FIRST DIVISION

A.C. No. 10145, June 11, 2018

OLIVER FABUGAIS, Complainant, v. ATTY. BERARDO C. FAUNDO JR., Respondent.

DECISION

DEL CASTILLO, J.:

In both their professional and personal lives, lawyers must conduct themselves in such a way that does
not reflect negatively upon the legal profession.

Factual Antecedents

This is a Complaint1 filed by complainant Oliver Fabugais (complainant) against Atty. Berardo C. Faundo,
Jr. (respondent lawyer), for gross misconduct and conduct unbecoming of a lawyer for having allegedly
engaged in illicit and immoral relations with his wife, Annaliza Lizel B. Fabugais (Annaliza).

In her Sinumpaang Salaysay,2 then 10-year old girl Marie Nicole Fabugais (Marie Nicole), daughter of
complainant, alleged that sometime in October 2006, she, along with her mother, Annaliza. Ate Mimi
(Michelle Lagasca), and a certain Ate Ada (Ada Marie Campos), stayed in a house in Ipil, Zamboanga-
Sibugay, that belonged to respondent lawyer, whom Marie Nicole referred to as "Tito Attorney." Marie
Nicole said that when night-time fell, respondent lawyer slept in the same bed with her and her mother
and that she saw respondent lawyer embracing her mother while they were sleeping.

Marie Nicole further recounted that the next morning, while she was watching television along with her
mother, Ate Mimi and Ate Ada, respondent lawyer who just had a shower, and clad only in a towel or
"tapis," suddenly entered the room; that she (Marie Nicole) along with her Ate Mimi and her Ate Ada,
were told to step outside the room (either by respondent lawyer, or by her mother Annaliza), while her
mother and respondent lawyer remained inside the room.

Because of these developments, complainant filed a case for the declaration of nullity of his marriage
with Annaliza, with prayer for the custody of their minor children. In said case, respondent lawyer
entered his appearance as collaborating counsel for Annaliza.3

Complainant moreover narrated that, on February 17, 2007, while he was driving his motorcycle along
the San Jose Road in Baliwasan, Zamboanga City, respondent lawyer, who was then riding in tandem in
another motorcycle with his own driver, slowed down next to him (complainant) and yelled at him
angrily, "Nah, cosa man?!" ("So, what now?!"); that he (complainant) also noticed that respondent
lawyer kept following and shouting at him (complainant), and even challenged him to a fistfight, and
threatened to kill him.4

Complainant further alleged that respondent lawyer also harassed his sister on February 27, 2007 by
chasing and trailing after her car.5
In his Answer,6 respondent lawyer asserted that the chasing incident actually took place on February 16,
2007, and that it was in fact complainant himself who stared menacingly at him (respondent lawyer)
while he was riding a motorcycle in tandem with his driver. Respondent lawyer sought to reinforce this
assertion through the affidavit of respondent lawyer's driver, Romeo T. Mirasol,7 and two other
individuals.8

Respondent lawyer denied that he had had any immoral relations with Annaliza. He claimed that he was
merely assisting Annaliza in her tempestuous court battle with complainant for custody of her children.
Respondent lawyer asserted that when Marie Nicole's maternal grandmother, Ma. Eglinda L. Bantoto,
sought out his help in this case, he told them that they could hide in his (respondent lawyer's) parents'
house in Ipil.9

Respondent lawyer claimed that the cordial relationship he had had with Annaliza could be traced to her
being the stepdaughter of his (respondent lawyer's) late uncle, and also to her having been his former
student at the Western Mindanao State University in Zamboanga City. Respondent lawyer insisted that
he was incapable of committing the misconduct imputed to him for three simple reasons to wit: because
he is a good father to his three children, because he is a respected civic leader, and because he had
never been the subject even of a complaint with the police. He claimed that complainant filed the
instant complaint simply "to harass him from practicing his legitimate profession, and for no other
reason."10

Upon recommendation of the IBP-ZAMBASULTA Chapter Board, this case was forwarded to the
Integrated Bar of the Philippines (IBP) Board of Governors (BOG) in April 26, 2007.11 And, in an Order
dated August 2, 2007 this case was then consolidated with a similar case filed by the same complainant
against the same respondent.12

Report and Recommendation of the Investigating Commissioner

In his Report and Recommendation,13 IBP Investigating Commissioner Dennis A. B. Funa (Investigating
Commissioner) found respondent lawyer guilty of violating Rule 1.01 of the Code of Professional
Responsibility and recommended his suspension from the practice of law for one (1) month.

The Investigating Commissioner noted that on the accusation that respondent lawyer had chased
complainant in his motorcycle on February 17, 2007, this accusation had not been fully substantiated
with convincing evidence. He opined that "there [was] doubt as to whether the incident did occur with
the [respondent lawyer's] presence and participation. [Since] the motorcycles were moving fast and the
parties were wearing helmets[, the] identity of respondent [lawyer] could not be [categorically]
established."14

The Investigating Commissioner likewise found no sufficient evidence to establish that respondent
lawyer harassed complainant's sister.

However, the Investigating Commissioner found respondent lawyer to have acted inappropriately with
Annaliza which created the appearance of immorality, viz.:
As can be gleaned from the records or the hearing, no categorical sexual activity took place between
respondent and complainant's wife. One would need to inject a bit of imagination to create an image of
something sexual. But as can be read, no sexual activity took place based on the witness' account.

However, it would be erroneous to conclude that respondent's behavior was in total and complete
accord with how a lawyer should behave, particularly in the presence of a minor. Was respondent's
behavior toward a woman, in the presence of her minor daughter of 11 years, proper and in keeping
with the dignity of the legal profession? It is clear that there was impropriety on the part of respondent.

In Tolosa v. Cargo (A.M. No. 2385, March 8, 1989), the Court held that creating the appearance that a
lawyer is flouting with moral standards is sanctionable. Thus, while the charge of immorality, viz[.],
adulterous relationship, was not factually established, certain behavior of the respondent did not escape
notice of the Court.

In this case, while sexual immorality was not established, respondent should be held to account for his
inappropriate behavior which created the image or appearance of immorality especially in the presence
of a minor girl. Respondent's act of lying in bed with another married woman, while he himself is a
married man, in the presence of the woman's daughter could raise suspicions, as in fact it did. x x x.

Respondent should have been considerate of the feelings and perceptions of other people, particularly
of minor children.15

The Investigating Commissioner, thus, recommended respondent lawyer's suspension for one (1) month
for violating Rule 1.01 of the Code of Professional Responsibility.

Report and Recommendation of the IBP-BOG

The IBP-BOG in its Resolution No. XIX-2011-30216 adopted and approved the findings and
recommendation of the Investigating Commissioner.

Sometime in 2011, complainant's counsel Atty. Mario Frez (Atty. Frez) filed a Notice, Manifestation, and
Motion for Withdrawal17 from this case, stating that complainant had passed away on June 12, 2011;
and that he was not sure whether complainant's heirs were still willing to pursue the disbarment case
against respondent lawyer since he has had no contact with the complainant since June 1, 2009; and he
has had no information as to the whereabouts of complainant's heirs.

Notwithstanding the Motion for Withdrawal filed by Atty. Frez and considering the Motion for
Reconsideration filed by the respondent lawyer in 2013, the IBP-BOG issued on June 21, 2013 a
Resolution18 denying respondent lawyer's motion for reconsideration.

Pursuant to Section 12(c) of Rule 139-B of the Rules of Court, this case is before us for final action.

Our Ruling
We find substantial merit in the findings of facts of the IBP. And we reject respondent lawyer's highly
implausible defense that the complainant filed the instant case for no other reason but simply "to harass
him from practicing his legitimate profession."19 There is absolutely nothing in the record to support it.

It bears stressing that this case can proceed in spite of complainant's death and the apparent lack of
interest on the part of complainant's heirs. Disciplinary proceedings against lawyers are sui generis in
nature; they are intended and undertaken primarily to look into the conduct or behavior of lawyers, to
determine whether they are still fit to exercise the privileges of the legal profession, and to hold them
accountable for any misconduct or misbehavior which deviates from the mandated norms and
standards of the Code of Professional Responsibility, all of which are needful and necessary to the
preservation of the integrity of the legal profession. Because not chiefly or primarily intended to
administer punishment, such proceedings do not call for the active service of prosecutors.20

We first rule on the accusation relative to the chasing incidents. This Court agrees with the IBP's findings
that the evidence presented by complainant upon this point was insufficient to establish the fact that
respondent lawyer had committed the alleged acts against the complainant and his sister.

We now turn to the accusation in regard to the immoral acts claimed to have been committed by
respondent lawyer with complainant's wife Annaliza. The issue to be resolved here is this: Did
respondent lawyer in fact commit acts that are grossly immoral, or acts that amount to serious moral
depravity, that would warrant or call for his disbarment or suspension from the practice of law?

"Immoral conduct" has been defined as that conduct which is so willful, flagrant, or shameless as to
show indifference to the opinion of good and respectable members of the community.21 This Court has
held that for such conduct to warrant disciplinary action, the same must be "grossly immoral, that is, it
must be so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a
high degree."22

It is not easy to state with accuracy what constitutes "grossly immoral conduct," let alone what
constitutes the moral delinquency and obliquity that renders a lawyer unfit or unworthy to continue as a
member of the bar in good standing.23

In the present case, going by the eyewitness testimony of complainant's daughter Marie Nicole, raw or
explicit sexual immorality between respondent lawyer and complainant's wife was not established as a
matter of fact. Indeed, to borrow the Investigating Commissioner's remark: "[o]ne would need to inject
a bit of imagination to create an image or something sexual."24

That said, it can in no wise or manner be argued that respondent lawyer's behavior was par for the
course for members of the legal profession. Lawyers are mandated to do honor to the bar at all times
and to help maintain the respect of the community for the legal profession under all circumstances.25
Canon 7 of the Code of Professional Responsibility provides:

A lawyer shall at all times uphold the integrity and dignity of the legal profession, and support the
activities of the Integrated Bar.
Rule 7.03 of the Code of Professional Responsibility further provides:

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.

"There is perhaps no profession after that of the sacred ministry in which a high-toned morality is more
imperative than that of the law."26 As officers of the court, lawyers must in fact and in truth be of good
moral character. They must moreover also be seen or appear to be of good moral character; and be
seen or appear to – live a life in accordance with the highest moral standards of the community.27
Members of the bar can ill-afford to exhibit any conduct which tends to lessen in any degree the
confidence of the public in the fidelity, the honesty, and the integrity of the legal profession.28 The
Courts require adherence to these lofty precepts because any thoughtless or ill-considered actions or
actuations by any member of the Bar can irreversibly undermine public confidence in the law and,
consequently, those who practice it.29

The acts complained of in this case might not be grossly or starkly immoral in its rawness or coarseness,
but they were without doubt condemnable. Respondent lawyer who made avowals to being a
respectable father to three children, and also to being a respected leader of his community apparently
had no qualms or scruples about being seen sleeping in his own bed with another man's wife, his arms
entwined in tender embrace with the latter. Respondent lawyer's claim that he was inspired by nothing
but the best of intentions in inviting another married man's wife and her 10-year old daughter to sleep
with him in the same bed so that the three of them could enjoy good night's rest in his airconditioned
chamber, reeks with racy, ribald humor.

And in aggravation or the aforementioned unseemly behavior, respondent lawyer apparently

experienced neither qualms nor scruples at all about exploding into the room occupied by a married
man's wife and her 10-year old daughter and their two other women companions clad with nothing else
but a "tapis" or a towel. Of course, respondent lawyer sought to downplay this boorish impropriety by
saying in his Motion for Reconsideration that he was wearing a malong and not tapis at that time. And,
of course, this plea will not avail because his scanty trappings gave him no license to intrude into a small
room full of women. Respondent lawyer could have simply asked everyone in the room to step outside
for a little while. Or he could have donned his clothing elsewhere. But these things seemed to have been
totally lost to respondent lawyer's density. Indeed, respondent lawyer seemed to have forgotten that
there are rules other men – decent men, – live by.

Respondent lawyer's defense that he was a "respectable father with three children" and that he was a
"respected civic leader" to boot, flies in the face of a young girl's perception of his diminished
deportment. It does not escape this Court's attention that the 10-year old Marie Nicole called
respondent lawyer "Tito Attorney." Indeed, by calling respondent lawyer as "Tito Attorney" Marie Nicole
effectively proclaimed her avuncular affection for him, plus her recognition of his being a member of the
legal profession. We believe that Marie Nicole must have been a bit disappointed with what she saw and
observed about the manners, predilections and propensities of her "Tito Attorney." In fact, a close
examination of Marie Nicole's testimony cannot fail to show that in Marie Nicole's young mind, it was
clearly not right, appropriate or proper for her "Tito Attorney" to be sharing the same bed with her and
her mother, and for her mother to remain alone in the same room with her "Tito Attorney," while this
"Tito Attorney" was dressing up. In all these happenings, a modicum of decency should have impelled
this "Tito Attorney" to behave more discreetly and more sensitively, as he could not have been unaware
that Marie Nicole was observing him closely and that she could be forming her impressions of lawyers
and the legal profession by the actions and the behavior of this, her "Tito Attorney."

In deciding, upon the appropriate sanction to be imposed upon respondent lawyer in this case, this
Court is ever mindful that administrative disciplinary proceedings are essentially designed to protect the
administration of justice and that this lofty ideal can be attained by requiring that those who are
honored by the title "Attorney" and counsel or at law are men and women of undoubted competence,
unimpeachable integrity and undiminished professionalism, men and women in whom courts and
clients may repose confidence.30 This Court moreover realizes only too well that the power to disbar or
suspend members of the bar ought always to be exercised not in a spirit of spite, hostility or
vindictiveness, but on the preservative and corrective principle, with a view to safeguarding the purity
of the legal profession. Hence, that power can be summoned only in the service of the most compelling
duty, which must be performed, in light of incontrovertible evidence of grave misconduct, which
seriously taints the reputation and character of the lawyer as an officer of the court and as member of
the Bar.31 It goes without saying moreover that it should not be exercised or asserted when a lesser
penalty or sanction would accomplish the end desired.32

In the context of the circumstances obtaining in this case, and hewing to jurisprudential precedence,
and considering furthermore that this is respondent lawyer's first offense, this Court believes that a one-
month suspension from the practice of law, as recommended by the IBP, would suffice.

WHEREFORE, premises considered, respondent lawyer Atty. Berardo C. Faundo, Jr. is hereby
SUSPENDED from the practice of law for one (1) month, reckoned from receipt of a copy or this
Decision. He is hereby WARNED to be more careful and more circumspect in all his actions, and to be
mindful of the kind of example be holds up, especially to impressionable young people, lest he brings
upon himself a direr fate the second time around.

Let a copy of this Decision be entered into the personal records of Atty. Berardo C. Faundo, Jr. as a
member or the Bar, and copies furnished the Office of the Bar Confidant, the Integrated Bar of the
Philippines, and the Office of the Court Administrator for circulation to all courts in the country.

SO ORDERED.

Leonardo-De Castro,* (Acting Chairperson), Jardeleza, and Gesmundo,*** JJ., concur.

Tijam, J., on official leave.

THIRD DIVISION

A.C. No. 9129, January 31, 2018

MARIA EVA DE MESA, Complainant, v. ATTY. OLIVER O. OLAYBAL, Respondent.

DECISION

BERSAMIN, J.:

We stress, yet again, the fidelity that the attorney owes towards the client. A violation of such fidelity
warrants the sanction of the attorney with suspension from the practice of law.

Antecedents

The complainant charges respondent Atty. Oliver O. Olaybal with betrayal of trust and confidence,
malpractice and gross misconduct as a lawyer.

The complainant avers that the respondent was her counsel in her criminal cases for violation of Batas
Pambansa Blg. 22, specifically: Criminal Case No. 88229, filed in the Metropolitan Trial Court in Pasig City
(Pasig Case), Br. 72, and Criminal Case Nos. 26685 to 26688, filed in the Municipal Circuit Trial Court
(MCTC), Branch 2, in Legaspi City (Legaspi Case); that as regards the Pasig Case, he advised her to settle
amicably for the amount of P78,640.00; that following his advice, she procured, through the help of
Rowena Basco, her sister, Prudential Bank Manager's Checks No. 5574 and No. 5575 dated November
18, 2005 respectively for the amounts of P74,400.00 and P4,240.00; that both checks were crossed and
payable to Asialink Finance Corporation (Asialink); that she handed the checks to the respondent for
delivery to Asialink; that he did not deliver the checks to Asialink, but instead deposited them to his
account through his son; that on February 28, 2006, he executed a compromise agreement with Asialink
on her behalf as settlement of the Pasig Case; that under the compromise agreement, he undertook to
pay Asialink the total sum of P83,328.00 through monthly installment payments of P6,110.75 from
March 28, 2006 to February 28, 2007; that he also executed a deed of undertaking in Asialink's favor,
whereby he guaranteed her monthly payment by issuing 12 post-dated checks in favor of Asialink; and
that with respect to the Legaspi Cases, he failed to file her counter-affidavit on time, thereby
jeopardizing her chances of testifying therein.1

In his answer and position paper, the respondent counters that the two manager's checks worth
P78,640.00 were not in full settlement of the complainant's obligations because he still had to negotiate
with Asialink on the final amount; that before he could negotiate with Asialink's representative, his son
erroneously deposited the manager's checks to his account for safekeeping, without his knowledge and
consent; that he nonetheless succeeded in settling her account with Asialink to her advantage by
reducing her obligation from P115,770.00 to P83,328.00 through the elimination of surcharges and
attorney's fees; that he was authorized to agree to the terms of the compromise agreement by her
sister, Rowena Basco, and that she also agreed, through Atty. Romulo Ricafort, a friend of her mother-
in-law, to implement the terms of the compromise agreement; that he prepared ahead of time the
counter-affidavit to be submitted in the Legaspi Cases, but he was unable to file the same due to her
fault and negligence and those of her witnesses; and that the matter already became moot and
academic in any case inasmuch as the Legaspi Cases were dismissed on October 26, 2006.2

Findings and Recommendation of the

Integrated Bar of the Philippines (IBP)

In his Report and Recommendation dated February 22, 2008,3 IBP Investigating Commissioner Randall
C. Tabayoyong declared that the respondent had misappropriated the amounts of the manager's checks
for his personal gain and benefit in violation of Canon 16, Rule 16.014 of the Code of Professional
Responsibility;5 that his depositing the checks to his account and commingling the proceeds thereof
with his personal funds violated Rule 16.026 of the of the Code of Professional Responsibility;7 and that
his entering into the compromise settlement without authority placed the complainant at risk of
undergoing criminal prosecution and conviction, thereby failing to safeguard her interest in violation of
his ethical duty under Canon 188 of the Code of Professional Responsibility.

Anent the penalty to be imposed upon the respondent, IBP Investigating Commissioner Tabayoyong,
taking into consideration the respondent's age and his efforts to rectify his wrongdoing, such as: (a)
executing a deed of undertaking in favor of Asialink to guarantee the complainant's monthly installment
payment under the compromise agreement; (b) issuing checks from his own checking account as the
complainant's payment under the compromise agreement; and (c) bearing the P4,098.00 difference
between the settlement amount and the amount given to him by the complainant,9 recommended as
follows:

WHEREFORE, it is therefore respectfully recommended that respondent be suspended for six (6) months
for having violated Canons 16 and 18 and Rules 16.01 and 16.02 of the Code of Professional
Responsibility.10

In its Resolution No. XVIII-2008-159 dated April 15, 2008, the IBP Board of Governors adopted and
approved the report of IBP Investigating Commissioner Tabayoyong, but modified the recommended
penalty by also requiring the return of the amount of P78,640.00 to the complainant within 30 days
from notice, viz.:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the
Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein
made part of this Resolution as Annex "A"; and, finding the recommendation fully supported by the
evidence on record and the applicable laws and rules, and considering respondent's violations of Canons
16 and 17 and Rule 16.01 and 16.02 of the Code of Professional Responsibility, Atty. Oliver O. Olaybal is
hereby SUSPENDED from the practice of law for six (6) months and Ordered to Return the P78,640.00 to
complainant within Thirty (30) days from receipt of notice.11

The respondent sought reconsideration,12 but the IBP Board of Governors denied his motion via
Resolution No. XIX-2011-390 dated June 26, 2011.13
Issues

Were the findings and recommendations of the IBP Board of Governors proper?

Ruling of the Court

We sustain the findings and recommendation of the IBP Board of Governors.

The records show that the respondent received from the complainant crossed manager's checks payable
to Asialink worth P78,640.00 representing the settlement amount for her criminal cases; that instead of
immediately transmitting the checks to Asialink, he managed to deposit the same to his personal
account for collection; and that he asserted as explanation for the deposit of the checks in his personal
account that the deposit was due to the honest mistake of his son in order to prevent the checks from
becoming stale.

We agree with the findings of the IBP Investigating Commissioner and IBP Board of Governors that the
explanation of the respondent was improbable for being contrary to human experience. We reiterate
the IBP Investigating Commissioner's observations on the matter:

x x x It bears stressing that the subject checks were not only payable to Asialink, but were duly crossed.
Hence, under existing banking rules and regulations and common commercial practice, these checks can
only be deposited to the account of Asialink and to no other. It is quite perplexing to believe that
respondent's son would even think that these checks belonged to his father and would, without even
asking him, "mistakenly" deposit these checks to his account, for the faces of both checks unmistakably
show that these should be given to Asialink. This Office is similarly unconvinced of the claim that the
checks were deposited so that these would not become stale. As shown by the faces of these checks,
these were issued in November 18, 2005 and would become stale, six (6) months thereafter. Yet, after
the lapse of about two (2) weeks, or on December 1, 2005, the said checks were already deposited to
respondent's account. Thus, at the time of their deposit, the subject checks were clearly far from being
stale. Accordingly, respondent's explanation is devoid of any probative value not only because it is
uncorroborated, but also because it is contrary to human experience.14

The respondent's failure to deliver the checks to Asialink and instead depositing the checks in his
account and thereafter misappropriating the funds thereof for his personal benefit constituted a serious
breach by him of Canon 16, Rule 16.01; and Rule 16.02 of the Code of Professional Responsibility, which
state as follows:

Canon 16 — A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND PROPERTIES OF HIS CLIENT THAT MAY
COME TO HIS POSSESSION.

Rule 16.01 — A lawyer shall account for all money or property collected or received for or from the
client.

Rule 16.02 — A lawyer shall keep the funds of each client separate and apart from his own and those of
others kept by him.
The respondent flagrantly violated these canons of ethical conduct and professionalism, and should be
held responsible. We can never understate that the relationship between a lawyer and his client is
highly fiduciary, and imposes on the former a great degree of fidelity and good faith.15 Thus, any money
or property received by him from his client for delivery to another in the context of the relationship is
merely held by him in trust and should not be appropriated for his own benefit. For him to do otherwise
is a violation of his oath as an attorney and officer of the Court.

Also, the respondent's act of binding the complainant to the terms of the compromise agreement even
if he had not been expressly and properly authorized to do so reflected his disregard of the duty of
fidelity that he owed at all times towards her as the client. He thereby violated Canon 17 of the Code of
Professional Responsibility, viz.:

CANON 17 - A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE
TRUST AND CONFIDENCE REPOSED IN HIM.

The IBP Board of Governors recommended that the respondent be suspended from the practice of law
for six months after taking due consideration of the various circumstances attendant to his case. The
recommendation is well taken. Any breach of the fidelity towards the client that an attorney commits
justifies the penalty of his suspension from the practice of law for a period of time.

WHEREFORE, the Court SUSPENDS respondent ATTY. OLIVER O. OLAYBAL from the practice of law for a
period of six months effective upon receipt hereof; ORDERS him to return to the complainant the
amount of P78,640.00 within 30 days from receipt hereof; and WARNS him that a stiffer penalty will be
imposed on him should he commit a similar offense hereafter.

Let copies of this decision be attached to the personal records of ATTY. OLIVER O. OLAYBAL as a member
of the Philippine Bar, and be furnished to the Office of the Court Administrator for proper dissemination
to all courts throughout the country. Copies shall further be furnished to the Office of the Bar Confidant
and the Integrated Bar of the Philippines.

SO ORDERED.
A.C. No. 10689

ROMEO A. ALMARIO, Complainant

vs.

ATTY. DOMINICA LLERA-AGNO, Respondent

DECISION

DEL CASTILLO, J.:

This administrative case stemmed from a Complaint1 filed by complainant Romeo A. Almario
(complainant) before the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP)
seeking to disbar Atty. Dominica L. Agno (respondent lawyer), for notarizing a Special Power of Attorney
(SPA) without the personal appearance of one of the affiants therein.

Factual Background

On July 5, 2006, a Complaint for Judicial Partition with Delivery of Certificate of Title, docketed as Civil
Case No. 061154162 (civil case), was instituted before the Regional Trial Court (RTC) of Manila by the
herein complainant against therein defendants Angelita A. Barrameda and several other persons. It was
therein alleged that complainant is the sole surviving registered owner of a parcel of land situated at No.
973 Del Pan Street, San Antonio, Tondo, Manila, covered by Transfer Certificate of Title (TCT) No.
244909, and that the defendants therein are co-owners of that parcel of land by virtue of intestate
succession.

Relative to the said civil case, herein respondent lawyer, as counsel for therein defendants, notarized
and acknowledged a SPA3 which reads:

SPECIAL POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS:

WE, x x x the HEIRS OF THE LATE VICTORIA ALMARIO, to wit: RONALD A. GA TD ULA, of legal age,
Filipino, married, and a resident of 973 Del Pan St., Tondo, Manila and FRANCISCA A. MALLARI, of the
same address, do hereby appoint, name and constitute also MA. LOURDES ALMARIO P. PEDIA, above
named, to do the following acts and things:

1. To act as our representative and agent in administering our property x x x located at District of Tondo,
City of Manila consisting of SEVENTY EIGHT SQUARE METERS AND SIXTY FIVE DECIMETERS (78.65)
Square meters, covered by TCT No. T-244909 of the [Register] of Deeds of the City of Manila;

xxxx

HEREBY GIVING AND GRANTING unto our said attorney-in-fact full power and authority, whatsoever
requisite to be done in or about the premises, as fully as we might or could lawfully do if personally
present and hereby ratifying and confirming all that our said attorney shall do or cause to be done by
virtue of these presents until revoked in writing by me.

IN WITNESS WHEREOF, we have signed this instrument on the 26th day of July 2006 at Muntinlupa City.

xxxx

HEIRS OF THE LATE VICTORIA A. ALMARIO:

(Signed)

RONALD A. GATDULA

(Signed)

FRANCISCA A. MALLARI

xxxx

ACKNOWLEDGMENT

REPUBLIC OF THE PHILIPPINES) SS.

CITY OF MUNTINLUPA )

BEFORE ME, a notary public for the City of Muntinlupa, personally appeared the following persons on
the 26[th] day of July 2006:

xxxx

Ronald A. Gatdula with CTC No. 16785315 issued at Manila on 1-19-06 Francisca Mallari with CTC No.
16785314 issued at Manila on 1-19-06 known to me and to me known to be the same persons who
executed the foregoing Special Power of Attorney, consisting of three (3) pages including this page
where the acknowledgement is written, signed by the parties and their instrumental witnesses and they
acknowledged to me that the same is their own true act and deed.

WITNESS MY HAND AND SEAL.

(Signed)

DOMINICA L. AGNO

Notary Public

Until 31 Dec 2006

PTR No. 0007769

Muntinlupa City
06 January 2006

IBP Life Roll 00577

Doc. No. 193

Page No. 55

Book No. 11

Series of 2006

It is complainant's contention: (l) that the said SP A was falsified because one of the affiants therein,
Francisca A. Mallari (Mallari),4 could not possibly have executed the same because she was in Japan at
the time the SP A was executed, as certified to5 by the Bureau of Immigration (BI); (2) that this SP A was
used in the said civil case to perpetrate fraud and deception against complainant resulting in the filing of
Criminal Case No. 452612-CR, for violation of Article 172 of the Revised Penal Code (Use of Falsified
Document) against Ma. Lourdes Almario Pedia, (Pedia), the attorney-in-fact mentioned in the SPA; (3)
that respondent lawyer notarized the SP A although Mallari did not personally appear before her; (4)
that in the process of notarizing the SP A, respondent lawyer also accepted a Community Tax Certificate
(CTC), which is no longer considered a competent evidence of identity pursuant to the 2004 Rules on
Notarial Practice; and (5) that, therefore, respondent lawyer violated Canons 1 and 10 of the Code of
Professional Responsibility, which state -

CANON 1 - A lawyer shall uphold the Constitution, obey the laws of the land and promote respect for
law and legal processes.

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

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.

Rule 1.03 - A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or
delay any man's cause.

xxxx

CANON 10 - A lawyer owes candor, fairness and good faith to the court.

Rule 10.01 -A lawyer shall not do any falsehood, nor consent to the doing of any in court; nor shall he
mislead, or allow the Court to be misled by any artifice.

In her Answer,6 respondent lawyer prayed for the dismissal of the complaint and offered the following
arguments:

1) On July 12, 2006, Pedia sent the SPA to Mallari in Japan and it was brought back to the Philippines on
July 25, 2006 by Mallari's son, Roman Mallari-Vestido;
2) The SPA was notarized on July 26, 2006 for reasons of expediency, because therein defendants were
pressed for time in filing their Answer in the civil case, and that in any event, Mallari undertook to have
the SPA acknowledged before the Philippine Consulate in Tokyo, Japan on August 28, 2006, (thereby
giving it retroactive effect). Respondent lawyer claimed that the aforementioned circumstances showed
that she acted in good faith in notarizing the SPA;

3) Mallari was able to acknowledge the SP A with red ribbon7 before the Philippine Consulate in Tokyo,
Japan on August 28, 2006;

4) Neither fraud nor deception was perpetrated as the parties in the said civil case executed a
Compromise Agreement,8 which was approved by the RTC;9

5) Contrary to complainant's claim, CTCs are still presently accepted as proof of personal identification in
cases where no other proof of personal identification is available; and,

6) That, if at all, it was complainant himself who defrauded the RTC when he stated in his verified
complaint that Mallari is a resident of No. 973 Del Pan St., San Antonio, Tondo, Manila, even though he
knew that Mallari was in Japan at the time of filing of the civil case.

Report and Recommendation of the Investigating Commissioner

In a Report and Recommendation,10 the Investigating Commissioner found respondent lawyer liable for
violation of Section 12 of the 2004 Rules on Notarial Practice and recommended that she be suspended
for six months as notary public.

According to the Investigating Commissioner, it was evident that respondent lawyer notarized the SPA
despite knowing that Mallari, one of the affiants therein, did not personally appear before her.

Recommendation of the IBP Board of Governors

On April 16, 2013, the Board of Governors of the IBP issued a Resolution11 adopting the finding and
approving the recommendation of the Investigating Commissioner.

Respondent lawyer filed a verified Motion for Reconsideration,12 which was denied by the IBP Board of
Governors in a Resolution13 dated May 3, 2014.

Hence, the instant Petition for Review.

Respondent lawyer admits the infraction imputed against her, and simply pleads that the penalty
recommended by the IBP be reduced or lowered. She argues that: (1) this is her first offense since she
was first commissioned as a notary public in 1973; (2) the case involved only one document; (3) the
notarization was done in good faith; (4) the civil case wherein the questioned SP A was used ended in a
Compromise Agreement; and finally (5) she is already 71 years old and is truly sorry for what she had
done, and promises to be more circumspect in the performance of her duties as a notary public.14
In his Comment15 to the Petition, complainant insists that respondent lawyer must be disciplined
accordingly and that suspension is the appropriate penalty for such infraction.

The sole issue that this Court must thus address is the appropriate penalty to be meted out against
respondent lawyer.

Our Ruling

The importance of the affiant's personal appearance when a document is notarized is underscored by
Section 1, Rule II of the 2004 Rules on Notarial Practice which states:

SECTION 1. Acknowledgment. - 'Acknowledgment' refers to an act in which an individual on a single

occasion:

(a) appears in person before the notary public and presents an integrally complete instrument or
document;

(b) is attested to be personally known to the notary public or identified by the notary public through
competent evidence of identity as defined by these Rules; and

(c) represents to the notary public that the signature on the instrument or document was voluntarily
affixed by him for the purposes stated in the instrument or document, declares that he has executed the
instrument or document as his free and voluntary act and deed, and, if he acts in a particular
representative capacity, that he has the authority to sign in that capacity. (Emphasis supplied)

Furthermore, Section 2(b), Rule 1V of the same Rules provides that:

(b) A person shall not perform a notarial act if the person involved as signatory to the instrument or
document –

(1) is not in the notary's presence personally at the time of the notarization; and

(2) is not personally known to the notary public or otherwise identified by the notary public through
competent evidence of identity as defined by these Rules. (Emphasis supplied)

These provisions mandate the notary public to require the physical or personal presence of the person/s
who executed a document, before notarizing the same. In other words, a document should not be
notarized unless the person/s who is/are executing it is/are personally or physically present before the
notary public. The personal and physical presence of the parties to the deed is necessary to enable the
notary public to verify the genuineness of the signature/s of the affiant/s therein and the due execution
of the document.

Notaries public are absolutely prohibited or forbidden from notarizing a fictitious or spurious
document.1âwphi1 They are the law's vanguards and sentinels against illegal deeds. The confidence of
the public in the integrity of notarial acts would be undermined and impaired if notaries public do not
observe with utmost care the basic requirements in the performance of their duties spelled out in the
notarial law.

This Court, in Ferguson v. Atty. Ramos, 16 held that "notarization is not an empty, meaningless and
routinary act[;i]t is imbued with public interest x xx."

In cognate or similar cases,17 this Court likewise held that a notary public must not notarize a document
unless the persons who signed it are the very same persons who executed the same, and personally
appeared before him to attest to the truth of the contents thereof. The purpose of this requirement is to
enable the notary public to verify the genuineness of the signature of the acknowledging party and to
ascertain that the document is the party's free and voluntary act and deed.

In the present case, the SPA in question was notarized by respondent lawyer despite the absence of
Mallari, one of the affiants therein. Mallari could not have personally appeared before respondent
lawyer in Muntinlupa City, Philippines where the SPA was notarized on July 26, 2006 because Mallari
was in Japan at that time, as certified to by the Bureau of Immigration.

It goes without saying that it was respondent lawyer's bounden duty, as a lawyer and notary public, to
obey the laws of the land and to promote respect for legal processes. Respondent lawyer may only
forsake this duty at the risk of forfeiting her membership in the Philippine Bar and the revocation of her
license as a notary public. Considering however, the circumstances attendant upon this case, we resolve
to reduce or lower the recommended penalty on respondent lawyer.

The Court opts to suspend respondent lawyer as a notary public for two months, instead of six months
as the IBP had recommended. We are impelled by the following reasons for taking this course of action:
first, the apparent absence of bad faith in her notarizing the SP A in question; second, the civil case
wherein the flawed SP A was used ended up in a judicial Compromise Agreement; and finally, this is her
first administrative case since she was commissioned as a Notary Public in 1973. In addition, respondent
lawyer invites our attention to the fact that she is already in the twilight years of her life.

ACCORDINGLY, respondent Atty. Dominica L. Agno is hereby SUSPENDED as Notary Public for the
aforesaid infraction for two months and WARNED that the commission of a similar infraction will be
dealt with more severely.

Let copies of this Decision be furnished the Office of the Bar Confidant, to be appended to Atty. Agno's
personal record. Further, let copies of this Decision be furnished the Integrated Bar of the Philippines
and the Office of the Court Administrator, which is directed to circulate them to all courts in the country
for their info1mation and guidance.

SO ORDERED.
SECOND DIVISION

A.C. No. 10684, January 24, 2018

ILUMINADA D. YUZON, Complainant, v. ATTY. ARNULFO M. AGLERON, Respondent.

DECISION

PERALTA, J.:

This administrative case arose from a Complaint1 filed by Iluminada Yuzon Vda. de Rodriguez
(Iluminada) before the Integrated Bar of the Philippines-Commission on Bar Discipline (IBP-CBD) seeking
to disbar Atty. Arnulfo M. Agleron (Atty. Agleron), for misappropriating the amount of P582,000.00
which the respondent lawyer received in trust from the complainant.

Complainant's Position

Iluminada alleged that sometime on December 23, 2008, she gave Atty. Agleron the amount of
Php400,000.00, and on January 12, 2009, the amount of P600,000.00 in Managers Check, or the total
amount of One Million Pesos (P1,000,000.00) meant for the purchase of a house and a lot of one
Alexander Tenebroso (Alexander), situated at Mati, Davao Oriental. However, since the intended
purchase did not materialize, Iluminada demanded the return of the aforesaid amounts that she
entrusted to Atty. Agleron, which the latter failed to return. On February 24, 2009, Iluminada, through
her lawyer Atty. Vivencio V. Jumamil (Atty. Vivencio), through a letter, demanded the return of the
amount of P750,000.00. On March 2, 2009, Atty. Agleron replied through a letter and explained that he
already returned the amount of P418,000.00, and that the remaining balance is only P582,000.00 which
shall be paid upon payment of his client who borrowed the said amount for his emergency operation
after an accident which took place on January 13, 2009.

Iluminada also alleged that she filed an Estafa case under Article 315, paragraph 1(B) of the Revised
Penal Code against Atty. Agleron.

Respondent's Position

Atty. Agleron, among others, claims that the amount of One Million Pesos (P1,000,000.00) was delivered
to him at the Office of the Metropolitan Bank and Trust Co., Davao City upon the maturity of two (2)
postdated checks issued by Reverend Pastor Apollo Quiboloy (Rev. Quiboloy); that the amount of
P600,000.00 was delivered on December 15, 2008, and the other check which matured on January 15,
2009, in the amount of P400,000.00, were all deposited with the Philippine National Bank, Mati Branch
for safekeeping, while awaiting for the finalization of the transaction with Alexander regarding the
acquisition of the house subject of Civil Case No. 2287-7-2007, then pending in the Municipal Trial Court
of Mati, Davao Oriental; and that the total amount of P438,000.00 was delivered to herein Iluminada on
different occasions, as per her request, and that the balance of P582,000.00 was never misappropriated
and/or converted to the personal use and benefit of Atty. Agleron as the said amount was borrowed for
the emergency operation of a client who, at that time has nobody to turn to for help. Thus, Atty.
Agleron's infraction should not warrant the imposition of the supreme penalty of disbarment. Atty.
Agleron prayed that, if he be found guilty, the lesser penalty of fine should be imposed considering he
rendered almost fifty (50) years of service in the government, and he is also an Officer and Member of
the IBP, Davao Oriental Chapter.

Report and Recommendation

After the mandatory conference on January 17, 2012 and upon a thorough evaluation of the evidence
presented by the parties in their respective position papers, the IBP-CBD submitted its Report and
Recommendation, dated March 30, 2012, finding Atty. Agleron to have violated Section 27,2 Rule 138 of
the Rules of Court. Thus, the IBP Investigating Commissioner found Atty. Agleron administratively liable
and recommended that he be meted the penalty of suspension from the practice of law for one (1) year.
This ruling is based on Atty. Agleron's admission that he is still in possession of the amount of
P582,000.00.

Thus, the Investigating Commissioner is convinced that Atty. Agleron is guilty of Gross Misconduct under
Section 27, Rule 138 for violating his duty to his client by converting and using his client's money.
Accordingly, the penalty of suspension of one (1) year from the practice of law in any court was imposed
on Atty. Agleron. The various mitigating factors: that Atty. Agleron has been a Member and Officer of
the IBP Davao Oriental Chapter; that he has been in the practice of law, as Assistant and later on as
Provincial Fiscal; and, that he was able to retire from the government service for a span of almost fifty
(50) years sans any disciplinary records were taken into consideration. The Commissioner also
recommended the return to Iluminada of the amount of P582,000.00 with legal interest of twelve
percent (12%) from May 5, 2010, with warning that a repetition of similar act shall be dealt with more
severely.

In a Resolution3 dated August 31, 2013, the IBP Board of Governors adopted and approved the
aforesaid Report and Recommendation. Atty. Agleron moved for reconsideration,4 whereas Iluminada
moved for a partial reconsideration5 explaining that the penalty meted on Atty. Agleron dilutes the very
essence of the offense charged. However, both were denied by the IBP Board of Governors through a
Notice of Resolution No. XXI-2014-3296 dated May 4, 2014.

Atty. Agleron filed with this Court an Urgent Motion for the Immediate Lifting of the Order of
Suspension dated August 31, 2013,7 and affirmed by Resolution No. XXI-2014-3298 dated May 4, 2014,
of the IBP Board of Governors. Thus, this Court issued a Resolution9 dated January 18, 2016 referring to
the Office of the Bar Confidant (OBC) Atty. Agleron's Urgent Motion for the Immediate Lifting of the
Order of Suspension.

The Obc's Report and Recommendation

The OBC recommended that the merit of this case be finally resolved by this Court for the proper
determination of the order of suspension imposed on Atty. Agleron. The OBC further recommended that
Atty. Agleron's Urgent Motion for the Immediate Lifting of the Order of Suspension issued by the IBP on
August 31, 2013, be denied.
The Issue before the Court

The basic issue, in this case, is the effectivity of the order of suspension imposed on Atty. Agleron.

The Court's Ruling

The Court resolves to adopt the findings of fact of the IBP.

Here, there is no question as to whether or not the respondent lawyer misappropriated the amount of
money the complainant entrusted to him, since Atty. Agleron already admitted the same, in clear
violation of his fiduciary duty to his client. Jurisprudence is instructive that a lawyer's failure to return
upon demand the monies he/she holds for his/her client gives rise to the presumption that he/she has
appropriated the said monies for his/her own use, to the prejudice and in violation of the trust reposed
in him/her by his/her client.10

Proceeding from the premise that indeed Atty. Agleron merely wanted to help another client who is
going through financial woes, he, nevertheless, acted in disregard of his duty as a lawyer with respect to
Iluminada. Such act is a gross violation of general morality, as well as of professional ethics.11

It is of no moment as well that Atty. Agleron's property has been subjected to a levy;12 thus, his claim in
his Urgent Motion for the Immediate Lifting of the Order of Suspension13 that with such levy he has
even overpaid Iluminada, considering that the total value of his property is P2,912,000.00 is bereft of
merit. Levy is defined as the act or acts by which an officer of the law and court sets apart or
appropriates a part or the whole of the loser's (judgment debtor's) property for the purpose of
eventually conducting an execution sale to the end that the writ of execution may be satisfied, and the
judgment debt, paid.14 Thus, there must be an execution sale first before he can claim that he already
complied with his legal obligation.

Further, respondent also violated Rules 16.01 and 16.03, Canon 16 of the Code of Professional
Responsibility (CPR) when he failed to return upon demand the amount Iluminada entrusted to him, viz.:

CANON 16 — A LAWYER SHALL HOLD IN TRUST ALL MONIES AND PROPERTIES OF HIS CLIENT THAT MAY
COME INTO HIS POSSESSION.

Rule 16.01 — A lawyer shall account for all money or property collected or received for or from the
client.

xxxx

Rule 16.03 — A lawyer shall deliver the funds and property of his client when due or upon demand. x x
x15

Verily, the relationship between a lawyer and his client is highly fiduciary and prescribes on a lawyer a
great fidelity and good faith. The highly fiduciary nature of this relationship imposes upon the lawyer the
duty to account for the money or property collected or received for or from his client.16 Thus, a lawyer's
failure to return upon demand the funds held by him on behalf of his client, as in this case, gives rise to
the presumption that he has appropriated the same for his own use in violation of the trust reposed in
him by his client.17

As to the issue on when is the effectivity of the order of suspension, the OBC aptly explained in its
Report and Recommendation dated February 16, 2016, that the Court merely noted the IBP's Notice of
Resolution which suspended Atty. Agleron from the practice of law and that such act does not imply the
approval of the same. Here, this Court is yet to finally resolve first the merit of this administrative case.
Thus, the effectivity of the order of suspension has not actually commenced and it is erroneous on Atty.
Agleron's part to claim in his Motion18 dated August 6, 2015, that he has already served the one (1)
year suspension from the date of the issuance of the IBP Notice of Resolution on August 31, 2013, to
August 31, 2014, is bereft of merit.

Jurisprudence is instructive that as guardian of the legal profession, this Court has the ultimate
disciplinary power over members of the Bar to ensure that the highest standards of competence,
honesty and fair dealing are maintained.19 Verily, this Court has the final say on imposition of sanctions
to be imposed on errant members of both bench and bar, this Court has the prerogative of making its
own findings and rendering judgment on the basis thereof rather than that of the IBP, OSG, or any lower
court to whom an administrative complaint has been referred to for investigation and report.20

Section 12 of Rule 139-B reads:

Section 12. Review and Decision by the Board of Governors.—

(b) If the Board, by the vote of a majority of its total membership, determines that the respondent
should be suspended from the practice of law or disbarred, it shall issue a resolution setting forth its
findings and recommendations which, together with the whole record of the case, shall forthwith be
transmitted to the Supreme Court for final action.

WHEREFORE, respondent Atty. Arnulfo M. Agleron is hereby held GUILTY of Gross Misconduct in
violation of Section 27, Rule 138 of the Rules of Court, as well as Rules 16.01 and 16.03, Canon 16 of the
Code of Professional Responsibility. Accordingly, he is hereby SUSPENDED from the practice of law for a
period of one (1) year, with a WARNING that a repetition of the same or similar acts in the future will be
dealt with more severely. Respondent is also ORDERED to PAY complainant the amount of Five Hundred
Eighty-Two Thousand Pesos (P582,000.00), with twelve percent (12%) interest from the date of demand
until June 30, 2013 and six percent (6%) per annum from July 1, 2013 until full payment.21

Let a copy of this Decision be furnished to the Office of the Bar Confidant, to be appended to the
personal record of respondent; the Integrated Bar of the Philippines; and the Office of the Court
Administrator, for circulation to all courts in the country for their information and guidance.

This Decision shall be immediately executory.

SO ORDERED.
EN BANC

January 10, 2018

A.C. No. 8208

RET. JUDGE VIRGILIO ALPAJORA, Complainant

vs.

ATTY. RONALDO ANTONIO V. CALAYAN, Respondent

DECISION

GESMUNDO, J.:

Before the Court is a Counter-Complaint1 filed by complainant (Ret.) Judge Virgilio Alpajora
(Complainant) against respondent Atty. Ronaldo Antonio V. Calayan (Respondent), which originated
from an administrative complaint filed by the latter against the former before the Office of the Court
Administrator (OCA) for ignorance of the law and/or issuance of undue order. The administrative
complaint against Judge Alpajora was dismissed by the Court in a Resolution,2 dated March 2, 2009, on
the ground that the matters raised therein were judicial in nature.

In his Comment/Opposition with Counter-Complaint to Discipline Complainant,3 complainant charged

respondent with (a) filing a malicious and harassment administrative case, (b) propensity for dishonesty
in the allegations in his pleadings, (c) misquoting provisions of law, and (d) misrepresentation of facts.
Complainant prayed for respondent's disbarment and cancellation of his license as a lawyer.

The Antecedents

Prior to this case, an intra-corporate case docketed as Civil Case No. 2007-10 and entitled "Calayan
Educational Foundation Inc. (CEFI), Dr. Arminda Calayan, Dr. Bernardita Calayan-Brion and Dr. Manuel
Calayan vs. Atty. Ronalda A.V. Calayan, Susan S. Calayan and Deanna Rachelle S. Calayan, " was filed
before the Regional Trial Court (RTC) of Lucena City designated as commercial court and presided by
Judge Adolfo Encomienda. Respondent was President and Chairman of the Board of Trustees of CEFI. He
signed and filed pleadings as "Special Counsel pro se" for himself. Court proceedings ensued despite
several inhibitions by judges to whom the case was re-raffled until it was finally re-raffled to
complainant. Thereafter, complainant issued an Omnibus Order,4 dated July 11, 2008 for the creation of
a management committee and the appointment of its members. That Order prompted the filing of the
administrative case against the Judge Alpajora.

The administrative case against complainant was dismissed. The Court, however, referred the
comment/opposition with counter-complaint filed by complainant in the administrative case against
him to the Office of the Bar Confidant (OBC) for appropriate action.
The OBC deemed it proper to re-docket the counter-complaint as a regular administrative case against
respondent. Thus, in a Resolution,5 dated June 3, 2009, upon recommendation of the OBC, the Court
resolved to require respondent to submit his comment on the counter-complaint.

In its Resolution,6 dated September 9, 2009, the Court noted respondent's comment and referred the
administrative case to the Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.

After a mandatory conference before the IBP, both parties were directed to submit their respective
verified position papers.

Position of complainant

Complainant alleged that he partially tried and heard Civil Case No. 2007-10, an intra-corporate case
filed against respondent, when he later voluntarily inhibited himself from it on account of the latter's
filing of the administrative case against him.

The intra-corporate case was previously tried by Presiding Judge Adolfo Encomienda (Presiding Judge
Encomienda) until he voluntarily inhibited after respondent filed an Urgent Motion to Recuse and a
Supplement to Defendant's Urgent Motion to Recuse on the grounds of undue delay in disposing
pending incidents, gross ignorance of the law and gross inefficiency.7 The motions came after Presiding
Judge Encomienda issued an order appointing one Atty. Antonio Acyatan (Atty. Acyatan) as receiver,
who was directed to immediately take over the subject corporation.

After Presiding Judge Encomienda inhibited himself, the case was re-raffled to the sala of Executive
Judge Norma Chionglo-Sia, who also inhibited herself because she was about to retire. The case was
referred to Executive Judge Eloida R. de Leon-Diaz for proper disposition and re-raffle.8 The case was
finally raffled to complainant.9

Complainant averred that the administrative case against him by respondent was brought about by his
issuance of the omnibus order, dated July 11, 2008, where he ordered the creation of a management
committee and appointment of its members. Meanwhile, the RTC resolved that Atty. Acyatan continue
to discharge his duties and responsibilities with such powers and authority as the court-appointed
receiver. The trial court also authorized the foundation to pay Atty. Acyatan reimbursement expenses
and professional charges. Complainant claimed that his order was not acceptable to respondent
because he knew the import and effect of the said order - that he, together with his wife and daughter,
would lose their positions as Chairman, Treasurer and Secretary, respectively, and as members of the
Board of Trustees of the CEFI.10

Complainant further claimed that before the records of Civil Case 2007-10 was transmitted to his sala
and after he had inhibited from said case, respondent filed thirteen (13) civil and special actions before
the RTC of Lucena City.11 Atty. Calayan also filed two (2) related intra-corporate controversy cases -
violating the rule on splitting causes of actions - involving the management and operation of the
foundation. According to complainant, these showed the propensity and penchant of respondent in
filing cases, whether or not they are baseless, frivolous or unfounded, with no other intention but to
harass, malign and molest his opposing parties, including the lawyers and the handling judges.
Complainant also revealed that respondent filed two (2) other administrative cases against a judge and
an assisting judge in the RTC of Lucena City, which were dismissed because the issues raised were
judicial in nature.12

Complainant also disclosed that before his sala, respondent filed eighteen (18) repetitious and
prohibited pleadings.13 Respondent continuously filed pleadings after pleadings as if to impress upon
the court to finish the main intra-corporate case with such speed. To complainant's mind, the ultimate
and ulterior objective of respondent in filing the numerous pleadings, motions, manifestation and
explanations was to prevent the takeover of the management of CEFI and to finally dismiss the case at
the pre-trial stage.

Complainant further revealed that due to the series of motions for recusation or inhibition of judges,
there is no presiding judge in Lucena City available to try and hear the Calayan cases. Moreover,
respondent filed nine (9) criminal charges against opposing lawyers and their respective clients before
the City Prosecutor of Lucena City. In addition, there were four (4) administrative cases filed against
opposing counsels pending before the IBP Commission on Bar Discipline.14

Based on the foregoing, complainant asserted that respondent committed the following: (1) serious and
gross misconduct in his duties as counsel for himself; (2) violated his oath as lawyer for [a] his failure to
observe and maintain respect to the courts (Section 20(b), Rule 138, Rules of Court); [b] by his abuse of
judicial process thru maintaining actions or proceedings inconsistent with truth and honor and his acts
to mislead the judge by false statements (Section 20(d), Rule 138); (3) repeatedly violated the rules of
procedures governing intra-corporate cases and maliciously misused the same to defeat the ends of
justice; and (4) knowingly violated the rule against the filing of multiple actions arising from the same
cause of action.

Position of respondent

In his Position Paper,15 respondent countered that the subject case is barred by the doctrine of res
judicata.

According to him, the counter-complaint was integrated with the Comment/Opposition of complainant
in the administrative case docketed as A.M. OCA LP.I. No. 08-2968-RTJ filed by respondent against the
latter. He stressed that because no disciplinary measures were levelled on him by the OCA as an
outcome of his complaint, charges for malpractice, malice or bad faith were entirely ruled out; moreso,
his disbarment was decidedly eliminated.16 Respondent argued that the doctrine of res judicata was
embedded in the OCA's finding that his complaint was judicial in nature.17 He likewise averred that the
conversion of the administrative complaint against a judge into a disbarment complaint against him, the
complaining witness, was hideously adopted to deflect the charges away from complainant. Respondent
insisted that the counter-complaint was not sanctioned by the Rules of Court on disbarment and the
Rules of Procedure of the Commission on Bar Discipline.18
Respondent also claimed that the counter-complaint was unverified and thus, without complainant's
own personal knowledge; instead, it is incontrovertible proof of his lack of courtesy and obedience
toward proper authorities and fairness to a fellow lawyer.19

Further, respondent maintained that complainant committed the following: (1) grossly unethical and
immoral conduct by his impleading a non-party;20 (2) betrayal of his lawyer's oath and the Code of
Professional Responsibility (CPR);21 (3) malicious and intentional delay in not terminating the pre-
trial,22 in violation of the Interim Rules because he ignored the special summary nature of the case;23
and (4) misquoted provisions of law and misrepresented the facts.24

Lastly, it was respondent's submission that the counter-complaint failed to adduce the requisite
quantum of evidence to disbar him, even less, to cite him in contempt of court assuming ex gratia the
regularity of the referral of the case.25

Report and Recommendation of the IBP Commission on Bar Discipline

In its Report and Recommendation,26 the Investigating Commissioner noted that, instead of refuting
the allegations and evidence against him, respondent merely reiterated his charges against complainant.
Instead of asserting his defense against complainant's charges, the position paper for the respondent
appeared more to be a motion for reconsideration of the Resolution dated March 2, 2009 rendered by
the Supreme Court, dismissing the administrative case against complainant.27

In any case, based on the parties' position papers, the Investigating Commissioner concluded that
respondent violated Section 20, Rule 138 of the Rules of Court,28 Rules 8.01, 10.01 to 10.03, 11.03,
11.04, 12.02 and 12.04 of the CPR29 and, thus, recommended his suspension from the practice of law
for two (2) years,30 for the following reasons:

First, respondent did not deny having filed four (4) cases against the counsel involved in the intra-
corporate case from which the subject administrative cases stemmed, and nine (9) criminal cases
against the opposing parties, their lawyers, and the receiver before the Office of the Prosecutor of
Lucena City - all of which were subject of judicial notice. The Investigating Commissioner opined that
such act manifested respondent's malice in paralyzing these lawyers from exerting their utmost effort in
protecting their client's interest.31

Second, respondent committed misrepresentation when he cited a quote from former Chief Justice
Hilario Davide, Jr. as a thesis when, in fact, it was a dissenting opinion. The Investigating Commissioner
further opined that describing the supposed discussions by the judge with respondent's adverse
counsels as contemplated crimes and frauds is not only grave but also unfounded and irrelevant to the
present case.32

Third, respondent grossly abused his right of recourse to the courts by the filing of multiple actions
concerning the same subject matter or seeking substantially identical relief.33 He admitted filing
pleadings indiscriminately, but argued that it was within his right to do so and it was merely for the
purpose of saving CEFI from imminent downfall.34 The Investigating Commissioner opined that the filing
of multiple actions not only was contemptuous, but also a blatant violation of the lawyer's oath.35

Fourth, respondent violated Canon 11 of the CPR by attributing to complainant ill-motives that were not
supported by the record or had no materiality to the case.36 He charged complainant with coaching
adverse counsel on account of their alleged close ties, inefficiency in dealing with his pleadings, acting
with dispatch on the adverse party's motions, partiality to the plaintiffs because he was a townmate of
Presiding Judge Encomienda, and arriving at an order without predicating the same on legal bases under
the principle of stare decisis.37 According to the Investigating Commissioner, these charges are
manifestly without any basis and also established respondent's disrespect for the complainant.38

Based on the findings, the Investigating Commissioner ultimately concluded:

As a party directly involved in the subject intra-corporate controversy, it is duly noted that Respondent
was emotionally affected by the ongoing case. His direct interest in the proceedings apparently clouded
his judgment, on account of which he failed to act with circumspect in his choice of words and legal
remedies. Such facts and circumstances mitigate Respondent's liability. Hence, it is hereby
recommended that Respondent be suspended from the practice of law for two (2) years.39

Consequently, the IBP Board of Governors issued a Resolution40 adopting and approving the report and
recommendation of the Investigating Commissioner. It recommended the suspension of respondent
from the practice of law for two (2) years.

Aggrieved, respondent moved for reconsideration.

In a Resolution,41 dated May 4, 2014, the IBP Board of Governors denied respondent's motion for
reconsideration as there was no cogent reason to reverse the findings of the Commission and the
motion was a mere reiteration of the matters which had already been threshed out.

Hence, pursuant to Section 12(b), Rule 139-B of the Rules of Court,42 the Resolution of the IBP Board of
Governors, together with the whole record of the case, was transmitted to the Court for final action.

Ruling of the Court

The Court adopts the findings of the Investigating Commissioner and the recommendation of the IBP
Board of Governors.

It bears stressing that membership in the bar is a privilege burdened with conditions. It is bestowed
upon individuals who are not only learned in law, but also known to possess good moral character.
Lawyers should act and comport themselves with honesty and integrity in a manner beyond reproach, in
order to promote the public's faith in the legal profession.43

When lawyers, in the performance of their duties, act in a manner that prejudices not only the rights of
their client, but also of their colleagues and offends due administration of justice, appropriate
disciplinary measures and proceedings are available such as reprimand, suspension or even disbarment
to rectify their wrongful acts.

The Court, however, emphasizes that a case for disbarment or suspension is not meant to grant relief to
a complainant as in a civil case, but is intended to cleanse the ranks of the legal profession of its
undesirable members in order to protect the public and the courts.44 Proceedings to discipline erring
members of the bar are not instituted to protect and promote the public good only, but also to maintain
the dignity of the profession by the weeding out of those who have proven themselves unworthy
thereof.45

In this case, perusal of the records reveals that Atty. Calayan has displayed conduct unbecoming of a
worthy lawyer.

Harassing tactics against opposing counsel

As noted by the IBP Investigating Commissioner, respondent did not deny filing several cases, both civil
and criminal, against opposing parties and their counsels. In his motion for reconsideration of the IBP
Board of Governors' Resolution, he again admitted such acts but expressed that it was not ill-willed. He
explained that the placing of CEFI under receivership and directing the creation of a management
committee and the continuation of the receiver's duties and responsibilities by virtue of the Omnibus
Order spurred his filing of various pleadings and/or motions.46 It was in his desperation and earnest
desire to save CEFI from further damage that he implored the aid of the courts.47

The Court is mindful of the lawyer's duty to defend his client's cause with utmost zeal. However,
professional rules impose limits on a lawyer's zeal and hedge it with necessary restrictions and
qualifications.48 The filing of cases by respondent against the adverse parties and their counsels, as
correctly observed by the Investigating Commissioner, manifests his malice in paralyzing the lawyers
from exerting their utmost effort in protecting their client's interest.49 Even assuming arguendo that
such acts were done without malice, it showed respondent's gross indiscretion as a colleague in the
legal profession.

Unsupported ill-motives attributed to a judge

As officers of the court, lawyers are duty-bound to observe and maintain the respect due to the courts
and judicial officers. They are to abstain from offensive or menacing language or behavior before the
court and must refrain from attributing to a judge motives that are not supported by the record or have
no materiality to the case.50

Here, respondent has consistently attributed unsupported imputations against the complainant in his
pleadings. He insisted that complainant antedated the order, dated August 15, 2008, because the
envelopes where the order came from were rubber stamped as having been mailed only on August 26,
2008.51 He also accused the complainant judge of being in cahoots and of having deplorable close ties
with the adverse counsels;52 and that complainant irrefutably coached said adverse counsels.53
However, these bare allegations are absolutely unsupported by any piece of evidence. Respondent did
not present any proof to establish complainant's alleged partiality or the antedating. The date of mailing
indicated on the envelope is not the date of issue of the said order.

Canon 11 and Rule 11.04 of the CPR state that:

Canon 11 - A lawyer shall observe and maintain the respect due to the Courts and to judicial officers and
should insist on similar conduct by others.

xxx

Rule 11.04 A lawyer shall not attribute to a Judge motives not supported by the record or have no
materiality to the case.

In light of the foregoing, the Court finds respondent guilty of attributing unsupported ill-motives to
complainant. It must be remembered that all lawyers are bound to uphold the dignity and authority of
the courts, and to promote confidence in the fair administration of justice. It is the respect for the courts
that guarantees the stability of the judicial institution; elsewise, the institution would be resting on a
very shaky foundation.54

Hence, no matter how passionate a lawyer is towards defending his client's cause, he must not forget to
display the appropriate decorum expected of him, being a member of the legal profession, and to
continue to afford proper and utmost respect due to the courts.

Failure to observe candor, fairness and good faith before the court; failure to assist in the speedy and
efficient administration of justice

It cannot be gainsaid that candidness, especially towards the courts, is essential for the expeditious
administration of justice. Courts are entitled to expect only complete candor and honesty from the
lawyers appearing and pleading before them. A lawyer, on the other hand, has the fundamental duty to
satisfy that expectation. Otherwise, the administration of justice would gravely suffer if indeed it could
proceed at all.55

In his Motion for Reconsideration56 of the Resolution dated February 10, 2014 of the IBP Board of
Governors, respondent wrote:

Anent, the Respondent's alleged commission of falsehood in his pleadings, suffice it to state that if
certain pleadings prepared by the Respondent contained some allegations that turned out to be
inaccurate, the same were nevertheless unintentional and only arose out of the Respondent's honest
misappreciation of certain facts;57

The records, however, showed that respondent's allegations were not brought about by mere
inaccuracy. For one of his arguments against the complainant, respondent relied on Rule 9 of the
Interim Rules of Procedure for Intra-Corporate Controversies which provides:
SECTION 1. Creation of a Management Committee. - As an incident to any of the cases filed under these
Rules or the Interim Rules on Corporate Rehabilitation, A PARTY MAY APPLY for the appointment of a
management committee for the corporation, partnership or association, when there is imminent danger
of: xxx [Emphasis supplied]

He stressed that the courts cannot motu proprio legally direct the appointment of a management
committee when the Interim Rules predicate such appointment exclusively upon the application of a
party in the complaint a quo.58

By employing the term "exclusively" to describe the class of persons who can apply for the appointment
of a management committee,59 respondent tried to mislead the Court. Lawyers are well aware of the
tenor of a provision of law when "may" is used. "May" is construed as permissive and operating to
confer discretion.60 Thus, when the Interim Rules stated that "a party may apply x x x, " it did not
connote exclusivity to a certain class. It simply meant that should a party opt for the appointment of
such, it may do so. It does not, however, exclude the courts from ordering the appointment of a
management committee should the surrounding circumstances of the case warrant such.

Further, as regards his alleged misquotation, respondent argues that he should have been cited in
contempt.1âwphi1 He found justification in Cortes vs. Bangalan,61 to wit:

xxx. The alleged offensive and contemptuous language contained in the letter-complaint was not
directed to the respondent court. As observed by the Court Administrator, "what respondent should
have done in this particular case is that he should have given the Court (Supreme Court) the opportunity
to rule on the complaint and not simply acted precipitately in citing complainant in contempt of court in
a manner which obviously smacks of retaliation rather than the upholding of a court's honor."

A judge may not hold a party in contempt of court for expressing concern on his impartiality even if the
judge may have been insulted therein. While the power to punish in contempt is inherent in all courts so
as to preserve order in judicial proceedings and to uphold the due administration of justice, judges,
however, should exercise their contempt powers judiciously and sparingly, with utmost restraint, and
with the end in view of utilizing their contempt powers for correction and preservation not for
retaliation or vindication.62

As correctly pointed out by the Investigating Commissioner, the jurisprudence quoted precisely cautions
a judge against citing a party in contempt, which is totally contradictory to the position of respondent.
He misrepresented the text of a decision, in violation of the CPR.

Moreover, in defense of the multiple pleadings he filed, respondent avers that there is no law or rule
that limits the number of motions, pleadings and even cases as long as they are sufficient in form and
substance and not violative of the prohibition against forum shopping.63 He maintains that his pleadings
were filed in utmost good faith and for noble causes, and that he was merely exercising his
constitutionally protected rights to due process and speedy disposition of cases.64
Ironically, Atty. Calayan's indiscriminate filing of pleadings, motions, civil and criminal cases, and even
administrative cases against different trial court judges relating to controversies involving CEFI, in fact,
runs counter to the speedy disposition of cases. It frustrates the administration of justice. It degrades
the dignity and integrity of the courts.

A lawyer does not have an unbridled right to file pleadings, motions and cases as he pleases. Limitations
can be inferred from the following rules:

1. Rules of Court

a. Rule 71, Section 3. Indirect Contempt to be Punished After Charge and Hearing. - After charge in
writing has been filed, and an opportunity given to the respondent to comment thereon within such
period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the
following acts may be punished for indirect contempt:

xxx

(c) Any abuse of or any unlawful interference with the processes or proceedings of a court not
constituting direct contempt under Section 1 of this Rule;

(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the
administration of justice;

xxx

2. Code of Professional Responsibility

a. Canon 1 - A lawyer shall uphold the constitution, obey the laws of the land and promote respect for
law and for legal processes.

b. Canon 10, Rule 10.03 - A lawyer shall observe the rules of procedure and shall not misuse them to
defeat the ends of justice.

c. Canon 12 - A lawyer shall exert every effort and consider it his duty to assist in the speedy and
efficient administration of justice.

d. Canon 12, Rule 12.04 -A lawyer shall not unduly delay a case, impede the execution of a Judgment or
misuse Court processes.

Respondent justifies his filing of administrative cases against certain judges, including complainant, by
relying on In Re: Almacen (Almacen).65 He claims that the mandate of the ruling laid down in Almacen
was to encourage lawyers' criticism of erring magistrates.66

In Almacen, however, it did not mandate but merely recognized the right of a lawyer, both as an officer
of the court and as a citizen, to criticize in properly respectful terms and through legitimate channels the
acts of courts and judges.67 In addition, the Court therein emphasized that these criticisms are subject
to a condition, to wit:
But it is the cardinal condition of all such criticism that it shall be bona fide, and shall not spill over the
walls of decency and propriety. A wide chasm exists between fair criticism, on the one hand, and abuse
and slander of courts and the judges thereof, on the other. Intemperate and unfair criticism is a gross
violation of the duty of respect to courts. It is such a misconduct that subjects a lawyer to disciplinary
action.68 [Emphasis supplied.]

Indubitably, the acts of respondent were in violation of his duty to observe and maintain the respect due
to the courts of justice and judicial officers and his duty to never seek to mislead the judge or any
judicial officer.69

In his last ditch attempt to escape liability, respondent apologized for not being more circumspect with
his remedies and choice of words. He admitted losing objectivity and becoming emotional while
pursuing the cases involving him and the CEFI. The Court, however, reiterates that a lawyer's duty, is not
to his client but primarily to the administration of justice. To that end, his client's success is wholly
subordinate. His conduct ought to, and must always, be scrupulously observant of the law and ethics.
Any means, not honorable, fair and honest which is resorted to by the lawyer, even in the pursuit of his
devotion to his client's cause, is condemnable and unethical.70

For having violated the CPR and the Lawyer's Oath, respondent's conduct should be meted with a
commensurate penalty.

WHEREFORE, the Court ADOPTS and APPROVES the Resolution of the Integrated Bar of the Philippines -
Board of Governors dated September 28, 2013. Accordingly, Atty. Ronaldo Antonio V. Calayan is found
GUILTY of violating The Lawyer's Oath and The Code of Professional Responsibility and he is hereby
ordered SUSPENDED from the practice of law for two (2) years, with a STERN WARNING that a repetition
of the same or a similar offense will warrant the imposition of a more severe penalty.

Let copies of this decision be furnished the: (a) Office of the Court Administrator for dissemination to all
courts throughout the country for their information and guidance; (b) the Integrated Bar of the
Philippines; and (c) the Office of the Bar Confidant. Let a copy of this decision be attached to the
personal records of the respondent.

SO ORDERED.
FIRST DIVISION

A.C. No. 11821 (formerly CBD Case No. 15-4477), April 02, 2018

DARIO TANGCAY, Complainant, v. HONESTO ANCHETA CABARROGUIS, Respondent.

RESOLUTION

DEL CASTILLO, J.:

This resolves the Affidavit-Complaint1 filed by complainant Dario Tangcay (Tangcay) for impropriety
against respondent Atty. Honesto A. Cabarroguis (Atty. Cabarroguis) before the Integrated Bar of the
Philippines-Commission on Bar Discipline (IBP-CBD).

Factual Antecedents

Tangcay averred in his complaint that: (1) he inherited a parcel of land from his father and the same was
registered in his name under Transfer Certificate of Title (TCT) No. T-288807 (subject property); (2) one
Emilia S. Solicar filed a Petition for Probate of a purported Last and Will Testament of his late father
docketed as Special Proceedings No. 4833-98 (probate case); (3) he engaged the legal services of Atty.
Cabarroguis to defend and represent him in the probate case; (4) while handling the case, Atty.
Cabarroguis learned, that the subject property was mortgaged2 with the First Davao Lending
Corporation (lending corporation) for P100,000.00; (5) Atty. Cabarroguis then offered him a loan of
P200,000,00 with an interest lower than, what the lending corporation imposed; (6) he accepted the
same and signed the real estate mortgage3 unaware of the illegality and impropriety of a lawyer lending
money to a client; and (7) when he defaulted in payment, Atty. Cabarroguis instituted a Judicial
Foreclosure of the real estate mortgage.

In compliance with the Order4 of IBP-CBD, Atty. Cabarroguis filed, his Answer5 dated March 11, 2015.
Atty. Cabarroguis essentially claimed that, despite his generosity and liberality in the collection of his
professional legal fees, he was still not fully paid for the cases he won for Tangcay.

IBP Report and Recommendation

In his Report and Recommendation6 dated May 19, 2015, IBP Commissioner Arsenio P. Adriano
(Commissioner Adriano) found Atty. Cabarroguis administratively liable under Canon 16, particularly
Rule 16.04, of the Code of Professional Responsibility and recommended that Atty. Cabarroguis be
suspended from the practice of law for three months.

In its Resolution No. XXI-2015-4297 dated June 6, 2015, the IBP-Board of Governors –

RESOLVED to ADOPT and APPROVE, as it is hereby unanimously ADOPTED and APPROVED, the Report
and Recommendation of the Investigating Commissioner in the above-entitled case, herein made part of
this Resolution as Annex "A", considering [Atty. Cabarroguis'] violation of Canon 16, Rule 16.04 of the
Code of Professional Responsibility. Thus, respondent Atty. Honesto Ancheta Cabarroguis is hereby
SUSPENDED from the practice of law for three (3) months, (Emphasis in the original)
Our Ruling

The Court adopts the resolution of the IBP Board of Governors.

Quite clearly, Atty. Cabarroguis violated the prohibition against lawyers lending money to their clients.

Pertinent to the case at bar is Canon 16 of the Code of Professional Responsibility (CPR) which states:

CANON 16 — A lawyer shall hold in trust all moneys and properties of his client that may come into his
possession.

And Rule 16.04 thereof which mandates that:

A lawyer shall not borrow money from his client unless the client's interests are fully protected by the
nature of the case or by independent advice. Neither shall a lawyer lead money to a client except, when
in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the
client. (Emphasis ours)

There is hardly any doubt or dispute that Atty. Cabarroguis did lend money to his client, Tangcay, this
fact being evidenced by a real estate mortgage which the latter signed and executed in favor of the
former.

In fact, Commissioner Adriano noted that "[r]espondent did not deny the existence of the mortgage in
his favor. His answer did not directly touch on the propriety of his act of extending the loan to Tangcay,
a client."8

In Linsangan v. Atty. Tolentino9 this Court explained why the lending of money by a lawyer to his client
is frowned upon, viz.:

The rule is that a lawyer shall not lend money to his client. The only exception is, when in the interest of
justice, he has to advance necessary expenses (such as filing fees, stenographer's fees for transcript of
stenographic notes, cash bond or premium for surety bond, etc.) for a matter that he is handling for the
client.

The rule is intended to safeguard the lawyer's independence of mind so that the free exercise of his
judgment may not be adversely affected. It seeks to ensure his undivided attention to the case he is
handling as well as his entire devotion and fidelity to the client's cause. If the lawyer lends money to the
client in connection with the client's case, the lawyer in effect acquires an interest in the subject matter
of the case or an additional stake in its outcome. Either of these circumstances may lead the lawyer to
consider his own recovery rather than that of his client, or to accept a settlement which may take care
of his interest in the verdict to the prejudice of the client in violation of his duty of undivided fidelity to
the client's cause. (Citations omitted)
The law profession is distinguished from any other calling by the fiduciary duty of a lawyer to his or her
client. It is almost trite to say that lawyers are strictly required to maintain the highest degree of public
confidence in the fidelity, honesty and integrity of their profession.10 "Lawyers who obtain an interest
in the subject-matter of litigation create a conflict-of-interest situation with their clients and thereby
directly violate Hie fiduciary duties they owe their clients."11

In Anaya v. Alvarez, Jr.12 this Court once again reminded lawyers that the legal profession is not a mere
money – making occupation but a noble and ennobling calling that is heavily encumbered and hedged
about by such salutary and honored strictures as integrity, morality, honesty, fair dealing and,
trustworthiness, to wit;

The practice of law is a privilege granted only to those who possess the strict intellectual and moral
qualification required of a lawyer. As vanguards of our legal system, they are expected to maintain not
only legal proficiency but also a high standard of morality, honesty, integrity, and fair dealing. Their
conduct must always reflect the values and norms of the legal profession as embodied in the CPR.13

WHEREFORE, respondent. Atty, Honesto A. Cabarroguis is found guilty of violating Rule 16.04, Canon 16
of the Code of Professional Responsibility. Accordingly, he is hereby SUSPENDED from the practice of
law for a period of three (3) months effective upon receipt of this Resolution, with a stern warning that a
commission of the same or similar acts or offenses will be dealt with more severely. Atty. Cabarroguis is
DIRECTED to inform the Court of the date of his receipt of this Resolution within ten (10) days from
receipt thereof.

Let a copy of this Resolution be furnished the Office of the Bar Confidant, the Integrated Bar of the
Philippines, and the Office of the Court Administrator for circulation to all the courts in the country for
their information and guidance.

SO ORDERED.
SECOND DIVISION

A.C. No. 11829, February 26, 2018

MARIA ROMERO, Complainant, v. ATTY. GERONIMO R. EVANGELISTA, JR., Respondent.

RESOLUTION

REYES, JR., J.:

For the Court's resolution is a Complaint1 for disbarment filed by Maria Romero (Maria) with the
Integrated Bar of the Philippines (IBP) against Atty. Geronimo R. Evangelista, Jr. (Atty. Evangelista), for
his alleged violation of several provisions2 of the Code of Professional Responsibility (CPR) and Canon 63
of the Canons of Professional Ethics.

The Facts

In her Complaint, Maria alleged that in several cases, Atty. Evangelista represented her and her aunt
Adela A. Romero (Adela), in their individual capacities and as Heirs of the Late Adela Aguinaldo Vda. De
Romero. However, Atty. Evangelista subsequently represented the Spouses Joseph and Rosalina Valles
in suits against Adela, enumerated as follows:

1. Civil Case No. 319 (Forcible Entry with Damages) - Adela Romero vs. Spouses Joseph and Rosalina
Valles, Municipal Circuit Trial Court, First Judicial Region, Tuba-Sablan, Benguet4

2. Civil Case No. 13-CV-2940 (Recovery of Possession and Ownership with Damages) - Adela Romero vs.
Spouses Joseph and Rosalina Valles, Regional Trial Court, First Judicial Region, Branch 10, Benguet
Province5

3. Civil Case No. 12-CV-2880 - Adela Romero vs. Spouses Joseph and Rosalina Valles, First Judicial Region,
Branch 10, La Trinidad, Benguet6

In his Answer,7 Atty. Evangelista admitted that he had handled cases involving the properties of the
Romero clan, but not a single case for Maria.8 He explained that: a) there was never a lawyer-client
relationship between him and Maria; b) his professional services were never retained by Maria nor did
he receive any privileged information regarding Maria's cases; and c) Maria never paid him any legal
fee.9

Atty. Evangelista also contended that Adela is not a complainant in the disbarment case against him nor
is there any proof that she authorized Maria to file a complaint on her (Adela's) behalf.10

Report and Recommendation of the IBP

In the Report and Recommendation11 dated February 27, 2015, the IBP-Commission on Bar Discipline
(CBD) found Atty. Evangelista to have represented conflicting interests and recommended that he be
meted the penalty of suspension from the practice of law for one year.
The IBP-CBD noted that Atty. Evangelista, who once lawyered for Adela, had accepted and handled legal
actions against her. In his defense, Atty. Evangelista argued that Adela herself did not file a complaint
against him. But, according to the IBP-CBD, Adela's participation in the filing of the action is not
necessary since Atty. Evangelista's culpability had been established by documentary evidence on
record.12

In its Resolution13 dated June 6, 2015, the IBP-Board of Governors adopted and approved in toto the
Report and Recommendation of the IBP-CBD. Atty. Evangelista filed a motion for reconsideration,14
praying for the mitigation of his penalty. The motion was denied in IBP Resolution No. XXII-2017-79415
dated January 27, 2017.

Issue

Whether Atty. Evangelista is guilty of representing conflicting interests

The Court's Ruling

After a judicious review of the records, the Court concurs with the IBP's findings, except for the
recommended penalty.

"The relationship between a lawyer and his client should ideally be imbued with the highest level of
trust and confidence. Necessity and public interest require that this be so. Part of the lawyer's duty to
his client is to avoid representing conflicting interests."16 In Hornilla vs. Salunat,17 the Court explained
the concept of conflict of interest, viz:

There is conflict of interest when a lawyer represents inconsistent interests of two or more opposing
parties. The test is "whether or not in behalf of one client, it is the lawyer's duty to fight for an issue or
claim, but it is his duty to oppose it for the other client. In brief, if he argues for one client, this argument
will be opposed by him when he argues for the other client." This rule covers not only cases in which
confidential communications have been confided, but also those in which no confidence has been
bestowed or will be used. Also, there is conflict of interests if the acceptance of the new retainer will
require the attorney to perform an act which will injuriously affect his first client in any matter in which
he represents him and also whether he will be called upon in his new relation to use against his first
client any knowledge acquired through their connection. Another test of the inconsistency of interests is
whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of
undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or double dealing in the
performance thereof.18

The rule against conflict of interest also "prohibits a lawyer from representing new clients whose
interests oppose those of a former client in any manner, whether or not they are parties in the same
action or on totally unrelated cases,"19 since the representation of opposing clients, even in unrelated
cases, "is tantamount to representing conflicting interests or, at the very least, invites suspicion of
double-dealing which the Court cannot allow."20 The only exception is provided under Canon 15, Rule
15.03 of the CPR - if there is a written consent from all the parties after full disclosure.21 "Such
prohibition is founded on principles of public policy and good taste as the nature of the lawyer-client
relations is one of trust and confidence of the highest degree."22

With Atty. Evangelista's admission that he retained clients who have cases against Adela without all the
parties' written consent, it is clear that he has violated Canon 15, Rule 15.03 of the CPR. Adela's non-
participation in the filing of the instant complaint is immaterial, since it is stated under Section 1, Rule
139-B of the Rules of Court, as amended by Bar Matter No. 1645 that, "[proceedings for the disbarment,
suspension or discipline of attorneys may be taken by the Supreme Court motu proprio, or upon the
filing of a verified complaint of any person before the Supreme Court or the Integrated Bar of the
Philippines (IBP)."

Considering that this is Atty. Evangelista's first offense in his more than 30 years of practice,23 the Court
finds a six-month suspension from the practice of law to be an adequate and appropriate sanction
against him. In Atty. Nuique vs. Atty. Sedillo,24 the Court ordered the suspension of Atty. Eduardo
Sedillo from the practice of law for six (6) months, upon a finding that he represented opposing clients in
unrelated cases. In Tulio vs. Atty. Buhangin,25 the Court similarly imposed the penalty of suspension for
a period of six (6) months against Atty. Gregory Buhangin, who, aside from failing to comply with the
orders of the IBP, also filed a complaint against his former client in representation of such client's
siblings, involving legal matters which the former entrusted to him.

WHEREFORE, in view of the foregoing, the Court finds Atty. Geronimo R, Evangelista, Jr. GUILTY of
representing conflicting interests in violation of Rule 15.03, Canon 15 of the Code of Professional
Responsibility and is SUSPENDED from the practice of law for a period of six (6) months, effective upon
receipt of this Resolution, with a STERN WARNING that a commission of the same or similar offense in
the future will result in the imposition of a more severe penalty.

Let copies of this Resolution be entered in the personal record of Atty. Geronimo R. Evangelista, Jr. as a
member of the Philippine Bar and furnished to the Office of the Bar Confidant, the Integrated Bar of the
Philippines and the Office of the Court Administrator for circulation to all courts in the country.

SO ORDERED.