewis Powell asked
for the creation of a committee to study the adequacy and
effectiveness of the ABA Canons. The committee
recommended that the canons needed substantial revision, in
part because the ABA Canons failed to distinguish between the
inspirational and the proscriptive and were thus unsuccessful
in enforcement. The legal profession in the United States
likewise observed that Canon 36 of the ABA Canons of
Professional Ethics resulted in unnecessary disqualification of
lawyers for negligible participation in matters during their
employment with the government.
The unfairness of Canon 36 compelled ABA to replace it in the
1969 ABA Model Code of Professional Responsibility. The
basic ethical principles in the Code of Professional
Responsibility were supplemented by Disciplinary Rules that
defined minimum rules of conduct to which the lawyer must
adhere.[34] In the case of Canon 9, DR 9-101(b)[35] became
the applicable supplementary norm. The drafting committee
reformulated the canons into the Model Code of Professional
Responsibility, and, in August of 1969, the ABA House of
Delegates approved the Model Code.
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.
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.
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. 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 phrase
investigated 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
41
the Solicitor General. The PCGG relates the following acts of
respondent Mendoza as constituting the matter where he
intervened as a Solicitor General, viz:
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 disqualify Atty. Mendoza as counsel for
respondents Tan, et al. The PCGG insists that Atty. Mendoza,
as then Solicitor General, actively intervened in the closure of
GENBANK by advising the Central Bank on how to proceed
with the said banks liquidation and even filing the petition for its
liquidation with the CFI of Manila.
As proof thereof, the PCGG cites the Memorandum dated
March 29, 1977 prepared by certain key officials of the Central
Bank, namely, then Senior Deputy Governor Amado R. Brinas,
then Deputy Governor Jaime C. Laya, then Deputy Governor
and General Counsel Gabriel C. Singson, then Special
Assistant to the Governor Carlota P. Valenzuela, then Asistant
to the Governor Arnulfo B. Aurellano and then Director of
Department of Commercial and Savings Bank Antonio T.
Castro, Jr., where they averred that on March 28, 1977, they
had a conference with the Solicitor General (Atty. Mendoza),
who advised them on how to proceed with the liquidation of
GENBANK. The pertinent portion of the said memorandum
states:
Immediately after said meeting, we had a conference with the
Solicitor General and he advised that the following procedure
should be taken:
1. Management should submit a memorandum to the Monetary
Board reporting that studies and evaluation had been made
since the last examination of the bank as of August 31, 1976
and it is believed that the bank can not be reorganized or
placed in a condition so that it may be permitted to resume
business with safety to its depositors and creditors and the
general public.
2. If the said report is confirmed by the Monetary Board, it shall
order the liquidation of the bank and indicate the manner of its
liquidation and approve a liquidation plan.
3. The Central Bank shall inform the principal stockholders of
Genbank of the foregoing decision to liquidate the bank and
the liquidation plan approved by the Monetary Board.
4. The Solicitor General shall then file a petition in the Court of
First Instance reciting the proceedings which had been taken
and praying the assistance of the Court in the liquidation of
Genbank.
The PCGG further cites the Minutes No. 13 dated March 29,
1977 of the Monetary Board where it was shown that Atty.
Mendoza was furnished copies of pertinent documents relating
to GENBANK in order to aid him in filing with the court the
petition for assistance in the banks liquidation. The pertinent
portion of the said minutes reads:
The Board decided as follows:
E. To authorize Management to furnish the Solicitor General
with a copy of the subject memorandum of the Director,
Department of Commercial and Savings Bank dated March 29,
1977, together with copies of:
1. Memorandum of the Deputy Governor, Supervision and
Examination Sector, to the Monetary Board, dated March 25,
1977, containing a report on the current situation of Genbank;
2. Aide Memoire on the Antecedent Facts Re: General Bank
and Trust Co., dated March 23, 1977;
3. Memorandum of the Director, Department of Commercial
and Savings Bank, to the Monetary Board, dated March 24,
1977, submitting, pursuant to Section 29 of R.A. No. 265, as
amended by P.D. No. 1007, a report on the state of insolvency
of Genbank, together with its attachments; and
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 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
42
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 functions to pay its liabilities as they
fall due in the usual and ordinary course of business. Provided,
however, That this shall not include the inability to pay of an
otherwise non-insolvent bank or non-bank financial
intermediary performing quasi-banking functions caused by
extraordinary demands induced by financial panic commonly
evidenced by a run on the bank or non-bank financial
intermediary performing quasi-banking functions in the banking
or financial community.
The appointment of a conservator under Section 28-A of this
Act or the appointment of a receiver under this Section shall be
vested exclusively with the Monetary Board, the provision of
any law, general or special, to the contrary notwithstanding.
(As amended by PD Nos. 72, 1007, 1771 & 1827, Jan. 16,
1981)
We hold that this advice given by respondent Mendoza on the
procedure to liquidate GENBANK is not the matter
contemplated by Rule 6.03 of the Code of Professional
Responsibility. ABA Formal Opinion No. 342 is clear as
daylight in stressing that the drafting, enforcing or interpreting
government or agency procedures, regulations or laws, or
briefing abstract principles of law are acts which do not fall
within the scope of the term matter and cannot disqualify.
Secondly, it can even be conceded for the sake of argument
that the above act of respondent Mendoza falls within the
definition of matter per ABA Formal Opinion No. 342. Be that
as it may, the said act of respondent Mendoza which is the
matter involved in Sp. Proc. No. 107812 is entirely different
from the matter involved in Civil Case No. 0096. Again, the
plain facts speak for themselves. It is given that respondent
Mendoza had nothing to do with the decision of the Central
Bank to liquidate GENBANK. It is also given that he did not
participate in the sale of GENBANK to Allied Bank. The matter
where he got himself involved was in informing Central Bank
on the procedure provided by law to liquidate GENBANK thru
the courts and in filing the necessary petition in Sp. Proc. No.
107812 in the then Court of First Instance. The subject matter
of Sp. Proc. No. 107812, therefore, is not the same nor is
related to but is different from the subject matter in Civil Case
No. 0096. Civil Case No. 0096 involves the sequestration of
the stocks owned by respondents Tan, et al., in Allied Bank on
the alleged ground that they are ill-gotten. The case does not
involve the liquidation of GENBANK. Nor does it involve the
sale of GENBANK to Allied Bank. Whether the shares of stock
of the reorganized Allied Bank are ill-gotten is far removed
from the issue of the dissolution and liquidation of GENBANK.
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 . . .)
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.
There are, therefore, two possible interpretations of the word
intervene. Under the first interpretation, intervene includes
participation in a proceeding even if the intervention is
irrelevant or has no effect or little influence.[43] Under the
second interpretation, intervene only includes an act of a
person who has the power to influence the subject
proceedings.[44] We hold that this second meaning is more
appropriate to give to the word intervention under Rule 6.03 of
the Code of Professional Responsibility in light of its history.
The evils sought to be remedied by the Rule do not exist where
the government lawyer does an act which can be considered
as innocuous such as x x x drafting, enforcing or interpreting
government or agency procedures, regulations or laws, or
briefing abstract principles of law.
In fine, the intervention cannot be insubstantial and
insignificant. Originally, Canon 36 provided that a former
government lawyer should not, after his retirement, accept
employment in connection with any matter which he has
investigated or passed upon while in such office or employ. As
aforediscussed, the broad sweep of the phrase which he has
investigated or passed upon resulted in unjust disqualification
of former government lawyers. The 1969 Code restricted its
latitude, hence, in DR 9-101(b), the prohibition extended only
to a matter in which the lawyer, while in the government
service, had substantial responsibility. The 1983 Model Rules
further constricted the reach of the rule. MR 1.11(a) provides
that a lawyer shall not represent a private client in connection
with a matter in which the lawyer participated personally and
substantially as a public officer or employee.
It is, however, alleged that the intervention of respondent
Mendoza in Sp. Proc. No. 107812 is significant and
substantial. We disagree. For one, the petition in the special
proceedings is an initiatory pleading, hence, it has to be signed
by respondent Mendoza as the then sitting Solicitor General.
For another, the record is arid as to the actual participation of
respondent Mendoza in the subsequent proceedings. Indeed,
the case was in slumberville for a long number of years. None
of the parties pushed for its early termination. Moreover, we
note that the petition filed merely seeks the assistance of the
43
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.
In interpreting Rule 6.03, the Court also cast a harsh eye on its
use as a litigation tactic to harass opposing counsel as well as
deprive his client of competent legal representation. The
danger that the rule will be misused to bludgeon an opposing
counsel is not a mere guesswork. The Court of Appeals for the
District of Columbia has noted the tactical use of motions to
disqualify counsel in order to delay proceedings, deprive the
opposing party of counsel of its choice, and harass and
embarrass the opponent, and observed that the tactic was so
prevalent in large civil cases in recent years as to prompt
frequent judicial and academic commentary.[48] Even the
United States Supreme Court found no quarrel with the Court
of Appeals description of disqualification motions as a
dangerous game.[49] In the case at bar, the new attempt to
disqualify respondent Mendoza is difficult to divine. The
disqualification of respondent Mendoza has long been a dead
issue. It was resuscitated after the lapse of many years and
only after PCGG has lost many legal incidents in the hands of
respondent Mendoza. For a fact, the recycled motion for
disqualification in the case at bar was filed more than four
years after the filing of the petitions for certiorari, prohibition
and injunction with the Supreme Court which were
subsequently remanded to the Sandiganbayan and docketed
as Civil Case Nos. 0096-0099.[50] At the very least, the
circumstances under which the motion to disqualify in the case
at bar were refiled put petitioners motive as highly suspect.
Similarly, the Court in interpreting Rule 6.03 was not
unconcerned with the prejudice to the client which will be
caused by its misapplication. It cannot be doubted that granting
a disqualification motion causes the client to lose not only the
law firm of choice, but probably an individual lawyer in whom
the client has confidence.[51] The client with a disqualified
lawyer must start again often without the benefit of the work
done by the latter.[52] The effects of this prejudice to the right
to choose an effective counsel cannot be overstated for it can
result in denial of due process.
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 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.
It is also submitted that the Court should apply Rule 6.03 in all
its strictness for it correctly disfavors lawyers who switch sides.
It is claimed that switching sides carries the danger that former
government employee may compromise confidential official
information in the process. But this concern does not cast a
shadow in the case at bar. As afore-discussed, the act of
respondent Mendoza in informing the Central Bank on the
procedure how to liquidate GENBANK is a different matter
from the subject matter of Civil Case No. 0005 which is about
the sequestration of the shares of respondents Tan, et al., in
Allied Bank. Consequently, the danger that confidential official
information might be divulged is nil, if not 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
44
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 any prescriptive period
and retroactively, at that. Their concern is legitimate and
deserves to be initially addressed by the IBP and our
Committee on Revision of the Rules of Court.
IN VIEW WHEREOF, the petition assailing the resolutions
dated July 11, 2001 and December 5, 2001 of the Fifth Division
of the Sandiganbayan in Civil Case Nos. 0096-0099 is denied.
No cost.
SO ORDERED.
EN BANC A.M. No. 08-6-352-RTC August 19, 2009
QUERY OF ATTY. KAREN M. SILVERIO-BUFFE, FORMER
Clerk of Court BRANCH 81, ROMBLON, ROMBLON ON
THE PROHIBITION FROM ENGAGING IN THE PRIVATE
PRACTICE OF LAW.
DECISION
BRION, J.:
This administrative matter started as a letter-query dated
March 4, 2008 of Atty. Karen M. Silverio-Buffe (Atty. Buffe)
addressed to the Office of the Court Administrator, which query
the latter referred to the Court for consideration. In the course
of its action on the matter, the Court discovered that the query
was beyond pure policy interpretation and referred to the
actual situation of Atty. Buffe, and, hence, was a matter that
required concrete action on the factual situation presented.
The query, as originally framed, related to Section 7(b)(2) of
Republic Act (R.A.) No. 6713, as amended (or the Code of
Conduct and Ethical Standards for Public Officials and
Employees). This provision places a limitation on public
officials and employees during their incumbency, and those
already separated from government employment for a period
of one (1) year after separation, in engaging in the private
practice of their profession. Section 7(b)(2) of R.A. No. 6713
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
shall constitute prohibited acts and transactions of any public
official and employee and are hereby declared to be unlawful:
(b) Outside employment and other activities related thereto.
Public officials and employees during their incumbency shall
not:
(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; or
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.
In her letter-query, Atty. Buffe posed these questions: Why
may an incumbent engage in private practice under (b)(2),
assuming the same does not conflict or tend to conflict with his
official duties, but a non-incumbent like myself cannot, as is
apparently prohibited by the last paragraph of Sec. 7? Why is
the former allowed, who is still occupying the very public
position that he is liable to exploit, but a non-incumbent like
myself who is no longer in a position of possible
abuse/exploitation cannot?
The query arose because Atty. Buffe previously worked as
Clerk of Court VI of the Regional Trial Court (RTC), Branch 81
of Romblon; she resigned from her position effective February
1, 2008. Thereafter (and within the one-year period of
prohibition mentioned in the above-quoted provision), she
engaged in the private practice of law by appearing as private
counsel in several cases before RTC-Branch 81 of Romblon.
Atty. Buffe alleged that Section 7(b)(2) of R.A. No. 6713 gives
preferential treatment to an incumbent public employee, who
may engage in the private practice of his profession so long as
this practice does not conflict or tend to conflict with his official
45
functions. In contrast, a public official or employee who has
retired, resigned, or has been separated from government
service like her, is prohibited from engaging in private practice
on any matter before the office where she used to work, for a
period of one (1) year from the date of her separation from
government employment.
Atty. Buffe further alleged that the intention of the above
prohibition is to remove the exercise of clout, influence or
privity to insider information, which the incumbent public
employee may use in the private practice of his profession.
However, this situation did not obtain in her case, since she
had already resigned as Clerk of Court of RTC-Branch 18 of
Romblon. She advanced the view that she could engage in the
private practice of law before RTC-Branch 81 of Romblon, so
long as her appearance as legal counsel shall not conflict or
tend to conflict with her former duties as former Clerk of Court
of that Branch.
Then Deputy Court Administrator (now Court Administrator)
Jose P. Perez made the following observations when the
matter was referred to him:
The general intent of the law, as defined in its title is to uphold
the time-honored principle of public office being a public trust.
Section 4 thereof provides for the norms of conduct of public
officials and employees, among others: (a) commitment to
public interest; (b) professionalism; and (c) justness and
sincerity. Of particular significance is the statement under
professionalism that [t]hey [public officials and employees]
shall endeavor to discourage wrong perceptions of their roles
as dispensers or peddlers of undue patronage.
Thus, it may be well to say that the prohibition was intended to
avoid any impropriety or the appearance of impropriety which
may occur in any transaction between the retired government
employee and his former colleagues, subordinates or superiors
brought about by familiarity, moral ascendancy or undue
influence, as the case may be.
Subsequently, in a Minute Resolution dated July 15, 2008, we
resolved to refer this case to the Office of the Chief Attorney
(OCAT) for evaluation, report and recommendation.[3] The
OCAT took the view that:
The premise of the query is erroneous. She interprets Section
7 (b) (2) as a blanket authority for an incumbent clerk of court
to practice law. Clearly, there is a misreading of that provision
of law and further observed:
The confusion apparently lies in the use of the term such
practice after the phrase provided that. It may indeed be
misinterpreted as modifying the phrase engage in the private
practice of their profession should be prefatory sentence that
public officials during their incumbency shall not be
disregarded. However, read in its entirety, such practice may
only refer to practice authorized by the Constitution or law or
the exception to the prohibition against the practice of
profession. The term law was intended by the legislature to
include a memorandum or a circular or an administrative order
issued pursuant to the authority of law.
The interpretation that Section 7 (b) (2) generally prohibits
incumbent public officials and employees from engaging in the
practice of law, which is declared therein a prohibited and
unlawful act, accords with the constitutional policy on
accountability of public officers stated in Article XI of the
Constitution
The policy thus requires public officials and employees to
devote full time public service so that in case of conflict
between personal and public interest, the latter should take
precedence over the former.
With respect to lawyers in the judiciary, the OCAT pointed to
Section 5, Canon 3 of the Code of Conduct for Court
Personnel the rule that deals with outside employment by an
incumbent judicial employee and which limits such outside
employment to one that does not require the practice of
law.The prohibition to practice law with respect to any matter
where they have intervened while in the government service is
reiterated in Rule 6.03, Canon 6 of the Code of Professional
Responsibility, which governs the conduct of lawyers in the
government service.
In view of the OCAT findings and recommendations, we issued
an En Banc Resolution dated November 11, 2008 directing the
Court Administrator to draft and submit to the Court a circular
on the practice of profession during employment and within
one year from resignation, retirement from or cessation of
employment in the Judiciary. We likewise required the
Executive Judge of the RTC of Romblon to (i) verify if Atty.
Buffe had appeared as counsel during her incumbency as clerk
of court and after her resignation in February 2008, and (ii)
submit to the Court a report on his verification.
In compliance with this our Resolution, Executive Judge
Ramiro R. Geronimo of RTC-Branch 81 of Romblon reported
the following appearances made by Atty. Buffe:
(1) Civil Case No. V-1564, entitled Oscar Madrigal Moreno, Jr.
et al. versus Leonardo M. Macalam, et al. on February 19,
2008, March 4, 2008, April 10, 2008 and July 9, 2008 as
counsel for the plaintiffs;
(2) Civil Case No. V-1620, entitled Melchor M. Manal versus
Zosimo Malasa, et al., on (sic) February, 2008, as counsel for
the plaintiff;
(3) Civil Case No. V-1396, entitled Solomon Y. Mayor versus
Jose J. Mayor, on February 21, 2008, as counsel for the
plaintiff; and
(4) Civil Case No. V-1639, entitled Philippine National Bank
versus Sps. Mariano and Olivia Silverio, on April 11, 2008 and
July 9, 2008, as counsel for the defendants.
Atty. Buffe herself was furnished a copy of our November 11,
2008 En Banc Resolution and she filed a Manifestation
(received by the Court on February 2, 2009) acknowledging
receipt of our November 11, 2008 Resolution. She likewise
stated that her appearances are part of Branch 81 records. As
well, she informed the Court that she had previously taken the
following judicial remedies in regard to the above query:
1. SCA No. 089119028 (Annex C), filed with Branch
54 of the RTC Manila, which had been dismissed without
prejudice on July 23, 2008 (Annex D) a recourse taken when
undersigned was still a private practitioner;
2. SCA No. 08120423 (Annex A), filed with Branch
17 of the RTC of Manila, which had been also dismissed (with
or without prejudice) on December 4, 2008 (Annex B) a
recourse taken when undersigned was already a public
prosecutor appearing before the same Branch 81, after she
took her oath of office as such on August 15, 2008.[Emphasis
supplied]
She also made known her intent to elevate the dismissal of the
above cases so that eventually, the Honorable Supreme Court
may put to rest the legal issue/s presented in the above
petitions which is, why is it that R.A. No. 6713, Sec. 7 (b)(2)
and last par. thereof, apparently contains an express
prohibition (valid or invalid) on the private practice of
undersigneds law profession, before Branch 81, while on the
other hand not containing a similar, express prohibition in
regard to undersigneds practice of profession, before the same
court, as a public prosecutor within the supposedly restricted 1-
year period?
46
OUR ACTION AND RULING
Preliminary Considerations
As we stated at the outset, this administrative matter confronts
us, not merely with the task of determining how the Court will
respond to the query, both with respect to the substance and
form (as the Court does not give interpretative opinions[9] but
can issue circulars and regulations relating to pleading,
practice and procedure in all courts[10] and in the exercise of
its administrative supervision over all courts and personnel
thereof[11]), but also with the task of responding to admitted
violations of Section 7 (b)(2) of R.A. No. 6713 and to multiple
recourses on the same subject.
After our directive to the Office of the Court Administrator to
issue a circular on the subject of the query for the guidance of
all personnel in the Judiciary, we consider this aspect of the
present administrative matter a finished task, subject only to
confirmatory closure when the OCA reports the completion of
the undertaking to us.
Atty. Buffes admitted appearance, before the very same
branch she served and immediately after her resignation, is a
violation that we cannot close our eyes to and that she cannot
run away from under the cover of the letter-query she filed and
her petition for declaratory relief, whose dismissal she
manifested she would pursue up to our level. We note that at
the time she filed her letter-query (on March 4, 2008), Atty.
Buffe had already appeared before Branch 81 in at least three
(3) cases. The terms of Section 7 (b)(2) of R.A. No. 6713 did
not deter her in any way and her misgivings about the fairness
of the law cannot excuse any resulting violation she committed.
In other words, she took the risk of appearing before her own
Branch and should suffer the consequences of the risk she
took. Nor can she hide behind the two declaratory relief
petitions she filed, both of which were dismissed, and her
intent to elevate the dismissal to this Court for resolution. The
first, filed before the RTC, Branch 54, Manila, was dismissed
on July 23, 2008 because the court declined to exercise the
power to declare rights as prayed for in the petition, as any
decision that may be rendered will be inutile and will not
generally terminate the uncertainty or controversy.[12] The
second, filed with the RTC, Branch 17, Manila, was dismissed
for being an inappropriate remedy after the dismissal ordered
by the RTC, Branch 54, Manila, on December 4, 2008.[13]
Under these circumstances, we see nothing to deter us from
ruling on Atty. Buffes actions, as no actual court case other
than the present administrative case, is now actually pending
on the issue she raised. On the contrary, we see from Atty.
Buffes recourse to this Court and the filing of the two
declaratory petitions the intent to shop for a favorable answer
to her query. We shall duly consider this circumstance in our
action on the case.
A last matter to consider before we proceed to the merits of
Atty. Buffes actions relates to possible objections on
procedural due process grounds, as we have not made any
formal directive to Atty. Buffe to explain why she should not be
penalized for her appearance before Branch 81 soon after her
resignation from that Branch. The essence of due process is
the grant of the opportunity to be heard; what it abhors is the
lack of the opportunity to be heard.[14] The records of this
case show that Atty. Buffe has been amply heard with respect
to her actions. She was notified, and she even responded to
our November 11, 2008 directive for the Executive Judge of
the RTC of Romblon to report on Atty. Buffes appearances
before Branch 81; she expressly manifested that these
appearances were part of the Branch records. Her legal
positions on these appearances have also been expressed
before this Court; first, in her original letter-query, and
subsequently, in her Manifestation. Thus, no due process
consideration needs to deter us from considering the legal
consequences of her appearances in her previous Branch
within a year from her resignation.
The Governing Law: Section 7 of R.A. No. 6713
Section 7 of R.A. No. 6713 generally provides for the
prohibited acts and transactions of public officials and
employees. Subsection (b)(2) prohibits them from engaging in
the private practice of their profession during their incumbency.
As an exception, a public official or employee 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.
The Section 7 prohibitions continue to apply for a period of one
year after the public official or employees resignation,
retirement, or separation from public office, except for the
private practice of profession under subsection (b)(2), which
can already be undertaken even within the one-year prohibition
period. As an exception to this exception, the one-year
prohibited period applies with respect to any matter before the
office the public officer or employee used to work with.
The Section 7 prohibitions are predicated on the principle that
public office is a public trust; and serve to remove any
impropriety, real or imagined, which may occur in government
transactions between a former government official or employee
and his or her former colleagues, subordinates or superiors.
The prohibitions also promote the observance and the efficient
use of every moment of the prescribed office hours to serve
the public.
Parenthetically, in the case of court employees, Section 7(b)(2)
of R.A. No. 6713 is not the only prohibition to contend with;
Section 5, Canon 3 of the Code of Conduct for Court
Personnel also applies. The latter provision provides the
definitive rule on the outside employment that an incumbent
court official or court employee may undertake in addition to
his official duties:
Outside employment may be allowed by the head of office
provided it complies with all of the following requirements:
(a) The outside employment is not with a person or entity that
practices law before the courts or conducts business with the
Judiciary;
(b) The outside employment can be performed outside of
normal working hours and is not incompatible with the
performance of the court personnels duties and
responsibilities;
(c) That outside employment does not require the practice of
law; Provided, however, that court personnel may render
services as professor, lecturer, or resource person in law
schools, review or continuing education centers or similar
institutions;
(d) The outside employment does not require or induce the
court personnel to disclose confidential information acquired
while performing officials duties
(e) The outside employment shall not be with the legislative
or executive branch of government, unless specifically
authorized by the Supreme Court.
Where a conflict of interest exists, may reasonably appear to
exist, or where the outside employment reflects adversely on
the integrity of the Judiciary, the court personnel shall not
accept outside employment. [Emphasis supplied]
In both the above discussed aspect of R.A. No. 6713 and the
quoted Canon 3, the practice of law is covered; the practice of
law is a practice of profession, while Canon 3 specifically
47
mentions any outside employment requiring the practice of law.
In Cayetano v. Monsod, 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 both provisions, a common objective
is to avoid any conflict of interest on the part of the employee
who may wittingly or unwittingly use confidential information
acquired from his employment, or use his or her familiarity with
court personnel still with the previous office.
After separation from the service, Section 5, Canon 3 of the
Code of Conduct for Court Personnel ceases to apply as it
applies specifically to incumbents, but Section 7 and its
subsection (b)(2) of R.A. No. 6713 continue to apply to the
extent discussed above. Atty. Buffes situation falls under
Section 7.
Atty. Buffes Situation
A distinctive feature of this administrative matter is Atty. Buffes
admission that she immediately engaged in private practice of
law within the one-year period of prohibition stated in Section
7(b)(2) of R.A. No. 6713. We find it noteworthy, too, that she is
aware of this provision and only objects to its application to her
situation; she perceives it to be unfair that she cannot practice
before her old office Branch 81 for a year immediately after
resignation, as she believes that her only limitation is in
matters where a conflict of interest exists between her
appearance as counsel and her former duties as Clerk of
Court. She believes that Section 7 (b)(2) gives preferential
treatment to incumbent public officials and employees as
against those already separated from government
employment.
Atty. Buffe apparently misreads the law. As the OCAT aptly
stated, she interprets Section 7 (b)(2) as a blanket authority for
an incumbent clerk of court to practice law. We reiterate what
we have explained above, that the general rule under Section
7 (b)(2) is to bar public officials and employees from the
practice of their professions; it is unlawful under this general
rule for clerks of court to practice their profession. By way of
exception, they can practice their profession if the Constitution
or the law allows them, but no conflict of interest must exist
between their current duties and the practice of their
profession. As we also mentioned above, no chance exists for
lawyers in the Judiciary to practice their profession, as they are
in fact expressly prohibited by Section 5, Canon 3 of the Code
of Conduct for Court Personnel from doing so. Under both the
general rule and the exceptions, therefore, Atty. Buffes basic
premise is misplaced.
As we discussed above, a clerk of court can already engage in
the practice of law immediately after her separation from the
service and without any period limitation that applies to other
prohibitions under Section 7 of R.A. No. 6713. The clerk of
courts limitation is that she cannot practice her profession
within one year before the office where he or she used to work
with. In a comparison between a resigned, retired or separated
official or employee, on the one hand, and an incumbent
official or employee, on the other, the former has the
advantage because the limitation is only with respect to the
office he or she used to work with and only for a period of one
year. The incumbent cannot practice at all, save only where
specifically allowed by the Constitution and the law and only in
areas where no conflict of interests exists. This analysis again
disproves Atty. Buffes basic premises.
A worrisome aspect of Atty. Buffes approach to Section 7
(b)(2) is her awareness of the law and her readiness to risk its
violation because of the unfairness she perceives in the law.
We find it disturbing that she first violated the law before
making any inquiry. She also justifies her position by referring
to the practice of other government lawyers known to her who,
after separation from their judicial employment, immediately
engaged in the private practice of law and appeared as private
counsels before the RTC branches where they were previously
employed. Again we find this a cavalier attitude on Atty. Buffes
part and, to our mind, only emphasizes her own willful or
intentional disregard of Section 7 (b)(2) of R.A. No. 6713.
By acting in a manner that R.A. No. 6713 brands as unlawful,
Atty. Buffe contravened Rule 1.01 of Canon 1 of the Code of
Professional Responsibility, which provides:
CANON 1 A LAWYER SHALL UPHOLD THE
CONSTITUTION, OBEY THE LAWS OF THE LAND AND
PROMOTE RESPECT FOR LAW AND FOR LEGAL
PROCESSES
Rule 1.01 A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct.
As indicated by the use of the mandatory word shall, this
provision must be strictly complied with. Atty. Buffe failed to do
this, perhaps not with an evil intent, considering the misgivings
she had about Section 7 (b)(2)s unfairness. Unlawful conduct
under Rule 1.01 of Canon 1, however, does not necessarily
require the element of criminality, although the Rule is broad
enough to include it. Likewise, the presence of evil intent on
the part of the lawyer is not essential to bring his or her act or
omission within the terms of Rule 1.01, when it specifically
prohibits lawyers from engaging in unlawful conduct. Thus, we
find Atty. Buffe liable under this quoted Rule.
We also find that Atty. Buffe also failed to live up to her lawyers
oath and thereby violated Canon 7 of the Code of Professional
Responsibility when she blatantly and unlawfully practised law
within the prohibited period by appearing before the RTC
Branch she had just left. Canon 7 states:
CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE
INTEGRITY AND THE DIGNITY OF THE LEGAL
PROFESSION AND SUPPORT THE ACTIVITIES OF THE
INTEGRATED BAR. [Emphasis supplied]
By her open disregard of R.A. No. 6713, she thereby followed
the footsteps of the models she cited and wanted to replicate
the former court officials who immediately waded into practice
in the very same court they came from. She, like they,
disgraced the dignity of the legal profession by openly
disobeying and disrespecting the law.[20] By her irresponsible
conduct, she also eroded public confidence in the law and in
lawyers.[21] Her offense is not in any way mitigated by her
transparent attempt to cover up her transgressions by writing
the Court a letter-query, which she followed up with
unmeritorious petitions for declaratory relief, all of them dealing
with the same Section 7 (b)(2) issue, in the hope perhaps that
at some point she would find a ruling favorable to her cause.
These are acts whose implications do not promote public
confidence in the integrity of the legal profession.[22]
Considering Atty. Buffes ready admission of violating Section
7(b)(2), the principle of res ipsa loquitur finds application,
making her administratively liable for violation of Rule 1.01 of
Canon 1 and Canon 7 of the Code of Professional
Responsibility.[23] In several cases, the Court has disciplined
lawyers without further inquiry or resort to any formal
investigation where the facts on record sufficiently provided the
basis for the determination of their administrative liability.
In Prudential Bank v. Castro, the Court disbarred a lawyer
without need of any further investigation after considering his
actions based on records showing his unethical misconduct;
48
the misconduct not only cast dishonor on the image of both the
Bench and the Bar, but was also inimical to public interest and
welfare. In this regard, the Court took judicial notice of several
cases handled by the errant lawyer and his cohorts that
revealed their modus operandi in circumventing the payment of
the proper judicial fees for the astronomical sums they claimed
in their cases.[25] The Court held that those cases sufficiently
provided the basis for the determination of respondents'
administrative liability, without need for further inquiry into the
matter under the principle of res ipsa loquitur.
Also on the basis of this principle, we ruled in Richards v.
Asoy, that no evidentiary hearing is required before the
respondent may be disciplined for professional misconduct
already established by the facts on record.
We applied the principle of res ipsa loquitur once more in In re:
Wenceslao Laureta where we punished a lawyer for grave
professional misconduct solely based on his answer to a show-
cause order for contempt and without going into a trial-type
hearing. We ruled then that due process is satisfied as long as
the opportunity to be heard is given to the person to be
disciplined.
Likewise in Zaldivar v. Gonzales, the respondent was
disciplined and punished for contempt for his slurs regarding
the Courts alleged partiality, incompetence and lack of integrity
on the basis of his answer in a show-cause order for contempt.
The Court took note that the respondent did not deny making
the negative imputations against the Court through the media
and even acknowledged the correctness of his degrading
statements. Through a per curiam decision, we justified
imposing upon him the penalty of suspension in the following
tenor:
The power to punish for contempt of court does not exhaust
the scope of disciplinary authority of the Court over lawyers.
The disciplinary authority of the Court over members of the Bar
is but corollary to the Court's exclusive power of admission to
the Bar. A lawyer is not merely a professional but also an
officer of the court and as such, he is called upon to share in
the task and responsibility of dispensing justice and resolving
disputes in society. Any act on his part which visibly tends to
obstruct, pervert, or impede and degrade the administration of
justice constitutes both professional misconduct calling for the
exercise of disciplinary action against him, and contumacious
conduct warranting application of the contempt power.
These cases clearly show that the absence of any formal
charge against and/or formal investigation of an errant lawyer
do not preclude the Court from immediately exercising its
disciplining authority, as long as the errant lawyer or judge has
been given the opportunity to be heard. As we stated earlier,
Atty. Buffe has been afforded the opportunity to be heard on
the present matter through her letter-query and Manifestation
filed before this Court.
A member of the bar may be penalized, even disbarred or
suspended from his office as an attorney, for violation of the
lawyers oath and/or for breach of the ethics of the legal
profession as embodied in the Code of Professional
Responsibility. The appropriate penalty on an errant lawyer
depends on the exercise of sound judicial discretion based on
the surrounding facts.
In this case, we cannot discern any mitigating factors we can
apply, save OCATs observation that Atty Buffes letter-query
may really reflect a misapprehension of the parameters of the
prohibition on the practice of the law profession under Section
7 (b) (2) of R.A. No. 6713. Ignorance of the law, however, is no
excuse, particularly on a matter as sensitive as practice of the
legal profession soon after ones separation from the service. If
Atty. Buffe is correct in the examples she cited, it is time to ring
the bell and to blow the whistle signaling that we cannot allow
this practice to continue.
As we observed earlier, Atty. Buffe had no qualms about the
simultaneous use of various fora in expressing her misgivings
about the perceived unfairness of Section 7 of R.A. 6713. She
formally lodged a query with the Office of the Court
Administrator, and soon after filed her successive petitions for
declaratory relief. Effectively, she exposed these fora to the
possibility of embarrassment and confusion through their
possibly differing views on the issue she posed. Although this
is not strictly the forum-shopping that the Rules of Court
prohibit, what she has done is something that we cannot help
but consider with disfavor because of the potential damage
and embarrassment to the Judiciary that it could have
spawned. This is a point against Atty. Buffe that cancels out
the leniency we might have exercised because of the OCATs
observation about her ignorance of and misgivings on the
extent of the prohibition after separation from the service.
Under the circumstances, we find that her actions merit a
penalty of fine of P10,000.00, together with a stern warning to
deter her from repeating her transgression and committing
other acts of professional misconduct.[35] This penalty reflects
as well the Courts sentiments on how seriously the retired,
resigned or separated officers and employees of the Judiciary
should regard and observe the prohibition against the practice
of law with the office that they used to work with.
WHEREFORE, premises considered, we find Atty. Karen M.
Silverio-Buffe GUILTY of professional misconduct for violating
Rule 1.01 of Canon 1 and Canon 7 of the Code of Professional
Responsibility. She is hereby FINED in the amount of Ten
Thousand Pesos (P10,000.00), and STERNLY WARNED that
a repetition of this violation and the commission of other acts of
professional misconduct shall be dealt with more severely.
Let this Decision be noted in Atty. Buffes record as a member
of the Bar. SO ORDERED.
THIRD DIVISION A.C. No. 8096, July 5, 2010
REY J. VARGAS AND EDUARDO A. PANES, JR.,
Complainants,
- versus -
ATTY. MICHAEL A. IGNES, ATTY. LEONARD BUENTIPO
MANN, ATTY. RODOLFO U. VIAJAR, JR., AND ATTY.
JOHN RANGAL D. NADUA, Respondents.
RESOLUTION
VILLARAMA, JR., J.:
Before the Court is a petition for review of Resolution No.
XVIII-2008-335[1] passed on July 17, 2008 by the Board of
Governors of the Integrated Bar of the Philippines (IBP) in CBD
Case No. 07-1953. The IBP Board of Governors dismissed the
disbarment case filed by the complainants against the
respondents.
The facts and proceedings antecedent to this case are as
follows:
Koronadal Water District (KWD), a government-owned and
controlled corporation (GOCC), hired respondent Atty. Michael
A. Ignes as private legal counsel for one (1) year effective April
17, 2006.[2] The Office of the Government Corporate Counsel
(OGCC) and the Commission on Audit (COA) gave their
consent to the employment of Atty. Ignes.[3] However,
controversy later erupted when two (2) different groups, herein
referred to as the Dela Pea board and Yaphockun board, laid
claim as the legitimate Board of Directors of KWD.
49
On December 28, 2006, the members of the Dela Pea board
filed Civil Case No. 1793[4] for Injunction and Damages,
seeking to annul the appointment of two (2) directors, Joselito
T. Reyes and Carlito Y. Uy, who will allegedly connive with
Director Allan D. Yaphockun whose hostility to the present
Board of Directors, the Dela Pea board, is supposedly of public
knowledge.
On January 18, 2007, the Dela Pea board also adopted
Resolution No. 009[5] appointing respondents Atty. Rodolfo U.
Viajar, Jr. and Atty. Leonard Buentipo Mann as private
collaborating counsels for all cases of KWD and its Board of
Directors, under the direct supervision and control of Atty.
Ignes.
Subsequently, on February 9, 2007, Attys. Ignes, Viajar, Jr.
and Mann filed SCA Case No. 50-24 for Indirect Contempt of
Court[6] entitled Koronadal Water District (KWD), represented
herein by its General Manager, Eleanor Pimentel-Gomba v.
Efren V. Cabucay, et al. On February 19, 2007, they also filed
Civil Case No. 1799 for Injunction and Damages[7] entitled
Koronadal Water District (KWD), represented herein by its
General Manager, & Eleanor Pimentel-Gomba v. Rey J.
Vargas. On March 9, 2007, KWD and Eleanor Pimentel-
Gomba filed a supplemental complaint[8] in Civil Case No.
1799.
Meanwhile, in Contract Review No. 079[9] dated February 16,
2007, the OGCC had approved the retainership contract of
Atty. Benjamin B. Cuanan as new legal counsel of KWD and
stated that the retainership contract of Atty. Ignes had expired
on January 14, 2007.
In its letter[10] dated March 2, 2007, the OGCC also
addressed Eleanor P. Gombas insistence that the retainership
contract of Atty. Ignes will expire on April 17, 2007. The OGCC
stated that as stipulated, the KWD or OGCC may terminate the
contract anytime without need of judicial action; that OGCCs
grant of authority to private counsels is a privilege
withdrawable under justifiable circumstances; and that the
termination of Atty. Igness contract was justified by the fact that
the Local Water Utilities Administration had confirmed the
Yaphockun board as the new Board of Directors of KWD and
that said board had terminated Atty. Igness services and
requested to hire another counsel.
Alleging that respondents acted as counsel for KWD without
legal authority, complainants filed a disbarment complaint
against the respondents before the IBP Commission on Bar
Discipline (CBD), docketed as CBD Case No. 07-1953.
Complainants alleged that respondents filed SCA Case No. 50-
24 and Civil Case No. 1799 as counsels of KWD without legal
authority. They likewise stated in their position paper[12] that
Atty. Ignes continued representing KWD even after the OGCC
had confirmed the expiration of Atty. Igness contract in its April
4, 2007 manifestation/motion[13] in Civil Case No. 1796-25
entitled Koronadal Water District (KWD), represented herein by
its General Manager, Eleanor Pimentel Gomba v. Supreme
Investigative and Security Agency, represented by its Manager
Efren Y. Cabucay.
In his defense,[14] Atty. Mann stated that he and his fellow
respondents can validly represent KWD until April 17, 2007
since Atty. Ignes was not notified of his contracts pre-
termination. Atty. Mann also stated that he stopped
representing KWD after April 17, 2007 in deference to the
OGCCs stand. Attys. Ignes, Viajar, Jr. and Nadua echoed Atty.
Manns defense.
On March 10, 2008, complainants filed a manifestation[16]
before the IBP with the following attachments: (1) the transcript
of stenographic notes taken on January 28, 2008 in Civil Case
No. 1799, and (2) the notice of appeal dated February 28,
2008 of the January 7, 2008 Order dismissing Civil Case No.
1799. Aforesaid transcript showed that Atty. Ignes appeared as
counsel of KWD and Ms. Gomba. He also signed the notice of
appeal.
In his report and recommendation,[17] the Investigating
Commissioner recommended that the charge against Atty.
Ignes be dismissed for lack of merit. The Investigating
Commissioner held that Atty. Ignes had valid authority as
counsel of KWD for one (1) year, from April 2006 to April 2007,
and he was unaware of the pre-termination of his contract
when he filed pleadings in SCA Case No. 50-24 and Civil Case
No. 1799 in February and March 2007.
As to Attys. Viajar, Jr., Mann and Nadua, the Investigating
Commissioner recommended that they be fined P5,000 each
for appearing as attorneys for a party without authority to do
so, per Santayana v. Alampay.[18] The Investigating
Commissioner found that they failed to secure the conformity
of the OGCC and COA to their engagement as collaborating
counsels for KWD.
As aforesaid, the IBP Board of Governors reversed the
recommendation of the Investigating Commissioner and
dismissed the case for lack of merit.
Hence, the present petition.
Complainants contend that the IBP Board of Governors erred
in dismissing the case because respondents had no authority
from the OGCC to file the complaints and appear as counsels
of KWD in Civil Case No. 1799, SCA Case No. 50-24 and Civil
Case No. 1796-25. Complainants point out that the
retainership contract of Atty. Ignes had expired on January 14,
2007; that the Notice of Appeal filed by Atty. Ignes, et al. in
Civil Case No. 1799 was denied per Order dated April 8, 2008
of the Regional Trial Court (RTC) for being filed by one not
duly authorized by law; and that the authority of Attys. Viajar,
Jr. and Mann as collaborating counsels is infirm since
Resolution No. 009 of the Dela Pea board lacks the conformity
of the OGCC. As a consequence, according to complainants,
respondents are liable for willfully appearing as attorneys for a
party to a case without authority to do so.
In his comment, Atty. Ignes admits that their authority to
represent KWD had expired on April 17, 2007, but he and his
fellow respondents stopped representing KWD after that date.
He submits that they are not guilty of appearing as counsels
without authority. In their comment, Attys. Viajar, Jr. and
Nadua propound similar arguments. They also say that their
fees were paid from private funds of the members of the Dela
Pea board and KWD personnel who might need legal
representation, not from the public coffers of KWD. In his own
comment, Atty. Mann submits similar arguments.
After a careful study of the case and the parties submissions,
we find respondents administratively liable.
At the outset, we note that the parties do not dispute the need
for OGCC and COA conformity if a GOCC hires private
lawyers. Nonetheless, we shall briefly recall the legal basis of
this rule. Under Section 10, Chapter 3, Title III, Book IV of the
Administrative Code of 1987, it is the OGCC which shall act as
the principal law office of all GOCCs. And Section 3 of
Memorandum Circular No. 9,[19] issued by President Estrada
on August 27, 1998, enjoins GOCCs to refrain from hiring
private lawyers or law firms to handle their cases and legal
matters. But the same Section 3 provides that in exceptional
cases, the written conformity and acquiescence of the Solicitor
General or the Government Corporate Counsel, as the case
may be, and the written concurrence of the COA shall first be
secured before the hiring or employment of a private lawyer or
law firm. In Phividec Industrial Authority v. Capitol Steel
Corporation,[20] we listed three (3) indispensable conditions
before a GOCC can hire a private lawyer: (1) private counsel
50
can only be hired in exceptional cases; (2) the GOCC must first
secure the written conformity and acquiescence of the Solicitor
General or the Government Corporate Counsel, as the case
may be; and (3) the written concurrence of the COA must also
be secured.
In the case of respondents, do they have valid authority to
appear as counsels of KWD?
We find that Attys. Nadua, Viajar, Jr. and Mann had no valid
authority to appear as collaborating counsels of KWD in SCA
Case No. 50-24 and Civil Case No. 1799. Nothing in the
records shows that Atty. Nadua was engaged by KWD as
collaborating counsel. While the 4th Whereas Clause of
Resolution No. 009 partly states that he and Atty. Ignes
presently stand as KWD legal counsels, there is no proof that
the OGCC and COA approved Atty. Naduas engagement as
legal counsel or collaborating counsel. Insofar as Attys. Viajar,
Jr. and Mann are concerned, their appointment as
collaborating counsels of KWD under Resolution No. 009 has
no approval from the OGCC and COA.
Attys. Nadua, Viajar, Jr. and Mann are in the same situation as
the private counsel of Phividec Industrial Authority in Phividec.
In that case, we also ruled that said private counsel of Phividec
Industrial Authority, a GOCC, had no authority to file the
expropriation case in Phividecs behalf considering that the
requirements set by Memorandum Circular No. 9 were not
complied with.[21] Thus, Resolution No. 009 did not grant
authority to Attys. Nadua, Viajar, Jr. and Mann to act as
collaborating counsels of KWD. That Atty. Ignes was not
notified of the pre-termination of his own retainership contract
cannot validate an inexistent authority of Attys. Nadua, Viajar,
Jr. and Mann as collaborating counsels.
In the case of Atty. Ignes, he also appeared as counsel of
KWD without authority, after his authority as its counsel had
expired. True, the OGCC and COA approved his retainership
contract for one (1) year effective April 17, 2006. But even if we
assume as true that he was not notified of the pre-termination
of his contract, the records still disprove his claim that he
stopped representing KWD after April 17, 2007.
Atty. Ignes offered no rebuttal to the verified manifestation of
complainants filed with the IBP on March 10, 2008. Attached
therein was the transcript of stenographic notes[22] in Civil
Case No. 1799 taken on January 28, 2008 when Atty. Ignes
argued the extremely urgent motion for the immediate return of
the facilities of the KWD to the KWD Arellano Office. The RTC
was compelled to ask him why he seeks the return of KWD
properties if he filed the motion as counsel of Ms. Gomba.
When the RTC noted that KWD does not appear to be a party
to the motion, Atty. Ignes said that KWD is represented by Ms.
Gomba per the caption of the case. Atty. Ignes also manifested
that they will file a motion for reconsideration of the orders
dismissing Civil Case No. 1799 and Civil Case No. 1793. The
RTC ruled that it will not accept any motion for reconsideration
in behalf of KWD unless he is authorized by the OGCC, but
Atty. Ignes later filed a notice of appeal[23] dated February 28,
2008, in Civil Case No. 1799. As the notice of appeal signed by
Atty. Ignes was filed by one (1) not duly authorized by law, the
RTC, in its Order[24] dated April 8, 2008, denied due course to
said notice of appeal.
As we see it, Atty. Ignes portrayed that his appearance on
January 28, 2008 was merely as counsel of Ms. Gomba. He
indicted himself, however, when he said that Ms. Gomba
represents KWD per the case title. In fact, the extremely urgent
motion sought the return of the facilities of KWD to its Arellano
Office. Clearly, Atty. Ignes filed and argued a motion with the
interest of KWD in mind. The notice of appeal in Civil Case No.
1799 further validates that Atty. Ignes still appeared as counsel
of KWD after his authority as counsel had expired. This fact
was not lost on the RTC in denying due course to the notice of
appeal.
Now did respondents willfully appear as counsels of KWD
without authority?
The following circumstances convince us that, indeed,
respondents willfully and deliberately appeared as counsels of
KWD without authority. One, respondents have admitted the
existence of Memorandum Circular No. 9 and professed that
they are aware of our ruling in Phividec.[25] Thus, we entertain
no doubt that they have full grasp of our ruling therein that
there are indispensable conditions before a GOCC can hire
private counsel and that for non-compliance with the
requirements set by Memorandum Circular No. 9, the private
counsel would have no authority to file a case in behalf of a
GOCC. Still, respondents acted as counsels of KWD without
complying with what the rule requires. They signed pleadings
as counsels of KWD. They presented themselves voluntarily,
on their own volition, as counsels of KWD even if they had no
valid authority to do so.
Two, despite the question on respondents authority as
counsels of KWD which question was actually raised earlier in
Civil Case No. 1799 by virtue of an urgent motion to disqualify
KWDs counsels[26] dated February 21, 2007 and during the
hearing on February 23, 2007[27] respondents still filed the
supplemental complaint in the case on March 9, 2007. And
despite the pendency of this case before the IBP, Atty. Ignes
had to be reminded by the RTC that he needs OGCC authority
to file an intended motion for reconsideration in behalf of KWD.
With the grain of evidence before us, we do not believe that
respondents are innocent of the charge even if they insist that
the professional fees of Attys. Nadua, Viajar, Jr. and Mann, as
collaborating counsels, were paid not from the public coffers of
KWD. To be sure, the facts were clear that they appeared as
counsels of KWD without authority, and not merely as counsels
of the members of the Dela Pea board and KWD personnel in
their private suits.
Consequently, for respondents willful appearance as counsels
of KWD without authority to do so, there is a valid ground to
impose disciplinary action against them. Under Section 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.
Disbarment, however, is the most severe form of disciplinary
sanction, and, as such, the power to disbar must always be
exercised with great caution, and should be imposed 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 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. In Santayana, we imposed a fine
of P5,000 on the respondent for willfully appearing as an
attorney for a party to a case without authority to do so. The
respondent therein also appeared as private counsel of the
National Electrification Administration, a GOCC, without any
approval from the OGCC and COA.
Conformably with Santayana, we impose a fine of P5,000 on
each respondent.
On another matter, we note that respondents stopped short of
fully narrating what had happened after the RTC issued four
51
(4) orders on March 24, 2007 and on April 13, 2007 in Civil
Case No. 1799.[30] As willingly revealed by complainants, all
four (4) orders were nullified by the Court of Appeals.[31] We
are compelled to issue a reminder that our Code of
Professional Responsibility requires lawyers, like respondents,
to always show candor and good faith to the courts.[32]
WHEREFORE, the petition is GRANTED. The assailed
Resolution No. XVIII-2008-335 passed on July 17, 2008 by the
IBP Board of Governors in CBD Case No. 07-1953 is
REVERSED and SET ASIDE.
Respondents Attys. Michael A. Ignes, Leonard Buentipo Mann,
Rodolfo U. Viajar, Jr., and John Rangal D. Nadua are found
GUILTY of willfully appearing as attorneys for a party to a case
without authority to do so and FINED P5,000 each, payable to
this Court within ten (10) days from notice of this Resolution.
They are STERNLY WARNED that a similar offense in the
future will be dealt with more severely.
Let a copy of this Resolution be attached to respondents
personal records in the Office of the Bar Confidant.
SO ORDERED.
In 1984, The Legal Clinic was formed by Atty. Rogelio
Nogales. Its aim, according to Nogales was to move toward
specialization and to cater to clients who cannot afford the
services of big law firms. Now, Atty. Mauricio Ulep filed a
complaint against The Legal Clinic because of the latters
advertisements which contain the following:
SECRET MARRIAGE?
P560.00 for a valid marriage.
Info on DIVORCE. ABSENCE. ANNULMENT. VISA.
THE LEGAL CLINIC, INC.
Please call: 521-0767; 521-7232; 522-2041
8:30am 6:00pm
7th Flr. Victoria Bldg., UN Ave., Manila
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 Retirees Visa.
Declaration of Absence. Remarriage to Filipina Fiancees.
Adoption. Investment in the Phil. US/Foreign Visa for Filipina
Spouse/Children.
Call Marivic.
THE LEGAL CLINIC, INC.
7th Flr. Victoria Bldg., UN Ave., Manila nr. US Embassy
Tel. 521-7232, 521-7251, 522-2041, 521-0767
It is also alleged that The Legal Clinic published an article
entitled Rx for Legal Problems in Star Week of Philippine Star
wherein Nogales stated that they The Legal Clinic is composed
of specialists that can take care of a clients problem no matter
how complicated it is even if it is as complicated as the Sharon
Cuneta-Gabby Concepcion situation. He said that he and his
staff of lawyers, who, like doctors, are specialists in various
fields, can take care of it. The Legal Clinic, Inc. has specialists
in taxation and criminal law, medico-legal problems, labor,
litigation and family law. These specialists are backed up by a
battery of paralegals, counselors and attorneys.
As for its advertisement, Nogales said it should be allowed in
view of the jurisprudence in the US which now allows it (John
Bates vs The State Bar of Arizona). And that besides, the
advertisement is merely making known to the public the
services that The Legal Clinic offers.
ISSUE: Whether or not The Legal Clinic is engaged in the
practice of law; whether such is allowed; whether or not its
advertisement may be allowed.
HELD: Yes, The Legal Clinic is engaged in the practice of law
however, such practice is not allowed. The Legal Clinic is
composed mainly of paralegals. The services it offered include
various legal problems wherein a client may avail of legal
services from simple documentation to complex litigation and
corporate undertakings. Most of these services are
undoubtedly beyond the domain of paralegals, but rather, are
exclusive functions of lawyers engaged in the practice of law.
Under Philippine jurisdiction however, the services being
offered by Legal Clinic which constitute practice of law cannot
be performed by paralegals. Only a person duly admitted as a
member of the bar and who is in good and regular standing, is
entitled to practice law.
Anent the issue on the validity of the questioned
advertisements, the Code of Professional Responsibility
provides that a lawyer in making known his legal services shall
use only true, honest, fair, dignified and objective information
or statement of facts. The standards of the legal profession
condemn the lawyers advertisement of his talents. A lawyer
cannot, without violating the ethics of his profession, advertise
his talents or skills as in a manner similar to a merchant
advertising his goods. Further, the advertisements of Legal
Clinic seem to promote divorce, secret marriage, bigamous
marriage, and other circumventions of law which their experts
can facilitate. Such is highly reprehensible.
The Supreme Court also noted which forms of advertisement
are allowed. The best advertising possible for a lawyer is a
well-merited reputation for professional capacity and fidelity to
trust, which must be earned as the outcome of character and
conduct. Good and efficient service to a client as well as to the
community has a way of publicizing itself and catching public
attention. That publicity is a normal by-product of effective
service which is right and proper. A good and reputable lawyer
needs no artificial stimulus to generate it and to magnify his
success. He easily sees the difference between a normal by-
product of able service and the unwholesome result of
propaganda. The Supreme Court also enumerated the
following as allowed forms of advertisement:
1. Advertisement in a reputable law list
2. Use of ordinary simple professional card
3. Listing in a phone directory but without designation as
to his specialization