1 Republic of the Philippines Supreme Court Manila

SECOND DIVISION

RIZALINA L. GEMINA, A.C. No. 6689 Complainant, Present: CARPIO, J., Chairperson, BRION, PERALTA,* PEREZ, and MENDOZA, JJ. Promulgated:

- versus -

ATTY. ISIDRO S. MADAMBA, August 24, 2011 Respondent. x----------------------------------------------------------------------------------------x

DECISION BRION, J.:

We review Resolution No. XVIII-2008-101 dated March 6, 2008 of the Board of Governors of the Integrated Bar of the Philippines (IBP), dismissing the complaint filed by Rizalina L. Gemina (complainant). The complaint charged Atty. Isidro S. Madamba (respondent) with deceit, malpractice and gross negligence, and prayed for his suspension/disbarment.1[1]

The complainant alleged that she is an heir of the registered owner of several parcels of land located in Laoag City.2[2] These parcels of land were unlawfully sold by Francisco Eugenio in connivance with the respondent. The documents pertaining to the transactions over these lands were
*

Designated additional Member vice Associate Justice Maria Lourdes P.A. Sereno per Special Order No. 1067 dated August 23, 2011. 1[1] Rollo, p. 123. 2[2] Id. at 99-102.

2 notarized by the respondent either without the presence of the affiants or with their forged signatures. The documents the complainant referred to were:

1. 2. 3. 4. 5.

Waiver of Rights & Interest Affidavit of Buyer/Transferee Deed of Adjudication3[3] & Sale Affidavit of Non-Tenancy Deed of Absolute Sale

The complainant alleged that the Waiver of Rights and Interests was submitted by Eugenio to the Department of Agrarian Reform. This document shows that it was entered in the respondents Notarial Register as Doc. No. 2283, Page No. 252, Book No. VIII, Series of 2003. However, when she went to the Office of the Clerk of Court (OCC), Regional Trial Court, Isabela, to request for a copy, she found out that Doc. No. 2283, Page No. 252, Book No. VIII, Series of 2003 was an Affidavit of Buyer/Transferee allegedly executed by the Spouses Efren Alonzo and Imelda Alonzo on September 29, 2003. In the column REMARKS of Document No. 2283, the word cancelled was written, but no reason was given for the cancellation, nor was a copy of the alleged cancelled document in the records. The same Affidavit of Buyer/Transferee was also entered in the respondents Notarial Register as Doc. No. 2285, Page No. 253, Book No. VIII, Series of 2003. The complainant submitted a Certification dated May 3, 2004 issued by Clerk of Court Artemio H. Quidilla, Jr., that a certified true copy of Doc. No. 2283, Page No. 252, Book No. VIII, Series of 2003 cannot be issued because the respondent did not submit notarial reports for the years 2003 and 2004, although he was commissioned as a Notary Public for these years.4[4]

The complainant also asked for a certified true copy of a Deed of Adjudication and Sale allegedly executed by Eugenio and the other heirs, and notarized by the respondent on July 22, 2003. The instrument shows that this document was entered in the respondents Notarial Register as Doc. No. 2263, Page No. 248, Book No. VIII, Series of 2003, but no copy was submitted to the OCC. In the column REMARKS, the words without copy appeared, without stating the reason for the absence of a copy. Clerk of Court Quidilla issued a Certification dated June 21, 2004 that indeed, no copy was submitted.5[5]

3[3] 4[4]

Referred to as Adjunction in the complaint. Rollo, p. 11. 5[5] Id. at 12.

3 In another unlawful sale of a parcel of land, an Affidavit of Non-Tenancy was notarized by the respondent. It was entered in his Notarial Register as Doc. No. 2448, Page No. 276, Book No. VIII, Series of 2004. The affidavit referred to a Deed of Sale involving a 2,500-square meter property. The Deed of Sale was notarized by the respondent on November 14, 2002 and entered in his Notarial Register as Doc. No. 2212, Page No. 239, Book No. VIII, Series of 2002. To verify the authenticity of the Deed of Sale, the complainant tried to secure a copy but she discovered that no such Deed of Sale existed. In fact, a different document corresponds to Doc. No. 2212, Page No. 239, Book No. VIII, Series of 2002. It refers to an Affidavit of Discrepancy, instead of a Deed of Sale. On the column REMARKS, the word cancelled appeared without indicating the reason for the cancellation. This was confirmed by Clerk of Court Quidilla in his 1st Indorsement dated July 16, 2004, stating that Doc. No. 2212, Series of 2002 pertains to an Affidavit of Discrepancy executed by Joseph Lim Clemente on November 15, 2002.6[6] In his Comments and Compliance dated August 29, 2006,7[7] the respondent admitted the complainants allegations on the notarization of the subject documents, but denied any participation in the sale and transfer of the lands covered by the documents. He claimed that it was his secretary who prepared and drafted the documents. He claimed that his only participation was to affix his signature on the documents; he was already 82 years old and insulin dependent, so he had no more time to prepare documents and enter documents in his notarial register. He begged for leniency and consideration from the Court, and asked for forgiveness for his inadvertent acts. He apologized and committed himself not to repeat these misdeeds.

In a resolution dated November 29, 2006, we referred the complaint to the IBP for investigation, report and recommendation.8[8]

In the position paper she submitted to the IBP, the complainant reiterated her charges against the respondent, further stating that as a member of the Philippine Bar, the respondent allowed himself to be used as a Notary Public to illegally enable third parties to claim rights over properties to which the complainant has hereditary rights. By notarizing documents through false representations, without the signatories personally present before him as required under the Notarial Law, the respondent should be held guilty of dishonesty and conduct unbecoming of a member of the Philippine Bar.9[9]
6[6]

Id. at 14. Id. at 30-31. 8[8] Id. at 33. 9[9] Id. at 92-98.
7[7]

The respondent likewise reiterated in his position paper10[10] his explanations contained in his comment submitted to this Court -

Respondent does not deny having affix[ed] his signatures in the subject documents but he was never a participant in the alleged unlawful sale. His participation is limited to the affixing [of] his signature in the subject documents. The alleged manipulation was committed by her [sic] clerk[-]secretary who enjoyed his trust and confidence having been in said position for almost two decades. Said clerk-secretary is responsible for the preparation and entry of the documents in the Notarial Book. As such, he has all the chance to do [the] things he wanted to do, which of course respondent has no least suspicion to suspect him to do illegal and unlawful acts to his Notarial Register. When respondent was still strong, he personally prepare [sic] document and personally do [sic] the entry of his Notarial Documents in his Notarial Book, but in the early [year] of 1999, his sickness was aggravated and he became insulin dependent. This necessarily weakens his body and eyesight. And so he has no choice except to trust said secretary-clerk for the preparation and entry of notarial documents in his notarial register.

On February 12, 2008, Commissioner Rebecca Villanueva-Maala submitted to the IBP Board of Governors her Report and Recommendation,11[11] recommending the dismissal of the complaint for lack of merit, finding that:

In her Complaint, complainant alleged that she is an heir of a registered owner of some parcels of land in Laoag City. However, no documentary evidence was presented to support the same. She insisted that respondent notarized documents without the appearance before him of the persons who executed the same, but no clear and sufficient evidence was also presented. Rule 130, Section 14 of the Rules of Court provides that Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. In the herein case, although complainant made it appear that she has evidence to prove that there was anomaly in the notarization of the subject documents, she failed to present the same. An attorney enjoys the legal presumption that he is innocent of the charges preferred against him until the contrary is proved and that as an officer of the court he has performed his duties in accordance with his oath (Acosta v. Serrano, 75 SCRA 254; Atienza v. Evangelista, 80 SCRA 338). The burden of proof rests upon the complainant
10[10] 11[11]

Id. at 119-120. Id. at 124-127.

5 to overcome the presumption and establish his charges by a clear preponderance of evidence (Baldoman v. Luspo, 64 SCRA 74; In re De Guzman, 55 SCRA 139). The IBP Board of Governors, in its Resolution No. XVIII-2008-101 dated March 6, 2008 adopted and approved Commissioner Maalas Report and Recommendation, and dismissed the complaint against the respondent for lack of merit.12[12]

We totally disagree with the findings of Commissioner Maala for the following reasons: First, the IBP cannot inquire into whether the complainant is an heir of the registered owner of the land. It is not within its authority to determine whether the complainant has a legal right to the properties involved in the transactions and to require her to submit proof to that effect. Its function is limited to disciplining lawyers, and it cannot determine issues of law and facts regarding the parties legal rights to a dispute. Second, from the respondents own admissions, it cannot be doubted that he is guilty of the charges against him. His admissions show that he had notarized documents without reading them and without ascertaining what the documents purported to be. He had completely entrusted to his secretary the keeping and the maintenance of his Notarial Register. This eventually resulted in inaccuracies in the entry of the notarial acts in his Notarial Register.

The excerpts from the transcript of stenographic notes taken during the hearing held on November 12, 2007, presided by IBP Commissioner Oliver L. Pantaleon,13[13] show:

MR. GEMINA: Your Honor, itong Affidavit of Discrepancy is not an Affidavit of Discrepancy. Minamanipulate niya yong ano This is a Deed of Sale. Pinalitan niya yong ano, eh, document number. This is a Deed of Sale pertaining to the property Noong sinita na namin siya pinalitan naniya, the same number pero iba na ang pangalan. Affidavit of Discrepancy na ang pinalabas. The same document number, page 3, number 8. And we were able to get a copy of these documents. COMM. PANTALEON:

You can submit that also.

ATTY. MADAMBA:
12[12] 13[13]

Supra note 1. Rollo, pp. 82-84.

That is really true, Your Honor, because I have said I am not the one anymore preparing my reports on notarial. I relied on my secretary. So everything there will present to me and I sign it believing that all are clear. COMM. PANTALEON: So you admit that particular allegation. ATTY. MADAMBA: Yes, that I have notarized that two documents.

MR. GEMINA: Not only that, Your Honor, there are several documents we can prove. ATTY. MADAMBA: Well, I have already submitted.

The Court is likewise convinced that the respondent notarized the Waiver of Rights and Interests executed by one Juanito Peniera without asking for proof of identity, relying merely on assurances and his belief that the person before him was a wise man.14[14] It was shown during the hearing on November 12, 2007 that the document was a forgery. The transcript of stenographic notes of what transpired during the hearing on November 12, 200715[15] shows:

COMM. PANTALEON: Right now, what is your evidence to show that this person did not personally appear before the respondent?

MR. GEMINA: Can I talk, your Honor?

COMM. PANTALEON: What is your name?

14[14] 15[15]

Id. at 58. Id. at 54-55.

MR. GEMINA: I am Candido Gemina, Jr., husband of the complainant. The signature of Juanito Peniera was a forgery. In fact, we also filed a case against Francisco Eugenio and he was sentenced to jail on that matter.

COMM. PANTALEON: On this document?

MR. GEMINA: Yes, on that document.

COMM. PANTALEON: Why do you say that the signature of Juanito Peniera in this case was forged? MR. GEMINA: He testified in court in Laoag City that he did not sign.

COMM. PANTALEON: Juanito Peniera testified in court?

MR. GEMINA: Yes, sir. The IBP resolution, based wholly on Commissioner Maalas Report and Recommendation, totally missed and disregarded the submitted evidence and the respondents testimony during the hearing of the complaint. The IBP apparently had treated the respondent with exceptional leniency. In our view, the respondents age and sickness cannot be cited as reasons to disregard the serious lapses he committed in the performance of his duties as a lawyer and as a notary public. The inaccuracies in his Notarial Register entries and his failure to enter the documents that he admittedly notarized constitute

8 dereliction of duty as a notary public. He cannot escape liability by putting the blame on his secretary. The lawyer himself, not merely his secretary, should be held accountable for these misdeeds.16[16]

A notary public is empowered to perform a variety of notarial acts, most common of which are the acknowledgement and affirmation of documents or instruments. In the performance of these notarial acts, the notary public must be mindful of the significance of the notarial seal affixed on documents. The notarial seal converts a document from a private to a public instrument, after which it may be presented as evidence without need for proof of its genuineness and due execution. Thus, notarization should not be treated as an empty, meaningless or routinary act. A notary public exercises duties calling for carefulness and faithfulness. Notaries must inform themselves of the facts they certify to; most importantly, they should not take part or allow themselves to be part of illegal transactions.17[17]

Canon 1 of the Code of Professional Responsibility requires every lawyer to uphold the Constitution, obey the laws of the land, and promote respect for the law and legal processes. The Notarial Law and the 2004 Rules on Notarial Practice, moreover, require a duly commissioned notary public to make the proper entries in his Notarial Register and to refrain from committing any dereliction or any act which may serve as cause for the revocation of his commission or the imposition of administrative sanctions.18[18] Under the 2004 Rules on Notarial Practice, the respondents failure to make the proper entry or entries in his Notarial Register of his notarial acts, his failure to require the presence of a principal at the time of the notarial acts, and his failure to identify a principal on the basis of personal knowledge by competent evidence are grounds for the revocation of a lawyers commission as a notary public. 19[19]

WHEREFORE, the Court finds respondent Atty. Isidro S. Madamba GUILTY of violating the Notarial Law, the 2004 Rules on Notarial Practice and the Code of Professional Responsibility, and hereby orders the REVOCATION of his notarial commission, if still existing. He is further SUSPENDED indefinitely from reappointment as a Notary Public. Considering the seriousness of his violations, he deserves disbarment from the practice of law but taking into account his old age and sickness, the Court, for humanitarian reasons, hereby orders his SUSPENSION from the practice of law for a period of one (1) year.
16[16]

Aquino v. Pascua, A.C. No. 5095, November 28, 2007, 539 SCRA 1; and Agagon v. Bustamante, A.C. No. 5510, December 20, 2007, 541 SCRA 286. 17[17] Agagon v. Bustamante, supra. 18[18] Ibid. 19[19] Section 1, Rule 41, 2004 Rules on Notarial Practice.

Let copies of this Decision be furnished the Integrated Bar of the Philippines, and all courts in the country for their information and guidance. Let also a copy of this decision be appended to Atty. Isidro S. Madambas personal record as a member of the Bar.

SO ORDERED.

ARTURO D. BRION Associate Justice

WE CONCUR:

ANTONIO T. CARPIO Associate Justice Chairperson

DIOSDADO M. PERALTA Justice

Associate

JOSE PORTUGAL PEREZ Associate Justice

JOSE CATRAL MENDOZA Associate Justice

10 EN BANC

Father RANHILIO C. AQUINO, LINA M. GARAN, ESTRELLA C. LOZADA, POLICARPIO L. MABBORANG, DEXTER R. MUNAR, MONICO U. TENEDRO, ANDY R. QUEBRAL, NESTOR T. RIVERA, EDUARDO C. RICAMORA, ARTHUR G. IBAEZ, AURELIO C. CALDEZ and DENU A. AGATEP, Complainants,

A.C. No. 5095

Present:

PUNO, C.J. * QUISUMBING,

**

YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA,

- versus -

CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, and REYES, JJ.

Atty. EDWIN PASCUA, Respondent. Promulgated:

November 28, 2007

11 x -------------------------------------------------------------------------------------------x

DECISION SANDOVAL-GUTIERREZ, J.:

For our resolution is the letter-complaint dated August 3, 1999 of Father Ranhilio C. Aquino, then Academic Head of the Philippine Judicial Academy, joined by Lina M. Garan and the other abovenamed complainants, against Atty. Edwin Pascua, a Notary Public in Cagayan.

In his letter-complaint, Father Aquino alleged that Atty. Pascua falsified two documents committed as follows: (1) He made it appear that he had notarized the Affidavit-Complaint of one Joseph B. Acorda entering the same as Doc. No. 1213, Page No. 243, Book III, Series of 1998, dated December 10, 1998. (2) He also made it appear that he had notarized the Affidavit-Complaint of one Remigio B. Domingo entering the same as Doc. No. 1214, Page 243, Book III, Series of 1998, dated December 10, 1998.

Father Aquino further alleged that on June 23 and July 26, 1999, Atty. Angel Beltran, Clerk of Court, Regional Trial Court, Tuguegarao, certified that none of the above entries appear in the Notarial Register of Atty. Pascua; that the last entry therein was Document No. 1200 executed on December 28, 1998; and that, therefore, he could not have notarized Documents Nos. 1213 and 1214 on December 10, 1998.

In his comment on the letter-complaint dated September 4, 1999, Atty. Pascua admitted having notarized the two documents on December 10, 1998, but they were not entered in his Notarial Register due to the oversight of his legal secretary, Lyn Elsie C.Patli, whose affidavit was attached to his comment.

12 The affidavit-complaints referred to in the notarized documents were filed by Atty. Pascua with the Civil Service Commission. Impleaded as respondents therein were Lina M. Garan and the other above-named complainants. They filed with this Court a Motion to Join the Complaint and Reply to Respondents Comment. They maintain that Atty. Pascuas omission was not due to inadvertence but a clear case of falsification.[1] On November 16, 1999, we granted their motion.[2]

Thereafter, we referred the case to the Office of the Bar Confidant for investigation, report and recommendation.

On April 21, 2003, the Office of the Bar Confidant issued its Report and Recommendation partly reproduced as follows:

A notarial document is by law entitled to full faith and credit upon its face. For this reason, notaries public must observe the utmost care to comply with the formalities and the basic requirement in the performance of their duties (Realino v. Villamor, 87 SCRA 318). Under the notarial law, the notary public shall enter in such register, in chronological order, the nature of each instrument executed, sworn to, or acknowledged before him, the person executing, swearing to, or acknowledging the instrument, xxx xxx. The notary shall give to each instrument executed, sworn to, or acknowledged before him a number corresponding to the one in his register, and shall also state on the instrument the page or pages of his register on which the same is recorded. No blank line shall be left between entries (Sec. 246, Article V, Title IV, Chapter II of the Revised Administrative Code). Failure of the notary to make the proper entry or entries in his notarial register touching his notarial acts in the manner required by law is a ground for revocation of his commission (Sec. 249, Article VI). In the instant case, there is no question that the subject documents allegedly notarized by Atty. Pascua were not recorded in his notarialregister. Atty. Pascua claims that the omission was not intentional but due to oversight of his staff. Whichever is the case, Atty. Pascua cannot escape liability. His failure to enter into his notarial register the documents that he admittedly notarized is a dereliction of duty on his part as a notary public and he is bound by the acts of his staff. The claim of Atty. Pascua that it was simple inadvertence is far from true. The photocopy of his notarial register shows that the last entry which he notarized on December 28, 1998 is Document No. 1200 on Page 240. On the other hand, the two

13 affidavit-complaints allegedly notarized on December 10, 1998 are Document Nos. 1213 and 1214, respectively, under Page No. 243, Book III. Thus, Fr. Ranhilio and the other complainants are, therefore, correct in maintaining that Atty. Pascua falsely assigned fictitious numbers to the questioned affidavit-complaints, a clear dishonesty on his part not only as a Notary Public, but also as a member of the Bar. This is not to mention that the only supporting evidence of the claim of inadvertence by Atty. Pascua is the affidavit of his own secretary which is hardly credible since the latter cannot be considered a disinterested witness or party. Noteworthy also is the fact that the questioned affidavit of Acorda (Doc. No. 1213) was submitted only when Domingos affidavit (Doc. No. 1214) was withdrawn in the administrative case filed by Atty. Pascua against Lina Garan, et al. with the CSC. This circumstance lends credence to the submission of herein complainants that Atty. Pascua ante-dated another affidavit-complaint making it appear as notarized on December 10, 1998 and entered as Document No. 1213. It may not be sheer coincidence then that both documents are dated December 10, 1998 and numbered as 1213 and 1214. A member of the legal fraternity should refrain from doing any act which might lessen in any degree the confidence and trust reposed by the public in the fidelity, honesty and integrity of the legal profession (Maligsa v. Cabanting, 272 SCRA 409). As a lawyer commissioned to be a notary public, Atty. Pascua is mandated to subscribe to the sacred duties appertaining to his office, such duties being dictated by public policy and impressed with public interest. A member of the Bar may be disciplined or disbarred for any misconduct in his professional or private capacity. The Court has invariably imposed a penalty for notaries public who were found guilty of dishonesty or misconduct in the performance of their duties. In Villarin v. Sabate, Jr. (325 SCRA 123), respondent lawyer was suspended from his Commission as Notary Public for a period of one year for notarizing a document without affiants appearing before him, and for notarizing the same instrument of which he was one of the signatories. The Court held that respondent lawyer failed to exercise due diligence in upholding his duties as a notary public. In Arrieta v. Llosa (282 SCRA 248), respondent lawyer who certified under oath a Deed of Absolute Sale knowing that some of the vendors were dead was suspended from the practice of law for a period of six (6) months, with a warning that another infraction would be dealt with more severely. In said case, the Court did not impose the supreme penalty of disbarment, it being the respondents first offense. In Maligsa v. Cabanting (272 SCRA 409), respondent lawyer was disbarred from the practice of law, after being found guilty of notarizing a fictitious or spurious

14 document. The Court considered the seriousness of the offense and his previous misconduct for which he was suspended for six months from the practice of law. It appearing that this is the first offense of Atty. Pascua, a suspension from the practice of law for a period of six (6) months may be considered enough penalty for him as a lawyer. Considering that his offense is also a ground for revocation of notarial commission, the same should also be imposed upon him. PREMISES CONSIDERED, it is most respectfully recommended that the notarial commission of Atty. EDWIN V. PASCUA, if still existing, be REVOKED and that he be SUSPENDED from the practice of law for a period of six (6) months.[3]

After a close review of the records of this case, we resolve to adopt the findings of facts and conclusion of law by the Office of the Bar Confidant. We find Atty. Pascua guilty of misconduct in the performance of his duties for failing to register in hisNotarial Register the affidavit-complaints of Joseph B. Acorda and Remigio B. Domingo.

Misconduct generally means wrongful, improper or unlawful conduct motivated by a premeditated, obstinate or intentional purpose.[4] The term, however, does not necessarily imply corruption or criminal intent.[5]

The penalty to be imposed for such act of misconduct committed by a lawyer is addressed to the sound discretion of the Court. In Arrieta v. Llosa,[6] wherein Atty. Joel A. Llosa notarized a Deed of Absolute Sale knowing that some of the vendors were already dead, this Court held that such wrongful act constitutes misconduct and thus imposed upon him the penalty of suspension from the practice of law for six months, this being his first administrative offense. Also, in Vda. de Rosales v. Ramos,[7] we revoked the notarial commission of Atty. Mario G. Ramos and suspended him from the practice of law for six monthsfor violating the Notarial Law in not registering in his notarial book the Deed of Absolute Sale he notarized. In Mondejar v.Rubia,[8] however, a lesser penalty of one month suspension from the practice of law was imposed on Atty. Vivian G. Rubia for making a false declaration in the document she notarized.

In the present case, considering that this is Atty. Pascuas first offense, we believe that the imposition of a three-month suspension from the practice of law upon him is in order. Likewise, since his offense is a ground for revocation of notarialcommission, the same should also be imposed upon him.

15

WHEREFORE, Atty. Edwin Pascua is declared GUILTY of misconduct and is SUSPENDED from the practice of law for three (3) months with a STERN WARNING that a repetition of the same or similar act will be dealt with more severely. Hisnotarial commission, if still existing, is ordered REVOKED.

SO ORDERED. ANGELINA SANDOVAL-GUTIERREZ Associate Justice

WE CONCUR:

(On official leave) REYNATO S. PUNO Chief Justice

(On official leave) LEONARDO A. QUISUMBING Associate Justice CONSUELO YNARES-SANTIAGO Acting Chief Justice

ANTONIO T. CARPIO Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

16

RENATO C. CORONA Associate Justice

CONCHITA CARPIO MORALES Associate Justice

ADOLFO S. AZCUNA Associate Justice

DANTE O. TINGA Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

RUBEN T. REYES Associate Justice

On official leave. Designated Acting Chief Justice per Special Order No. 478 dated November 23, 2007. Rollo, pp. 18-20. Id., p. 22. Records, pp. 34-38. Salazar v. Limeta, A.M. No. P-04-1908, August 16, 2005, 467 SCRA 27, citing Loyao, Jr. v. Caube, 402 SCRA 33 (April 30, 2003); Words and Phrases, Vol. 27, p. 466; Sewell v. Sharp, La App., 102 So 2d 259, 261. Salazar v. Limeta, id., citing State Ex Rel Asbaugh v. Bahr, 40 N.E. 2d 677, 680, 68 Ohio App. 308. A.C. No. 4369, November 28, 1997, 282 SCRA 248.

** [1] [2] [3] [4]

[5]

[6]

17
[7]

Adm. Case No. 5645, July 2, 2002, 383 SCRA 498.

[8]

A.C. Nos. 5907 and 5942, July 21, 2006, 496 SCRA 1. At any rate, such false statement could not be classified as serious misconduct to justify the taking of any disciplinary action against respondent for as ruled by the Supreme Court in the case of In re Impeachment of Horrilleno, 43 Phil. 212, 214: 'The grounds for removal of a judge of first instance under Philippine law are two: (a) Serious misconduct and (b) inefficiency. The latter ground is not involved in these proceedings. As to the first, the law provides that "sufficient cause" must exist in the judgment of the Supreme Court involving "serious misconduct". The adjective is "serious"; that is, important, weighty, momentous, and not trifling. The noun is "misconduct"; that is, a transgression, more particularly, unlawful behavior or gross negligence by the public officer. The word "misconduct" implies a wrongful intention and not a mere error or judgment. For serious misconduct to exist, there must be reliable evidence showing that the judicial acts complained of were corrupt or inspired by an intention to violate the law, or were in persistent disregard of well-known legal rules.' (Emphasis supplied.) In re Horrilleno[6] defined gross misconduct in the following wise: The grounds for removal of a judge of first instance under Philippine law are two: (1) Serious misconduct and (2) inefficiency. The latter ground is not involved in these proceedings. As to the first, the law provides that sufficient cause must exist in the judgment of the Supreme Court involving serious misconduct. The adjective is serious; that is, important, weighty, momentous, and not trifling. The noun is misconduct; that is, a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by the public officer. The word misconduct implies a wrongful intention and not a mere error or judgment. For serious misconduct to exist, there must be reliable evidence showing that the judicial acts complained of were corrupt or inspired by an intention to violate the law, or were in persistent disregard of well-known legal rules. (Lawlor vs. People [1874], 74 Ill., 228; Citizens' Insurance Co. vs. Marsh [1861], 41 Pa., 386; Miller vs. Roby [1880], 9 Neb., 471; Smith vs. Cutler [1833], 10 Wend. [N.Y.], 590; U.S. vs. Warner [1848], 28 Fed. Cas. No. 16643; In re Tighe [1904], 89 N.Y. Supra., 719.) (Emphasis supplied.) The above definition was to be reiterated in Ajeno v. Judge Inserto,[7] where the Court wrote: In the case of In re [Horrilleno], 43 Phil. 212, this Court previously ruled that For serious misconduct to exist, there must be reliable evidence showing that the judicial acts complained of were corrupt or inspired by an intention to violate the law, or were in persistent disregard of well-known legal rules. Of similar tenor is the definition provided in Jamsani-Rodriguez v. Ong:[8] x x x The respondent Justices were not liable for gross misconduct defined as the transgression of some established or definite rule of action, more particularly, unlawful behavior or gross negligence, or the corrupt or persistent violation of the law or disregard of well-known legal rules x x x.

18 Republic of the Philippines SUPREME COURT Manila EN BANC A.C. No. 376 April 30, 1963

JOSEFINA ROYONG, complainant, vs. ATTY. ARISTON OBLENA, respondent. BARRERA, J.: In a verified complaint filed with this Court on January 14, 1959, complainant Josefina Royong charged the respondent Ariston J. Oblena, a member of the Philippine Bar, with rape allegedly committed on her person in the manner described therein. Upon requirement of this Court, the respondent filed his answer denying all the allegations in the complaint and praying that he be not disbarred. On February 3, 1959, this Court referred the case to the Solicitor General for investigation, report and recommendation. On July 10, 1961, the Solicitor General submitted his report on the case with the recommendation that the respondent "be permanently removed from his office lawyer and his name be stricken from the roll of attorneys". The pertinent part of the report reads as follows: The complainant testified that after lunch on August 5, 1958, Cecilia Angeles, her foster mother, left her alone in their house and went down to the pig sty to feed the pigs. At about 1:00 p.m., while she" (complainant) was ironing clothes on the second floor of the house the respondent entered and read a newspaper at her back. Suddenly he covered her mouth with one hand and with the other hand dragged her to one of the bedrooms of the house and forced her to lie down on the floor. She did not shout for help because he threatened her and her family with death. He next undressed as she lay on the floor, then had sexual intercourse with her after he removed her panties and gave her hard blows on the thigh with his fist to subdue her resistance. After the sexual intercourse, he warned her not to report him to her foster parents, otherwise, he would kill her and all the members of her family. She resumed ironing clothes after he left until 5:00 o'clock that afternoon when she joined her foster mother on the first floor of the house. As a result of the sexual intercourse she became pregnant and gave birth to a baby on June 2, 1959 (pp. 4-8, 21, 23, 26, 27, t.s.n., hearing of Aug. 5, 1959). She admitted that had she shouted for help she would have been heard by the neighbors that she did not report the outrage to anyone because of the threat made by the respondent; that she still frequented the respondent's house after August 5, 1959, sometimes when he was alone, ran errands for him, cooked his coffee, and received his mail for him. Once, on November 14, 1958, when respondent was sick of influenza, she was left alone with him in his house while her aunt Briccia Angeles left for Manila to buy medicine (pp. 11, 14-18, 24, t.s.n., hearing of August 5, 1959). The respondent on the witness stand denied that he raped the complainant (p. 3, t.s.n., hearing of March 25 1960). He testified that after lunch on August 5, 1958, he went to the Commission Of Civil Service to follow up his appointment as technical assistant in the office of the mayor of Makati, Rizal, and read the record of the administrative case against Buenaventura Perez (pp. 23, 24, 34, t.s.n., hearing of March 25, 1960, Exhs. 1 and 2).

19 The respondent, however, admitted that he had illicit relations with the complainant from January, 1957 to December, 1958, when their clandestine affair was discovered by the complainant's foster parents, but to avoid criminal liability for seduction, according to him, he limited himself to kissing and embracing her and sucking her tongue before she completed her eighteenth birthday. They had their first sexual intercourse on May 11, 1958, after she had reached eighteen, and the second one week later, on May 18. The last intercourse took place before Christmas in December, 1958. In all, they had sexual intercourse about fifty times, mostly in her house and sometimes in his house whenever they had the opportunity. He intended to marry her when she could legally contract marriage without her foster parents' intervention, 'in case occasion will permit ... because we cannot ask permission to marry, for her foster parents will object and even my common-law wife, will object.' After the discovery of their relationship by the complainant's foster parents, he confessed the affair to Briccia, explaining that he wanted to have a child, something she (Briccia) could not give him. (pp. 14-16, 19-25, t.s.n., hearing of March 25, 1960). xxx xxx xxx

FINDINGS AND COMMENT There is no controversy that the respondent had carnal knowledge of the complainant. The complainant claims she surrendered to him under circumstances of violence and intimidation, but the undersigned are convinced that the sexual intercourse was performed not once but repeatedly and with her consent. From her behaviour before and after the alleged rape, she appears to have been more a sweetheart than of the victim of an outrage involving her honor .... But the foregoing observations notwithstanding, the undersigned cannot in conscience recommend respondent's exoneration. The respondent tempted Briccia Angeles to live maritally with him not long after she and her husband parted, and it is not improbable that the spouses never reconciled because of him. His own evidence shows that, tiring of her after more than fifteen years of adulterous relationship with her and on the convenient excuse that she, Briccia Angeles, could not bear a child, he seduced Josefina Andalis, then 17 or 18 years of age, resulting in her pregnancy and the birth of a child, on June 2, 1959. The seduction was accomplished with grave abuse of confidence and by means of promises of marriage which he knew he could not fulfill without grievous injury to the woman who forsook her husband so that he, respondent, could have all of her. He also took advantage of his moral influence over her. From childhood, Josefina Andalis, treated him as an uncle and called him 'tata' (uncle), undoubtedly because he is the paramour of a sister of her mother. Considering her age (she was 17 or 18 years old then), it is not difficult to see why she could not resist him. The evidence further shows that on July 22, 1954, the respondent filed a sworn petition dated May 22, 1954 alleging "that he is a person of good moral character" (Par. 3) and praying that the Supreme Court permit him "to take the bar examinations to be given on the first Saturday of August, 1954, or at any time as the Court may fix.." But he was not then the person of good moral character he represented himself to be. From 1942 to the present, he has continuously lived an adulterous life with Briccia Angeles whose husband is still alive, knowing that his concubine is a married woman and that her marriage still subsists. This fact permanently disqualified him from taking the bar examinations, and had it been known to the Supreme Court in 1954, he would not have been permitted to take the bar examinations that year or thereafter, or to take his oath of office as a lawyer. As he was then permanently disqualified from admission to the Philippine Bar by reason of his adulterous relations with a

20 married woman, it is submitted that the same misconduct should be sufficient ground for his permanent disbarment, unless we recognize a double standard of morality, one for membership to the Philippine Bar and another for disbarment from the office of a lawyer. xxx xxx xxx

RECOMMENDATION Wherefore, the undersigned respectfully recommend that after due hearing, respondent Ariston J. Oblena be permanently removed from his office as a lawyer and his name be stricken from the roll of attorneys. In view of his own findings as a result of his investigation, that even if respondent did not commit the alleged rape nevertheless he was guilty of other misconduct, the Solicitor General formulated another complaint which he appended to his report, charging the respondent of falsely and deliberately alleging in his application for admission to the bar that he is a person of good moral character; of living adulterously with Briccia Angeles at the same time maintaining illicit relations with the complainant Josefina Royong, niece of Briccia, thus rendering him unworthy of public confidence and unfit and unsafe to manage the legal business of others, and praying that this Court render judgment ordering "the permanent removal of the respondent ... from his office as a lawyer and the cancellation of his name from the roll of attorneys." In his answer to this formal complaint, respondent alleged the special defense that "the complaint does not merit action", since the causes of action in the said complaint are different and foreign from the original cause of action for rape and that "the complaint lacks the necessary formalities called for in Sec. 1, Rule 128 of the Rules of Court." Respondent prayed that after due notice and hearing for additional evidence, the complaint be dismissed. On September 13, 1961, this Court designated the Court Investigators to receive the additional evidence. Accordingly the case was set for hearing of which the parties were duly notified. On September 29, 1961, respondent asked leave to submit a memorandum which was granted, and on October 9, 1961 the same was filed, alleging the following: 1) That the charge of rape has not been proven; 2) That no act of seduction was committed by the respondent; 3) That no act of perjury or fraudulent concealment was committed by the respondent when he filed his petition for admission to the bar; and 4) That the respondent is not morally unfit to be a member of the bar. Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts. 1wph1.t At the hearing on November 16, 1961, respondent presented his common-law wife, Briccia Angeles, who testified as follows: ... Respondent is her common-law husband (t.s.n. 23). She first met respondent on December 16, 1941 at Cavinti, Laguna (t.s.n. 23). She and her sister Cecilia Angeles-Royong were evacuated to Cavinti by the Red Cross (t.s.n. 23). She was already married (to Teodoro Arines) at the time (t.s.n. 24). She and Arines are from Iriga, Camarines Sur (t.s.n. 24). Respondent and one Mr. Flores registered them (t.s.n. 24) as evacuees. When Mr. Flores asked her about her status she told him she was 'single' (t.s.n. 25). She and her sister, Cecilia, were then told to stay at respondent's house, respondent courted her (t.s.n. 26). Respondent asked her if she was married and she told him 'we will talk about that later on' (t.s.n. 26). She told respondent she was married

21 (to Arines) when she and respondent were already living together as 'husband and wife', in 1942( t.s.n. 26). Respondent asked her to marry him, when they were living as husband and wife (t.s.n. 27). Her sister Cecilia left Cavinti 2 months after their arrival thereat, but she did not go with her because she and respondent 'had already a good understanding'(sexual relations) [t.s.n. 27]. Later, she left Cavinti and went to her hometown in Iriga, Camarines Sur, because respondent was already reluctant to live with her and he told her it was better for her to go home to Iriga (t.s.n. 25). Arriving at Iriga, she met her legitimate husband (Arines), who told her he had already a wife, named Conching Guevara (t.s.n. 28-29). She then went back to Cavinti (in 1943), with her father, and lived with respondent (t.s.n. 29). Respondent eventually agreed that she live with him (t.s.n. 35); in fact, she is still presently living with respondent (t.s.n. 35) [Report of Court Investigators, March 6, 1962, pp. 5-6]." Thereafter, respondent requested permission to submit an affidavit at a later date, which request was also granted. The affidavit was filed on December 16, 1961, the respondent averring, among others, the following:. ... That he never committed any act or crime of seduction against the complainant, because the latter was born on February 19, 1940, and his first sexual intercourse with her took place on May 11, 1958, when she was already above 18 years of age; that he had been living with his commonlaw wife, Briccia Angeles, for almost 20 years, but from the time he began courting her, he 'had no intention to alienate' her love for her husband, Arines, or to commit the crime of adultery; that he courted Briccia on October 16, 1941, and was shortly thereafter accepted by her; that on February 21, 1942, he found Briccia alone in his house, who told him that her sister, Cecilia, had gone to Pagsanjan with the other evacuees; that from said date (February 21), to the present, he and Briccia had been living together as common-law husband and wife; that 2 or 3 weeks thereafter, he asked Briccia to marry him, but she confessed she was already married, and maybe her husband (Arines) was still living in Iriga; that he could not then drive Briccia away, because she was a stranger in the place, nor could he urge her to join her sister Cecilia, as the latter had left Pagsanjan; that in 1943 she told Briccia to separate from him and to return to Iriga, and urged her never to see him again; that contrary to his expectations, Briccia returned to Cavinti 3 months thereafter; that Briccia strongly insisted to live with him again, telling him that she cannot separate from him anymore, as he was ashamed; that Briccia's father told him that Briccia's husband (Arines) had agreed not to molest them as in fact he (Arines) was already living with another woman; that he had 'no choice but to live with her' (Briccia) again; that when he filed his petition to take the bar examinations in 1954, he 'did not have the slightest intention to hide' from this Court the fact of his 'open cohabitation with a married woman' (Briccia Angeles); that he did not state said fact in his petition, because he did not see in the form of the petition being used in 1954 that the fact must be stated; and that since his birth, he thought and believed he was a man of good moral character, and it was only from the Solicitor General that he first learned he was not so; and that he did not commit perjury or fraudulent concealment when he filed his petition to take the bar examinations in 1954." (Report of the Court Investigators, pp. 6-8, March 6, 1962). After hearing, the investigators submitted a report with the finding that: 1) Respondent used his knowledge of the law to take advantage by having illicit relations with complainant, knowing as he did, that by committing immoral acts on her, he was free from any criminal liability; and 2) Respondent committed gross immorality by continuously cohabiting with a married woman even after he became a lawyer in 1955 to the present; and 3) That respondent falsified the truth as to his moral character in his petition to take the 1954 bar examinations, being then immorally (adulterously) in cohabitation with his common-law wife, Briccia Angeles, a married woman. The investigators also recommended that the respondent be disbarred or alternatively, be suspended from the practice of law for a period of one year.

22 Upon the submission of this report, a copy of which was served on respondent, through his counsel of record, the case was set for hearing before the Court on April 30, 1962. Respondent asked leave to file his memorandum in lieu of oral argument. This was granted and the corresponding memorandum was duly filed. It is an admitted and uncontroverted fact that the respondent had sexual relations with the complainant several times, and as a consequence she bore him a child on June 2, 1959; and that he likewise continuously cohabited with Briccia Angeles, in an adulterous manner, from 1942 up to the present. The main point in issue is thus limited illicit relations with the complainant Josefina Royong the and the open cohabitation with Briccia Angeles, a married woman, are sufficient grounds to cause the respondent's disbarment. It is argued by the respondent that he is not liable for disbarment notwithstanding his illicit relations with the complainant and his open cohabitation with Briccia Angeles, a married woman, because he has not been convicted of any crime involving moral turpitude. It is true that the respondent has not been convicted of rape, seduction, or adultery on this count, and that the grounds upon which the disbarment proceedings is based are not among those enumerated by Section 25, Rule 127 of the Rules of Court for which a lawyer may be disbarred. But it has already been held that this enumeration is not exclusive and that the power of the courts to exclude unfit and unworthy members of the profession is inherent; it is a necessary incident to the proper administration of justice; it may be exercised without any special statutory authority, and in all proper cases unless positively prohibited by statute; and the power may be exercised in any manner that will give the party be disbarred a fair trial and a fair opportunity to be heard. (1 Francisco, Rules of Court [1958 ed.] 698, citing In Re Pelaez, 44 Phil. 567). Although it is a well settled rule that the legislature (or the Supreme Court by virtue of its rule-making power) may provide that certain acts or conduct shall require disbarment, the accepted doctrine is that statutes and rules merely regulate the power to disbar instead of creating it, and that such statutes (or rules) do not restrict the general powers of the court over attorneys, who are its officers, and that they may be removed for other than statutory grounds (7 C.J.S. 734). In the United States, where from our system of legal ethics is derived, "the continued possession of a fair private and professional character or a good moral character is a requisite condition for the rightful continuance in the practice of law for one who has been admitted, and its loss requires suspension or disbarment even though the statutes do not specify that as a ground of disbarment". The moral turpitude for which an attorney may be disbarred may consist of misconduct in either his professional or non-professional activities (5 Am. Jur. 417). The tendency of the decisions of this Court has been toward the conclusion that a member of the bar may be removed or suspended from office as a lawyer for other than statutory grounds. Indeed, the rule is so phrased as to be broad enough to cover practically any misconduct of a lawyer (In Re Pelaez, 44 Phil. 567). In the case at bar, the moral depravity of the respondent is most apparent. His pretension that before complainant completed her eighteenth birthday, he refrained from having sexual intercourse with her, so as not to incur criminal liability, as he himself declared and that he limited himself merely to kissing and embracing her and sucking her tongue, indicates a scheming mind, which together with his knowledge of the law, he took advantage of, for his lurid purpose. Moreover, his act becomes more despicable considering that the complainant was the niece of his common-law wife and that he enjoyed a moral ascendancy over her who looked up to him as her uncle. As the Solicitor General observed: "He also took advantage of his moral influence over her. From childhood, Josefina Andalis (Royong), treated him as an uncle and called him 'tata' (uncle), undoubtedly because he is the paramour of a sister of her mother. Considering her age (she was 17 or 18 years old then), her inexperience and his moral ascendency over her, it is not difficult to see why she could not resist him." Furthermore, the blunt admission of his illicit relations with the complainant reveals the respondent to be a person who would suffer no moral compunction for his acts if the same could be done

23 without fear of criminal liability. He has, by these acts, proven himself to be devoid of the moral integrity expected of a member of the bar. The respondent's misconduct, although unrelated to his office, may constitute sufficient grounds for disbarment. This is a principle we have followed since the ruling in In Re Pelaez, 44 Phil. 567, where this Court quoted with approval the following portion of the decision of the Supreme Court of Kansas in the case of Peyton's Appeal (12 Kan. 398, 404), to wit:. The nature of the office, the trust relation which exists between attorney and client, as well as between court and attorney, and the statutory rule prescribing the qualifications of attorneys, uniformly require that an attorney be a person of good moral character. If that qualification is a condition precedent to a license or privilege to enter upon the practice of the law, it would seem to be equally essential during the continuance of the practice and the exercise of the privilege. So it is held that an attorney will be removed not only for malpractice and dishonesty in his profession, but also for gross misconduct not connected with his professional duties, which shows him to be unfit for the office and unworthy of the privileges which his license and the law confer upon him. (Emphasis supplied). Respondent's conduct though unrelated to his office and in no way directly bearing on his profession, has nevertheless rendered him unfit and unworthy of the privileges of a lawyer. We cannot give sanction to his acts. For us to do so would be as the Solicitor General puts it recognizing "a double standard of morality, one for membership to the Philippine Bar, and another for disbarment from the office of the lawyer." If we concede that respondent's adulterous relations and his simultaneous seduction of his paramour's niece did not and do not disqualify him from continuing with his office of lawyer, this Court would in effect be requiring moral integrity as an essential prerequisite for admission to the bar, only to later on tolerate and close its eyes to the moral depravity and character degeneration of the members of the bar. The decisions relied upon by the respondent in justifying his stand that even if he admittedly committed fornication, this is no ground for disbarment, are not controlling. Fornication, if committed under such scandalous or revolting circumstances as have proven in this case, as to shock common sense of decency, certainly may justify positive action by the Court in protecting the prestige of the noble profession of the law. The reasons advanced by the respondent why he continued his adulterous relations with Briccia Angeles, in that she helped him in some way finish his law studies, and that his "sense of propriety and Christian charity" did not allow him to abandon her after his admission to the bar after almost 13 years of cohabitation, are hardly an excuse for his moral dereliction. The means he employed, as he stated, in order to extricate himself from the predicament he found himself in, by courting the complainant and maintaining sexual relations with her makes his conduct more revolting. An immoral act cannot justify another immoral act. The noblest means he could have employed was to have married the complainant as he was then free to do so. But to continue maintaining adulterous relations with a married woman and simultaneously maintaining promiscuous relations with the latter's niece is moral perversion that can not be condoned. Respondent's conduct therefore renders him unfit and unworthy for the privileges of the legal profession. As good character is an essential qualification for admission of an attorney to practice, he may be removed therefrom whenever he ceases to possess such character (7 C.J.S. 735). The respondent further maintains that the Solicitor General exceeded his authority in filing the present complaint against him for seduction, adultery and perjury, as it charges an offense or offenses different from those originally charged in the complaint of January 14, 1959 for rape, and cites as authority Sections 4 and 5 of Rule 128 of the Rules of Court, which state:.

24 SEC. 4. Report of the Solicitor General. Based upon the evidence adduced at the hearing, if the Solicitor General finds no sufficient ground to proceed against the respondent, he shall submit a report to the Supreme Court containing his findings of fact and conclusion, whereupon the respondent shall be exonerated unless the court orders differently. SEC. 5. Complaint of the Solicitor General. Answer of the respondent. If the Solicitor General finds sufficient ground to proceed against the respondent, he shall file the corresponding complaint, accompanied with all the evidence introduced in his investigation, with the Supreme Court, and the respondent shall be served by the clerk of the Supreme Court with a copy of the complaint with direction to answer the same within fifteen days. The contention is devoid of merit. Nothing in the language of the foregoing rules requires the Solicitor General to charge in his complaint the same offense charged in the complaint originally filed by the complainant for disbarment. Precisely, the law provides that should the Solicitor General find sufficient grounds to proceed against the respondent, he shall file the corresponding complaint, accompanied by the evidence introduced in his investigation. The Solicitor General therefore is at liberty to file any case against the respondent he may be justified by the evidence adduced during the investigation.. The respondent also maintains that he did not falsify his petition to take the bar examinations in 1954 since according to his own opinion and estimation of himself at that time, he was a person of good moral character. This contention is clearly erroneous. One's own approximation of himself is not a gauge to his moral character. Moral character is not a subjective term, but one which corresponds to objective reality. Moral character is what a person really is, and not what he or other people think he is. As former Chief Justice Moran observed: An applicant for license to practice law is required to show good moral character, or what he really is, as distinguished from good reputation, or from the opinion generally entertained of him, the estimate in which he is held by the public in the place where he is known. As has been said, ante the standard of personal and professional integrity which should be applied to persons admitted to practice law is not satisfied by such conduct as merely enables them to escape the penalties of criminal law. Good moral character includes at least common honesty (3 Moran, Comments on the Rules of Court, [1957 ed.] 626, citing In Re Weinstein, 42 P. [2d] 744 B.L.D., Cooper v. Greeley. 1 Den. [N.Y.] 3447; In Re Del Rosario, 52 Phil. 399; and People v. Macauley, 82 N.E. 612). Respondent, therefore, did not possess a good moral character at the time he applied for admission to the bar. He lived an adulterous life with Briccia Angeles, and the fact that people who knew him seemed to have acquiesced to his status, did not render him a person of good moral character. It is of no moment that his immoral state was discovered then or now as he is clearly not fit to remain a member of the bar. WHEREFORE, judgment is hereby entered striking the name of herein respondent, Ariston J. Oblena, from the roll of attorneys. Bengzon, C.J., Bautista Angelo, Labrador, Concepcion, Paredes, Regala and Makalintal, JJ., concur. Padilla, Reyes, J.B.L., and Dizon, JJ., took no part.

25 Republic of the Philippines SUPREME COURT Manila EN BANC A.C. No. 561 April 27, 1967

IN RE: ATTY. ISIDRO P. VINZON, respondent. Office of the Solicitor General for complainant. Isidro P. Vinzon for and in his own behalf as respondent. DIZON, J.: This is a disbarment proceeding against Atty. Isidro P. Vinzon of Cavite City referred to Us by the Solicitor General on January 7, 1963 pursuant to the decision of the Court of Appeals in CA-G.R. No. 02243-CR promulgated on October 1, 1962 affirming the one rendered by the Court of First Instance of Manila convicting said respondent and his wife, Filomena D. Vinzon, of the crime of estafa. The pertinent portion of the former reads as follows: In an information filed with the Court of First Instance of Manila, that spouses Isidro P. Vinzon and Filomena B. Vinzon were charged with the crime of estafa for having failed to deliver and for misappropriating the sum of P7,000.00 which represented a portion of the total amount of P9,621.60 of U.S. Depositary check numbered 685891 belonging and payable to Felicidad M. Bagtas as unremarried widow of the deceased veteran Maximino C. Bagtas. After the prosecution had rested its case the defense, filed a motion to dismiss for insufficiency of evidence, which motion was however, denied for lack of merit. Thereafter, the accused waive the right to present their evidence and instead submitted the case for decision. Thus decision was rendered below finding both accused guilty as charged and sentencing them, each to undergo an indeterminate penalty of from 3 months and 11 days of arresto mayor, to 1 year, 8 months and 21 days of prison correccional with the accessory penalties; to indemnify the offended party Felicidad M. Bagtas in the amount of P7,000.60, with subsidiary imprisonment in case of insolvency; and each to pay one-half of the costs. xxx xxx xxx

Wherefore, finding no reversible error in the appealed decision, the same is hereby affirmed, with the costs against the appellants. The attention of the Solicitor General is invited to decision herein for the purpose of instituting disbarment proceedings against the appellant Isidro P. Vinzon, who, it appears from the record, is a member of the Philippine Bar. The facts as found by the Court of Appeals, are as follows: The evidence on record reveals that Felicidad M. Bagtas was found to be mentally incompetent, suffering from schizophrenic reaction, hebephrenic type, upon examination by a psychiatrist of the U.S. Veterans Administration (U.S.V.A.) in the course of the investigation conducted in connection with her application for benefits as the unremarried widow of the late veteran Maximino C. Bagtas (Exh. E). In the same application

26 Felicidad M. Bagtas was assisted by the herein appellant Atty. Isidro P. Vinzon, who on various occasions had asked her to thumbmark serial papers in connection with the application. On April 22, 1955, the appellant above named, as attorney for the widow Bagtas and through a letter which he had thumbmarked by the latter, caused the alteration of the applicant widow's address on record with the U.S.V.A., from San Dionisio, Paraaque, Rizal, to 41 Interior, P. Burgos St., Cavite City (Exh. A-2). Actually, Bagtas continued to reside in Paraaque, the new recorded address was really that of the herein appellants. Sometime in June, 1955 the appellant Filomena B. Vinzon fetched the widow Bagtas and her mother, Susana Osio, together with one Juliet Oliva, from their abode in Paraaque and brought them to the appellants' residence in Cavite where they were supposed to meet an investigator of the U.S.V.A. While there, Osio and Bagtas were asked to sign several papers, the contents of which they did not know, but which the appellants said were in connection with the widow's benefit claim. Then Osio and Oliva were invited by, the appellant Isidro P. Vinzon to go to the municipal building, leaving Bagtas in the company of Mrs. Vinzon. From their tour of the municipal building, Osio and Oliva were brought by Isidro P. Vinzon to a restaurant before they returned to the Vinzon residence. Upon their arrival thereat Osio and Oliva noticed Felicidad Bagtas wiping ink from her thumb, and upon their inquiry, the widow informed them that Mrs. Vinzon had asked her (Bagtas) to thumbprint several times. Shortly thereafter, Bagtas and her companions went home, because the alleged, investigator did not arrive. Later in that same day Mrs. Vinzon reappeared at Paraaque, and told Osio that they would proceed to Manila in order to "get the benefits as early as possible." So once again, Osio and Bagtas went out with Mrs. Vinzon, and in front of the U.S.V.A. building on the Escolta they met a man whom Osio and the widow took to be an agent of the U.S.V.A. This man inquired of Mrs. Vinzon if Felicidad Bagtas was "the one," and upon an affirmative answer the same person brought them to an eatery where Osio was asked to sign something, after which the amount of P2,421.00 and some centavos' were delivered to her. Upon Vinzon's suggestion Osio gave that unnamed man P50.00, and when they were already at the bus terminal on their way home, Osio gave Mrs. Vinzon another amount, making her total disbursement for that afternoon P200.00. In his answer filed on April 22, 1963, respondent alleges the following: 1. That he admits that there is a final decision of the Court of Appeals, a portion of which is quoted in the letter of the Solicitor General dated Dec. 28, 1962; 2. That he, however denies, that a conviction for any crime per se is sufficient ground following suspension or disbarment: 3. That while the decision of the Court of Appeals became final for lack of appeal to the Supreme Court, it does not necessarily follow that the said conviction is absolutely binding on this Hon. Supreme Court if upon hearing of the instant proceedings, turns out to be not legal nor valid under the law and facts, for, in parenthesis, we state that the records of the Hon. Supreme Court can attest to the fact that there is quite a number of Court of Appeals decisions which have been reversed for being illegal and contrary to law by the Supreme Court, which is the highest Tribunal;

27 4. That the findings of facts of the Court of Appeals and its stand on the legal questions raised, are not in accordance with the doctrines cited in Appellant's Brief; 5. That the testimonies of prosecution witnesses viewed in their proper light do not prove any estafa, for nowhere in their evidence to the effect that this respondent had ever cashed the check in question, on the contrary, the evidence of the prosecution simply pointed to an unknown person who delivered certain sum of money to the offended party in the presence of the wife of respondent, and there is even no proof that respondent and said unknown person knew each other at anytime before or after the alleged delivery; 6. That it is respectfully submitted that respondent is innocent of the alleged estafa for (1) there is no evidence that he ever received and cashed the US check involved; (2) no evidence that he ever received the proceeds thereof; (3) no evidence that he had any connivance or connection with the unknown person who according to prosecution evidence was the one who gave a sum of money to offended party; (4) and finally assuming that there was such a check and respondent received the proceeds, in the absence of demand; estafa does not lie. The case has set for hearing at 9:30 A.M. on June 21, 1963 but neither the Solicitor General nor the respondent appeared notwithstanding notice served upon them. Consequently, the case was deemed submitted for decision. The only point to be determined is whether upon conviction for the crime of estafa the respondent may be disbarred. In his answer to the petition for disbarment, respondent prayed that a proper hearing be held, but this notwithstanding he failed to appear at the hearing scheduled to be held on June 21, 1963. This amounts to a waiver of his right to be heard (Arellano Toledo, Adm. Case No. 266, April 27, 1963).1wph1.t Upon the other hand, and dealing now with the merits of the case, there can be no question that the term "moral turpitude" includes everything which is done contrary to justice, honesty, or good morals. In essence and in all respects, estafa, no doubt, is a crime involving moral turpitude because the act is unquestionably against justice, honesty and good morals (In re Gutierrez, Adm. Case No. 263, July 31, 1962; Bouvier's Law Dictionary; In re Basa, 41 Phil. 275-76). As respondent's guilt can not now be questioned, his disbarment is inevitable. Wherefore, respondent Isidro P. Vinzon is hereby disbarred. Concepcion, C.J., Reyes, J.B.L., Regala, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur. Castro, J., took no part.

28 G.R. No. 180363 EDGAR Y. TEVES, petitioner, versus THE COMMISSION ON ELECTIONS and HERMINIO G. TEVES, respondents.

Promulgated: April 28, 2009 x ---------------------------------------------------------------------------------------- x

CONCURRING OPINION BRION, J.

I fully concur with the ponencia of my esteemed colleague, Justice Consuelo Ynares-Santiago. I add these views to further explore the term moral turpitude a term that, while carrying far-reaching effects, embodies a concept that to date has not been given much jurisprudential focus.

I. Historical Roots The term moral turpitude first took root under the United States (U.S.) immigration laws.20[1] Its history can be traced back as far as the 17th century when the States of Virginia and Pennsylvania enacted the earliest immigration resolutions excluding criminals from America, in response to the British governments policy of sending convicts to the colonies. State legislators at that time strongly suspected that Europe was deliberately exporting its human liabilities.21[2] In the U.S., the term moral turpitude first appeared in the Immigration Act of March 3, 1891, which directed the exclusion of persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude; this marked the first time the U.S. Congress used the term moral turpitude in immigration laws.22[3] Since then, the presence of moral turpitude has been used as a test in a variety of situations, including legislation governing the disbarment of attorneys and the revocation of medical licenses. Moral turpitude also has been judicially used as a criterion in disqualifying and impeaching witnesses, in determining the measure of contribution between joint tortfeasors, and in deciding whether a certain language is slanderous.23[4]

20[1] 21[2]

Jordan v. De George, 341 U.S. 223, 227 (1951). Brian C. Harms, Redefining Crimes of Moral Turpitude: A Proposal to Congress, 15 GEO. IMMIGR. L.J. 259, 261 (2001). 22[3] Id. 23[4] Supra note 1, p. 227.

29 In 1951, the U.S. Supreme Court ruled on the constitutionality of the term moral turpitude in Jordan v. De George.24[5] The case presented only one question: whether conspiracy to defraud the U.S. of taxes on distilled spirits is a crime involving moral turpitude within the meaning of Section 19 (a) of the Immigration Act of 1919 (Immigration Act). Sam De George, an Italian immigrant was convicted twice of conspiracy to defraud the U.S. government of taxes on distilled spirits. Subsequently, the Board of Immigration Appeals ordered De Georges deportation on the basis of the Immigration Act provision that allows the deportation of aliens who commit multiple crimes involving moral turpitude. De George argued that he should not be deported because his tax evasion crimes did not involve moral turpitude. The U.S. Supreme Court, through Chief Justice Vinzon, disagreed, finding that under an unbroken course of judicial decisions, the crime of conspiring to defraud the U.S. is a crime involving moral turpitude.25[6] Notably, the Court determined that fraudulent conduct involved moral turpitude without exception: Whatever the phrase involving moral turpitude may mean in peripheral cases, the decided cases make it plain that crimes in which fraud was an ingredient have always been regarded as involving moral turpitude.xxx Fraud is the touchstone by which this case should be judged.xxx We therefore decide that Congress sufficiently forewarned respondent that the statutory consequence of twice conspiring to defraud the United States is deportation. 26[7] Significantly, the U.S. Congress has never exactly defined what amounts to a crime involving moral turpitude. The legislative history of statutes containing the moral turpitude standard indicates that Congress left the interpretation of the term to U.S. courts and administrative agencies. 27[8] In the absence of legislative history as interpretative aid, American courts have resorted to the dictionary definition the last resort of the baffled judge.28[9] The most common definition of moral turpitude is similar to one found in the early editions of Blacks Law Dictionary: [An] act of baseness, vileness, or the depravity in private and social duties which man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man. xxx Act or behavior that gravely violates moral sentiment or accepted moral standards of community and is a morally culpable quality held to be present in some criminal offenses as distinguished from others. xxx The quality of a crime involving grave infringement of the moral sentiment of the community as distinguished from statutory mala prohibita.29[10]
24[5] 25[6]

Id. Id., p. 229. 26[7] Id.. p. 232. 27[8] Derrick Moore, Crimes Involving Moral Turpitude: Why the Void-For-Vagueness Argument is Still Available and Meritorious, 41 CORNELL INTL L.J. 813, 816 (2008). 28[9] Id. 29[10] Id.

30

In the Philippines, the term moral turpitude was first introduced in 1901 in Act No. 190, otherwise known as the Code of Civil Actions and Special Proceedings. 30[11] The Act provided that a member of the bar may be removed or suspended from his office as lawyer by the Supreme Court upon conviction of a crime involving moral turpitude.31[12] Subsequently, the term moral turpitude has been employed in statutes governing disqualifications of notaries public,32[13] priests and ministers in solemnizing marriages,33[14] registration to military service,34[15] exclusion35[16] and naturalization of aliens,36[17] discharge of the accused to be a state witness,37[18] admission to the bar,38[19] suspension and removal of elective local officials,39[20] and disqualification of persons from running for any elective local position.40[21] In Re Basa,41[22] a 1920 case, provided the first instance for the Court to define the term moral turpitude in the context of Section 21 of the Code of Civil Procedure on the disbarment of a lawyer for conviction of a crime involving moral turpitude. Carlos S. Basa, a lawyer, was convicted of the crime of abduction with consent. The sole question presented was whether the crime of abduction with consent, as punished by Article 446 of the Penal Code of 1887, involved moral turpitude. The Court, finding no exact definition in the statutes, turned to Bouviers Law Dictionary for guidance and held: "Moral turpitude," it has been said, "includes everything which is done contrary to justice, honesty, modesty, or good morals." (Bouvier's Law Dictionary, cited by numerous courts.) Although no decision can be found which has decided the exact question, it cannot admit of doubt that crimes of this character involve moral turpitude. The inherent nature of the act is such that it is against good morals and the accepted rule of right conduct.

30[11] 31[12]

Effective September 1, 1901. Now RULES OF COURT, Rule 138, Section 27. 32[13] ACT NO. 2711, Section 234, March 10, 1917. 33[14] ACT NO. 3613, Section 45, December 4, 1929. 34[15] COMMONWEALTH ACT No. 1, Section 57, December 21, 1935. 35[16] COMMONWEALTH ACT No. 473, Section 4, June 17, 1939. 36[17] COMMONWEALTH ACT No. 613, Section 29, August 26, 1940. 37[18] REVISED RULES OF CRIMINAL PROCEDURE, Rule 119, Section 17. 38[19] RULES OF COURT, Rule 138, Section 2. 39[20] BATAS PAMBANSA BLG. 337, Section 60, February 10, 1983; REPUBLIC ACT NO. 7160, Section 60, January 1, 1992. 40[21] BATAS PAMBANSA BLG. 881, Section 12, December 3, 1985; REPUBLIC ACT NO. 7160, Section 40, January 1, 1992. 41[22] 41 Phil. 275, 276 (1920).

31 Thus, early on, the Philippines followed the American lead and adopted a general dictionary definition, opening the way for a case-to-case approach in determining whether a crime involves moral turpitude.

II. Problems with the Definition of Moral Turpitude Through the years, the Court has never significantly deviated from the Blacks Law Dictionary definition of moral turpitude as an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman, or conduct contrary to justice, honesty, modesty, or good morals.42[23] This definition is more specific than that used in In re Vinzon43[24] where the term moral turpitude was considered as encompassing everything which is done contrary to justice, honesty, or good morals.44[25]

In the U.S., these same definitions have been highly criticized for their vagueness and ambiguity.45[26] In Jordan, Justice Jackson noted that except for the Courts [majority opinion], there appears to be a universal recognition that we have here an undefined and undefinable standard. 46[27] Thus, the phrase crimes involving moral turpitude has been described as vague, nebulous, most unfortunate, and even bewildering. 47[28]

Criticisms of moral turpitude as an inexactly defined concept are not unwarranted. First, the current definition of the term is broad. It can be stretched to include most kinds of wrongs in society -a result that the Legislature could not have intended. This Court itself concluded in IRRI v. NLRC48[29] that moral turpitude is somewhat a vague and indefinite term, the meaning of which must be left to the process of judicial inclusion or exclusion as the cases are reached once again confirming, as late as 1993 in IRRI, our case-by-case approach in determining the crimes involving moral turpitude.

42[23]

Dela Torre v. Commission on Elections, G.R. No. 121592, July 5, 1996, 258 SCRA 483, 487, citing Zari v. Flores, 94 SCRA 317, 323 (1979). 43[24] G.R. No. 561, April 27, 1967, 19 SCRA 815. 44[25] Cited in Rafael Christopher Yap, Bouncing Doctrine: Re-Examining the Supreme Courts Pronouncements of Batas Pambansa Blg. 22 as a Crime of Moral Turpitude (2006), p. 13 (unpublished J.D. thesis, Ateneo de Manila University, on file with the Professional Schools Library, Ateneo de Manila University). 45[26] Supra note 8, p. 816. 46[27] Supra note 1, p. 235. 47[28] Supra note 8, p. 814. 48[29] G.R. No. 97239, May 12, 1993, 221 SCRA 760.

32 Second, the definition also assumes the existence of a universally recognized code for socially acceptable behavior -- the private and social duties which man owes to his fellow man, or to society in general; moral turpitude is an act violating these duties. The problem is that the definition does not state what these duties are, or provide examples of acts which violate them. Instead, it provides terms such as baseness, vileness, and depravity, which better describe moral reactions to an act than the act itself. In essence, they are conclusory but non-descriptive.49[30] To be sure, the use of morality as a norm cannot be avoided, as the term moral turpitude contains the word moral and its direct connotation of right and wrong. Turpitude, on the other hand, directly means depravity which cannot be appreciated without considering an acts degree of being right or wrong. Thus, the law, in adopting the term moral turpitude, necessarily adopted a concept involving notions of morality standards that involve a good measure of subjective consideration and, in terms of certainty and fixity, are far from the usual measures used in law.50[31]

Third, as a legal standard, moral turpitude fails to inform anyone of what it requires.51[32] It has been said that the loose terminology of moral turpitude hampers uniformity since [i]t is hardly to be expected that a word which baffle judges will be more easily interpreted by laymen. 52[33] This led Justice Jackson to conclude in Jordan that moral turpitude offered judges no clearer guideline than their own consciences, inviting them to condemn all that we personally disapprove and for no better reason than that we disapprove it.53[34] This trait, however, cannot be taken lightly, given that the consequences of committing a crime involving moral turpitude can be severe.

Crimes Categorized as Crimes Involving Moral Turpitude54[35]

Since the early 1920 case of In re Basa,55[36] the Court has maintained its case-by-case categorization of crimes on the basis of moral turpitude and has labeled specific crimes as necessarily
49[30]

Nate Carter, Shocking The Conscience of Mankind: Using International Law To Define Crimes Involving Moral Turpitude In Immigration Law, 10 LEWIS & CLARK L. REV. 955, 959 (2006). 50[31] A similar concept is obscenity, whose standards have been in continuous development in U.S. Supreme Court rulings. See Roth v. United States; Albert v. California, 354 U.S. 476 (1957); Miller v. California, 413 U.S. 15 (1973) and Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973). Only a decade after Roth, Justice Harlan observed that [t]he subject of obscenity has produced a variety of views among the members of the Court unmatched in any other course of constitutional adjudication. As evidence, Justice Harlan noted that in the thirteen obscenity cases decided in the decade after Roth, there were a total of 55 separate opinions among the Justices; Geoffrey R . Stone et al., Constitutional Law, 1255, (1996 ed.) citing Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704-705, 705 n.1 (1968) (Harlan, J., dissenting). 51[32] Supra note 30, p. 959. 52[33] Supra note 8, p. 813, citing Note, Crimes Involving Moral Turpitude, 43 HARV. L. REV. 117, 121 (1930). 53[34] Supra note 1, p. 242. 54[35] Supra note 25, pp. 20-21.

33 involving moral turpitude. The following is a list, not necessarily complete, of the crimes adjudged to involve moral turpitude: 1. Abduction with consent56[37] 2. Bigamy57[38] 3. Concubinage58[39] 4. Smuggling59[40] 5. Rape60[41] 6. Estafa through falsification of a document61[42] 7. Attempted Bribery62[43] 8. Profiteering63[44] 9. Robbery64[45] 10. Murder, whether consummated or attempted65[46] 11. Estafa66[47] 12. Theft67[48] 13. Illicit Sexual Relations with a Fellow Worker68[49]

55[36] 56[37]

Supra note 22. Id. 57[38] In Re Marcelino Lontok, 43 Phil. 293 (1922). 58[39] In Re Juan C. Isada, 60 Phil 915 (1934); Macarrubo v. Macarrubo, A.C. No. 6148, February 27, 2004, 424 SCRA 42 citing Laguitan v. Tinio, A.C. No. 3049, December 4, 1989, 179 SCRA 837. 59[40] In Re Atty. Tranquilino Rovero, 92 Phil. 128 (1952). 60[41] Mondano v. Silvosa, 97 Phil. 143 (1955). 61[42] In the Matter of Eduardo A. Abesamis, 102 Phil.1182 (1958). 62[43] In Re Dalmacio De Los Angeles, 106 Phil 1 (1959). 63[44] Tak Ng v. Republic of the Philippines, 106 Phil. 727 (1959). 64[45] Paras v. Vailoces, Adm. Case No. 439, April 12, 1961, 1 SCRA 954. 65[46] Can v. Galing, G.R. No. L-54258, November 27, 1987, 155 SCRA 663 citing In Re Gutierrez, Adm. Case No. L-363, July 31, 1962, 5 SCRA 661. 66[47] In Re: Atty. Isidro P. Vinzon, Admin. Case No. 561, April 27, 1967, 19 SCRA 815. 67[48] Philippine Long Distance Telephone Company v. National Labor Relations Commission, G.R. No. L-63652 October 18, 1988, 166 SCRA 422. 68[49] Id.

34 14. Violation of BP Bldg. 2269[50] 15. Falsification of Document70[51] 16. Intriguing against Honor71[52] 17. Violation of the Anti-Fencing Law72[53] 18. Violation of Dangerous Drugs Act of 1972 (Drug-pushing)73[54] 19. Perjury74[55] 20. Forgery75[56] 21. Direct Bribery76[57] 22. Frustrated Homicide77[58] Zari v. Flores78[59] is one case that has provided jurisprudence its own list of crimes involving moral turpitude, namely: adultery, concubinage, rape, arson, evasion of income tax, barratry, bigamy, blackmail, bribery, criminal conspiracy to smuggle opium, dueling, embezzlement, extortion, forgery, libel, making fraudulent proof of loss on insurance contract, murder, mutilation of public records, fabrication of evidence, offenses against pension laws, perjury, seduction under the promise of marriage, estafa, falsification of public document, and estafa thru falsification of public document.79[60] Crimes Categorized as Crimes Not Involving Moral Turpitude80[61]

The

Court,

on

the

other

hand,

has

also

had

the

occasion

to

69[50]

People v. Tuanda, A.M. No. 3360, January 30, 1990, 181 SCRA 692; Paolo C. Villaber v. Commission on Elections, G.R. No.148326, November 15, 2001, 369 SCRA 126; Selwyn F. Lao v. Atty. Robert W. Medel, A.C. No. 5916, July 1, 2003, 405 SCRA 227. 70[51] University of the Philippines v. Civil Service Commission, G.R. No. 89454, April 20, 1992, 208 SCRA 174. 71[52] Betguen v. Masangcay, A.M. No. P-93-822, December 1, 1994, 238 SCRA 475. 72[53] Supra note 23 at 483. 73[54] Office of the Court Administrator v. Librado, A.M. No. P-94-1089, August 22, 1996, 260 SCRA 624. 74[55] People v. Sorrel, G.R. No. 119332, August 29, 1997, 278 SCRA 368. 75[56] Campilan v. Campilan Jr., A.M. No. MTJ-96-1100, April 24, 2002, 381 SCRA 494. 76[57] Magno v. Commission on Elections, G.R. No. 147904, October 4, 2002, 390 SCRA 495. 77[58] Soriano v. Dizon, A.C. No. 6792, January 25, 2006, 480 SCRA 1. 78[59] Adm. No. (2170-MC) P-1356, November 21, 1979, 94 SCRA 317, 323. 79[60] Supra note 25 at 21. 80[61] Id.

35 categorically rule that certain crimes do not involve moral turpitude, namely: 1. Minor transgressions of the law (i.e., conviction for speeding)81[62] 2. Illegal recruitment82[63] 3. Slight physical injuries and carrying of deadly weapon (Illegal possession of firearms) 83[64] 4. Indirect Contempt84[65] III. Approaches and Standards. Even a cursory examination of the above lists readily reveals that while the concept of moral turpitude does not have one specific definition that lends itself to easy and ready application, the Court has been fairly consistent in its understanding and application of the term and has not significantly deviated from what it laid down in In re Basa. The key element, directly derived from the word turpitude, is the standard of depravity viewed from a scale of right and wrong.

The application of this depravity standard can be made from at least three perspectives or approaches, namely: from the objective perspective of the act itself, irrespective of whether or not the act is a crime; from the perspective of the crime itself, as defined through its elements; and from the subjective perspective that takes into account the perpetrators level of depravity when he committed the crime. The Court best expressed the first approach in Zari v. Flores85[66] where the Court saw the involvement of moral turpitude where an act is intrinsically immoral, regardless of whether it is punishable by law or not. The Court emphasized that moral turpitude goes beyond being merely mala prohibita; the act itself must be inherently immoral. Thus, this approach requires that the committed act itself be examined, divorced from its characterization as a crime. A ruling that exemplifies this approach is that made in the U.S. case In The Matter of G---86[67] where, in considering gambling, it was held that:

81[62] 82[63]

Ng Teng Lin v. Republic, 103 Phil. 484 (1959). Court Administrator v. San Andres, A.M. No. P-89-345, May 31, 1991, 197 SCRA 704. 83[64] People v. Yambot, G.R. No. 120350, October 13, 2000, 343 SCRA 20. 84[65] Garcia v. De Vera, A.C. No. 6052, December 11, 2003, 418 SCRA 27. 85[66] Supra note 59.
86[67]

1 I. & N. Dec. 59, 1941 WL 7913 (BIA).

36 Gambling has been in existence since time immemorial. Card playing for small stakes is a common accompaniment of social life; small bets on horse racing and the policy or numbers games are diversions of the masses. That such enterprises exist surreptitiously is a matter of common knowledge. Many countries permit it under a license system. In ancient times laws were enacted to discourage people from gambling on the theory that the State had first claim upon their time and energy, and at later dates antigambling laws were aimed especially at the activity as practiced by the working classes. Present-day movements to suppress gambling are also tinged with other considerations. In urban communities in the past few decades the purely religious opposition to gambling has tended to become less violent because certain activities, highly reputable according to prevailing social standards, have come more and more to resemble it. Prohibition against gambling has had something of a police rather than a truly penal character. At all times an important fact in arousing antagonism in gambling has been the association, almost inevitable, with sharp practice. In established societies more or less serious attempts are everywhere made, however, to prohibit or to regulate gambling in its more notorious forms. It would appear that statutes permitting gambling, such as those under discussion, rest primarily on the theory that they are in the interest of public policy: that is to regulate and restrict any possible abuse, to obviate cheating and other corrupt practices that may result if uncontrolled.

From this discussion, the Court went on to conclude that gambling is a malum prohibitum that is not intrinsically evil and, thus, is not a crime involving moral turpitude.

With the same approach, but with a different result, is Office of the Court Administrator v. Librado,87[68] a case involving drug possession. Librado, a Deputy Sheriff in MTCC Iligan City was convicted of possession of shabu, a prohibited drug. The Office of the Court Administrator

commenced an administrative case against him and he was subsequently suspended from office. In his subsequent plea for reinstatement, the Court strongly denounced drug possession as an especially vicious crime, one of the most pernicious evils that has ever crept into our society For those who become addicted to it not only slide into the ranks of the living dead, what is worse, they become a grave menace to the safety of law abiding members of society. The Court, apparently drawing on what society deems important, held that the use of drugs amounted to an act so inherently evil that no law was needed to deem it as such; it is an evil without need for a law to call it evil 88[69] - an immoral act in itself regardless of whether it is punishable or not.89[70]

87[68] 88[69]

Supra note 54. Supra note 25, p. 23. 89[70] Supra note 59, p. 323.

37 In People v. Yambot,90[71] the Court categorically ruled that the possession of a deadly weapon does not involve moral turpitude since the act of carrying a weapon by itself is not inherently wrong in the absence of a law punishing it. Likewise, the Court acknowledged in Court Administrator v. San Andres91[72] that illegal recruitment does not involve moral turpitude since it is not in itself an evil act being ordinarily an act in the ordinary course of business in the absence of the a law prohibiting it.

The second approach is to look at the act committed through its elements as a crime. In Paras v. Vailoces,92[73] the Court recognized that as a general rule, all crimes of which fraud is an element are looked on as involving moral turpitude. This is the same conclusion that the U.S. Supreme Court made in Jordan, i.e., that crimes requiring fraud or intent to defraud always involve moral turpitude.93[74] Dela Torre v. Commission on Elections94[75] is a case in point that uses the second approach and is one case where the Court even dispensed with the review of facts and circumstances surrounding the commission of the crime since Dela Torre did not assail his conviction. Dela Torre was disqualified by the Comelec from running as Mayor of Cavinti, Laguna on the basis of his conviction for violation of Presidential Decree No. 1612, otherwise known as the Anti-Fencing Law. Dela Torre appealed to this Court to overturn his disqualification on the ground that the crime of fencing is not a crime involving moral turpitude. The Court ruled that moral turpitude is deducible from the third element. Actual knowledge by the fence of the fact that property received is stolen displays the same degree of malicious deprivation of ones rightful property as that which animated the robbery or theft which, by their very nature, are crimes of moral turpitude.

To be sure, the elements of the crime can be a critical factor in determining moral turpitude if the second approach is used in the crimes listed above as involving moral turpitude. Commission on Elections,
95[76]

In Villaber v.

the Court, by analyzing the elements alone of the offense under Batas

Pambansa Blg. 22, held that the presence of the second element manifest moral turpitude in that a drawer who issues an unfunded check deliberately reneges on his private duties he owes his fellow men or society in a manner contrary to accepted and customary rule of right and duty, justice, honesty or good morals. The same conclusion was reached by the Court in Magno v. Commission on

90[71] 91[72]

Supra note 64. Supra note 63. 92[73] Supra note 45. 93[74] Supra note 1, p. 228. 94[75] Supra note 23. 95[76] Supra note 50, p. 134.

38 Elections,96[77] when it ruled that direct bribery involves moral turpitude, thus:

Moral turpitude can be inferred from the third element. The fact that the offender agrees to accept a promise or gift and deliberately commits an unjust act or refrains from performing an official duty in exchange for some favors, denotes a malicious intent on the part of the offender to renege on the duties which he owes his fellowmen and society in general. Also, the fact that the offender takes advantage of his office and position is a betrayal of the trust reposed on him by the public. It is a conduct clearly contrary to the accepted rules of right and duty, justice, honesty and good morals. In all respects, direct bribery is a crime involving moral turpitude. [Emphasis supplied]

The third approach, the subjective approach, essentially takes the offender and his acts into account in light of the attendant circumstances of the crime: was he motivated by ill will indicating depravity? The Court apparently used this approach in Ao Lin v. Republic,97[78] a 1964 case, when it held that the use of a meter stick without the corresponding seal of the Internal Revenue Office by one who has been engaged in business for a long time, involves moral turpitude because it involves a fraudulent use of a meter stick, not necessarily because the Government is cheated of the revenue involved in the sealing of the meter stick, but because it manifests an evil intent on the part of the petitioner to defraud customers purchasing from him in respect to the measurement of the goods purchased. In IRRI v. NLRC,98[79] the International Rice Research Institute terminated the employment contract of Nestor Micosa on the ground that he has been convicted of the crime of homicide a a crime involving moral turpitude. The Court refused to characterize the crime of homicide as one of moral turpitude in light of the circumstances of its commission. The Court ruled: These facts show that Micosas intention was not to slay the victim but only to defend his person. The appreciation in his favor of the mitigating circumstances of self-defense and voluntary surrender, plus the total absence of any aggravating circumstances demonstrate that Micosas character and intentions were not inherently vile, immoral or unjust. [italics supllied].

The Court stressed, too, not only the subjective element, but the need for the appreciation of facts in considering whether moral turpitude exists an unavoidable step under the third approach. Thus, the Court explained:

96[77] 97[78]

Supra note 57. G.R. No. L-18506, January 30, 1964, 10 SCRA 27. 98[79] Supra note 29.

39

This is not to say that all convictions of the crime of homicide do not involve moral turpitude. Homicide may or may not involve moral turpitude depending on the degree of the crime. Moral turpitude is not involved in every criminal act and is not shown by every known and intentional violation of statute, but whether any particular conviction involves moral turpitude may be a question of fact and frequently depends on all the surrounding circumstances. [Emphasis supplied]

In contrast, while IRRI refused to characterize the crime of homicide as one of moral turpitude, the recent case of Soriano v. Dizon99[80] held that based on the circumstances, the crime of frustrated homicide committed by the respondent involved moral turpitude. In Soriano, complainant Soriano filed a disbarment case against respondent Atty. Manuel Dizon alleging that the crime of frustrated homicide involves moral turpitude under the circumstances surrounding its commission, and was a sufficient ground for his disbarment under Section 27 of Rule 138 of the Rules of Court. The Court after noting the factual antecedents of IRRI held that The present case is totally different. As the IBP correctly found, the circumstances clearly evince the moral turpitude of respondent and his unworthiness to practice law. Atty. Dizon was definitely the aggressor, as he pursued and shot complainant when the latter least expected it. The act of aggression shown by respondent will not be mitigated by the fact that he was hit once and his arm twisted by complainant. Under the circumstances, those were reasonable actions clearly intended to fend off the lawyers assault. We also consider the trial courts finding of treachery as a further indication of the skewed morals of respondent. He shot the victim when the latter was not in a position to defend himself. In fact, under the impression that the assault was already over, the unarmed complainant was merely returning the eyeglasses of Atty. Dizon when the latter unexpectedly shot him. To make matters worse, respondent wrapped the handle of his gun with a handkerchief so as not to leave fingerprints. In so doing, he betrayed his sly intention to escape punishment for his crime. The totality of the facts unmistakably bears the earmarks of moral turpitude. By his conduct, respondent revealed his extreme arrogance and feeling of selfimportance. As it were, he acted like a god on the road, who deserved to be venerated and never to be slighted. Clearly, his inordinate reaction to a simple traffic incident reflected poorly on his fitness to be a member of the legal profession. His overreaction also evinced vindictiveness, which was definitely an undesirable trait in any individual, more so in a lawyer. In the tenacity with which he pursued complainant, we see not the persistence of a person who has been grievously wronged, but the obstinacy of one trying to assert a false sense of superiority and to exact revenge. 100[81] [Emphasis supplied]

99[80]

100[81]

Supra note 58. Supra note 58, pp. 10-11.

40

Laguitan v. Tinio,101[82] expressed in terms of the protection of the sanctity of marriage,102[83] also necessarily looked at the subjective element because the offenders concubinage involved an assault on the basic social institution of marriage. Another subjective element case, in terms of looking at the damage wrought by the offenders act, is People v. Jamero103[84] where the Court disregarded the appellants argument that the trial court erred in ordering the discharge of Inocencio Retirado from the Information in order to make him a state witness, since he has been previously convicted of the crime of malicious mischief a crime involving moral turpitude. The Court said: In the absence of any evidence to show the gravity and the nature of the malicious mischief committed, We are not in a position to say whether or not the previous conviction of malicious mischief proves that accused had displayed the baseness, the vileness and the depravity which constitute moral turpitude. And considering that under paragraph 3 of Article 329 of the Revised Penal Code, any deliberate act (not constituting arson or other crimes involving destruction) causing damage in the property of another, may constitute the crime of malicious mischief, We should not make haste in declaring that such crime involves moral turpitude without determining, at least, the value of the property destroyed and/or the circumstances under which the act of destroying was committed.104[85] [Emphasis supplied]

Thus, again, the need for a factual determination was considered necessary. In sum, a survey of jurisprudence from the earliest case of In Re Basa105[86] to the recent case of Soriano v. Dizon 106[87] shows that the Court has used varying approaches, but used the same standard or measure the degree of attendant depravity. The safest approach to avoid being misled in ones conclusion is to apply all three approaches, if possible, and to evaluate the results from each of the approaches. A useful caveat in the evaluation is to resolve any doubt in favor of the perpetrator, as a conclusion of moral turpitude invariably signifies a worse consequence for him or her.

IV. The Approaches Applied to TEVES

The Objective Approach

101[82] 102[83]

Supra note 39. Supra note 25, p. 24. 103[84] G.R. No. L-19852, July 29, 1968, 24 SCRA 206. 104[85] Id., pp. 245-246. 105[86] Supra note 22. 106[87] Supra note 58.

41 The crime for which petitioner Teves was convicted (possession of pecuniary or financial interest in a cockpit) is, at its core, related to gambling an act that by contemporary community standards is not per se immoral. Other than the ruling heretofore cited on this point,107[88] judicial notice can be taken of state-sponsored gambling activities in the country that, although not without controversy, is generally regarded to be within acceptable moral limits. The ponencia correctly noted that prior to the enactment of the Local Government Code of 1991, mere possession by a public officer of pecuniary interest in a cockpit was not expressly prohibited. This bit of history alone is an indicator that, objectively, no essential depravity is involved even from the standards of a holder of a public office. This reasoning led the ponencia to conclude that its illegality does not mean that violation thereof . . . makes such possession of interest inherently immoral.108[89]

From the Perspective of the Elements of the Crime

Under this approach, we determine whether a crime involves moral turpitude based solely on our analysis of the elements of the crime alone.

The essential elements of the offense of possession of prohibited interest (Section 3(h) of the Anti-Graft Law) for which the petitioner was convicted are:

1. The accused is a public officer; 2. He has a direct or indirect financial or pecuniary interest in any business, contract or transaction; and 3. He is prohibited from having such interest by the Constitution or any law.

From the perspective of moral turpitude, the third element is the critical element. This element shows that the holding of interest that the law covers is not a conduct clearly contrary to the accepted rules of right and duty, justice, honesty and good morals; it is illegal solely because of the prohibition that exists in law or in the Constitution. Thus, no depravity immediately leaps up or suggests itself based on the elements of the crime committed.

107[88] 108[89]

Supra note 67. Ponencia, p. 9.

42 The Subjective Approach This approach is largely the ponencias approach, as it expressly stated that a determination of all surrounding circumstances of the violation of the statute must be considered. 109[90] In doing this, the ponencia firstly considered that the petitioner did not use his official capacity in connection with the interest in the cockpit, not that he hid this interest by transferring it to his wife, as the transfer took effect before the effectivity of the law prohibiting the possession of interest. The ponencia significantly noted, too, that the violation was not intentionally committed in a manner contrary to justice, modesty, or good morals, but due simply to Teves lack of awareness or ignorance of the prohibition. This, in my view, is the clinching argument that no moral turpitude can be involved as no depravity can be gleaned where intent is clearly absent.

Conclusion

To recapitulate, all three approaches point to the conclusion that no moral turpitude was involved in the crime Teves committed, with the predominant reasons being the first (or objective) and the third (or subjective) approaches. Analysis in this manner, with one approach reinforcing another, results in clear and easily appreciated conclusions.

ARTURO D. BRION Associate Justice

109[90]

Id., p. 7.

43 Republic of the Philippines SUPREME COURT Manila SECOND DIVISION A.M. No. 1608 August 14, 1981 MAGDALENA T. ARCIGA complainant, vs. SEGUNDINO D. MANIWANG respondent.

AQUINO, J.: Magdalena T. Arciga in her complaint of February 24, 1976 asked for the disbarment of lawyer Segundino D. Maniwang (admitted to the Bar in 1975 ) on the ground of grossly immoral conduct because he refused to fulfill his promise of marriage to her. Their illicit relationship resulted in the birth on September 4, 1973 of their child, Michael Dino Maniwang. Magdalena and Segundino got acquainted sometime in October, 1970 at Cebu City. Magdalena was then a medical technology student in the Cebu Institute of Medicine while Segundino was a law student in the San Jose Recoletos College. They became sweethearts but when Magdalena refused to have a tryst with Segundino in a motel in January, 1971, Segundino stopped visiting her. Their paths crossed again during a Valentine's Day party in the following month. They renewed their relationship. After they had dinner one night in March, 1971 and finding themselves alone (like Adam and Eve) in her boarding house since the other boarders had gone on vacation, they had sexual congress. When Segundino asked Magdalena why she had refused his earlier proposal to have sexual intercourse with him, she jokingly said that she was in love with another man and that she had a child with still another man. Segundino remarked that even if that be the case, he did not mind because he loved her very much. Thereafter, they had repeated acts of cohabitation. Segundino started telling his acquaintances that he and Magdalena were secretly married. In 1972 Segundino transferred his residence to Padada, Davao del Sur. He continued his law studies in Davao City. .Magdalena remained in Cebu. He sent to her letters and telegrams professing his love for her (Exh. K to Z). When Magdalena discovered in January, 1973 that she was pregnant, she and Segundino went to her hometown, Ivisan, Capiz, to apprise Magdalena's parents that they were married although they were not really so. Segundino convinced Magdalena's father to have the church wedding deferred until after he had passed the bar examinations. He secured his birth certificate preparatory to applying for a marriage license. Segundino continued sending letters to Magdalena wherein he expressed his love and concern for the baby in Magdalena's womb. He reassured her time and again that he would marry her once he passed the bar examinations. He was not present when Magdalena gave birth to their child on September 4, 1973 in the Cebu Community Hospital. He went to Cebu in December, 1973 for the baptism of his child.

44 Segundino passed the bar examinations. The results were released on April 25, 1975. Several days after his oath-taking, which Magdalena also attended, he stopped corresponding with Magdalena. Fearing that there was something amiss, Magdalena went to Davao in July, 1975 to contact her lover. Segundino told her that they could not get married for lack of money. She went back to Ivisan. In December, 1975 she made another trip to Davao but failed to see Segundino who was then in Malaybalay, Bukidnon. She followed him there only to be told that their marriage could not take place because he had married Erlinda Ang on November 25, 1975. She was broken-hearted when she returned to Davao. Segundino followed her there and inflicted physical injuries upon her because she had a confrontation with his wife, Erlinda Ang. She reported the assault to the commander of the Padada police station and secured medical treatment in a hospital (Exh. I and J). Segundino admits in his answer that he and Magdalena were lovers and that he is the father of the child Michael. He also admits that he repeatedly promised to marry Magdalena and that he breached that promise because of Magdalena's shady past. She had allegedly been accused in court of oral defamation and had already an illegitimate child before Michael was born. The Solicitor General recommends the dismissal of the case. In his opinion, respondent's cohabitation with the complainant and his reneging on his promise of marriage do not warrant his disbarment. An applicant for admission to the bar should have good moral character. He is required to produce before this Court satisfactory evidence of good moral character and that no charges against him, involving moral turpitude, have been filed or are pending in any court. If good moral character is a sine qua non for admission to the bar, then the continued possession of good moral character is also a requisite for retaining membership in the legal profession. Membership in the bar may be terminated when a lawyer ceases to have good moral character (Royong vs. Oblena, 117 Phil. 865). A lawyer may be disbarred for grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude". A member of the bar should have moral integrity in addition to professional probity. It is difficult to state with precision and to fix an inflexible standard as to what is "grossly immoral conduct" or to specify the moral delinquency and obliquity which render a lawyer unworthy of continuing as a member of the bar. The rule implies that what appears to be unconventional behavior to the straight-laced may not be the immoral conduct that warrants disbarment. Immoral conduct has been defined as "that conduct which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community" (7 C.J.S. 959). Where an unmarried female dwarf possessing the intellect of a child became pregnant by reason of intimacy with a married lawyer who was the father of six children, disbarment of the attorney on the ground of immoral conduct was justified (In re Hicks 20 Pac. 2nd 896). There is an area where a lawyer's conduct may not be inconsonance with the canons of the moral code but he is not subject to disciplinary action because his misbehavior or deviation from the path of rectitude is not glaringly scandalous. It is in connection with a lawyer's behavior to the opposite sex

45 where the question of immorality usually arises. Whether a lawyer's sexual congress with a woman not his wife or without the benefit of marriage should be characterized as "grossly immoral conduct," will depend on the surrounding circumstances. This Court in a decision rendered in 1925, when old-fashioned morality still prevailed, observed that "the legislator well knows the frailty of the flesh and the ease with which a man, whose sense of dignity, honor and morality is not well cultivated, falls into temptation when alone with one of the fair sex toward whom he feels himself attracted. An occasion is so inducive to sin or crime that the saying "A fair booty makes many a thief" or "An open door may tempt a saint" has become general." (People vs. De la Cruz, 48 Phil. 533, 535). Disbarment of a lawyer for grossly immoral conduct is illustrated in the following cases: (1) Where lawyer Arturo P. Lopez succeeded in having carnal knowledge of Virginia C. Almirez, under promise of marriage, which he refused to fulfill, although they had already a marriage license and despite the birth of a child in consequence of their sexual intercourse; he married another woman and during Virginia's pregnancy, Lopez urged her to take pills to hasten the flow of her menstruation and he tried to convince her to have an abortion to which she did not agree. (Almirez vs. Lopez, Administrative Case No. 481, February 28, 1969, 27 SCRA 169. See Sarmiento vs. Cui, 100 Phil. 1102). (2) Where lawyer Francisco Agustin made Anita Cabrera believe that they were married before Leoncio V. Aglubat in the City Hall of Manila, and, after such fake marriage, they cohabited and she later give birth to their child (Cabrera vs. Agustin, 106 Phil. 256). (3) Where lawyer Jesus B. Toledo abandoned his lawful wife and cohabited with another women who had borne him a child (Toledo vs. Toledo, 117 Phil. 768. As to disbarment for contracting a bigamous marriage, see Villasanta vs. Peralta, 101 Phil. 313). (4) The conduct of Abelardo Simbol in making a dupe of Concepcion Bolivar by living on her bounty and allowing her to spend for his schooling and other personal necessities, while dangling before her the mirage of a marriage, marrying another girl as soon as he had finished his studies, keeping his marriage a secret while continuing to demand money from the complainant, and trying to sponge on her and persuade her to resume their broken relationship after the latter's discovery of his perfidy are indicative of a character not worthy of a member of the bar (Bolivar vs. Simbol, 123 Phil. 450). (5) Where Flora Quingwa, a public school teacher, who was engaged to lawyer Armando Puno, was prevailed upon by him to have sexual congress with him inside a hotel by telling her that it was alright to have sexual intercourse because, anyway, they were going to get married. She used to give Puno money upon his request. After she became pregnant and gave birth to a baby boy, Puno refused to marry her. (Quingwa vs. Puno, Administrative Case No. 389, February 28, 1967, 19 SCRA 439). (6) Where lawyer Anacleto Aspiras, a married man, misrepresenting that he was single and making a promise of marriage, succeeded in having sexual intercourse with. Josefina Mortel. Aspiras faked a marriage between Josefina and his own son Cesar. Aspiras wrote to Josefina: "You are alone in my life till the end of my years in this world. I will bring you along with me before the altar of matrimony." "Through thick and thin, for better or for worse, in life or in death, my Josephine you will always be the first, middle and the last in my life." (Mortel vs. Aspiras, 100 Phil. 586). (7) Where lawyer Ariston Oblena, who had been having adulterous relations for fifteen years with Briccia Angeles, a married woman separated from her husband, seduced her eighteen-year-old niece who became pregnant and begot a child. (Royong vs. Oblena, 117 Phil. 865).

46 The instant case can easily be differentiated from the foregoing cases. This case is similar to the case of Soberano vs. Villanueva, 116 Phil. 1206, where lawyer Eugenio V. Villanueva had sexual relations with Mercedes H. Soberano before his admission to the bar in 1954. They indulged in frequent sexual intercourse. She wrote to him in 1950 and 1951 several letters making reference to their trysts in hotels. On letter in 1951 contain expressions of such a highly sensual, tantalizing and vulgar nature as to render them unquotable and to impart the firm conviction that, because of the close intimacy between the complainant and the respondent, she felt no restraint whatsoever in writing to him with impudicity. According to the complainant, two children were born as a consequence of her long intimacy with the respondent. In 1955, she filed a complaint for disbarment against Villanueva. This Court found that respondent's refusal to marry the complainant was not so corrupt nor unprincipled as to warrant disbarment. (See Montana vs. Ruado, Administrative Case No. 507, February 24, 1975, 62 SCRA 382; Reyes vs. Wong, Administrative Case No. 547, January 29, 1975, 63 SCRA 667, Viojan vs. Duran, 114 Phil. 322; Abaigar vs. Paz, Administrative Case No. 997, September 10, 1979,93 SCRA 91). Considering the facts of this case and the aforecited precedents, the complaint for disbarment against the respondent is hereby dismissed. SO ORDERED. Barredo, (Chairman) Concepcion, Jr., Fernandez and Guerrero, JJ., concur. Abad Santos and de Castro, JJ., are on leave. Fernandez and Guerrero JJ., were designated to sit in the Second Division.

47 Republic of the Philippines SUPREME COURT Manila EN BANC A.C. No. 350 August 7, 1959

In re: DALMACIO DE LOS ANGELES, respondent. Office of the Solicitor General Edilberto Barot and Solicitor Emerito M. Salva for the Government. Dalmacio de los Angeles and Luis F. Gabinete for respondent. BAUTISTA ANGELO, J.: Atty. Dalmacio de los Angeles was convicted of the crime of attempted bribery in a final decision rendered by the Court of Appeals and was sentenced to two (2) years, four (40 months, and one (1) day of destierro, and to pay a fine of P2,300, with subsidiary destierro in case of insolvency (CA-G.R. No. 11411-R), and under section 1, Rule 128, of the Rules of Court, he was required to show cause why he should not be disbarred from the practice of his profession. In his written explanation he appealed to the sympathy and mercy of this Court considering that he has six children to support the eldest being 16 years old and the youngest 4 years who will bear the stigma of dishonor if disciplinary action be taken against him. He made manifest to this Court that if he ever committed what is attributed to him, it was merely due to an error of judgment which he honestly and sincerely deplores. Under section 25, Rule 127, a member of the bar may be removed from his office as attorney if he is convicted of a crime involving moral turpitude the reason behind this rule being that the continued possession of a good moral character is a requisite condition for the rightful continuance of the lawyer in the practice of law with the result that the loss of such qualification justifies his disbarment (Mortel vs. Aspiras 100 Phil., 586; 53 Off. Gaz., No. 3, 628). And since bribery is admittedly a felony involving moral turpitude (7 C.J.S., p. 736; 5 Am. Jur. p. 428), this Court, much as it sympathizes with the plight of respondent, is constrained to decree his disbarment as ordained by section 25 of Rule 127. It is therefore ordered that respondent be removed from his office as attorney and that his name be stricken out from the Roll of Attorneys. So ordered. Paras, C.J., Bengzon, Padilla, Montemayor, Labrador, Concepcion, Endencia and Barrera, JJ., concur.

The Lawphil Project - Arellano Law Foundation

48 Republic of the Philippines SUPREME COURT Manila EN BANC December 7, 1920 In re CARLOS S. BASA Pedro Guevara for respondent. Attorney-General Feria for the Government. MALCOLM, J.: The Attorney-General asks that an order issue for the disbarment of Attorney Carlos S. Basa. Carlos S. Basa is a young man about 29 years of age, admitted to the bars of California and the Philippine Islands. Recently he was charged in the Court of Fist Instance of the city of Manila with the crime of abduction with consent, was found guilt in a decision rendered by the Honorable M.V. del Rosario, Judge of First Instance, and was sentenced to be imprisoned for a period of two years, eleven months and eleven days of prision correccional. On appeal, this decision was affirmed in a judgment handed down by the second division of the Supreme Court. 1 The Code of Civil Procedure, section 21, provides that "A member of the bar may be removed or suspended from his office of lawyer by the Supreme Court by reason of his conviction of a crime involving moral turpitude . . ." The sole question presented, therefore, is whether the crime of abduction with consent, as punished by article 446 of the Penal Code, involves moral turpitude. "Moral turpitude," it has been said, "includes everything which is done contrary to justice, honesty, modesty, or good morals." (Bouvier's Law Dictionary, cited by numerous courts.) Although no decision can be found which has decided the exact question, it cannot admit of doubt that crimes of this character involve moral turpitude. The inherent nature of the act is such that it is against good morals and the accepted rule of right conduct. (In re Hopkins [1909], 54 Wash., 569; Pollard vs. Lyon [1875], 91 U.S., 225; 5 Ops. Atty.-Gen. P. I., 46, 185; decisions of the Supreme Court of Spain of November 30, 1876 and June 15, 1895.) When we come next, as we must, to determine the exact action which should be taken by the court, we do so regretfully and reluctantly. On the one hand, the violation of the criminal law by the respondent attorney cannot be lightly passed over. On the other hand, we are willing to strain the limits of our compassion to the uttermost in order that so promising a career may not be utterly ruined. It is the order of the court that beginning with the day when Carlos S. Basa shall be discharged from prison, he be suspended from his office of lawyer for one year. So ordered.lawphi1.net Mapa, C.J., Araullo, Street, Avancea and Villamor, JJ., concur. Footnotes 1 R. G. No. 15398, August 10, 1920, not published.

49 Republic of the Philippines SUPREME COURT Manila EN BANC A.C. No. 439 April 12, 1961

LEDESMA DE JESUS-PARAS, petitioner, vs. QUINCIANO VAILOCES, respondent. BAUTISTA ANGELO, J.: This concerns the disbarment of Quinciano Vailoces as member of the Philippine bar. It appears that as member of the bar and in his Capacity as a notary public, Vailoces, on December 14, 1950, acknowledged the execution of a document purporting to be the last will and testament of one Tarcila Visitacion de Jesus. Presented for probate before the Court of First Instance of Negros Oriental, the will was impugned by her surviving spouse and daughter. Consequently the probate court, finding that the will was a forgery, rendered decision denying probate to the will. This decision e final. On the basis of this decision a criminal action for falsification of public document was filed against Vailoces and the three attesting witnesses to the will before the Court of First Instance of Negros Oriental where after trial, they were found guilty and convicted On appeal, the Court of Appeals affirmed the decision with regard to Vailocess but modified it with record to his co-accused. As finally adjudged, Vailoces was found guilty beyond reasonable doubt of the crime of falsification of public document defined and penalized in Article 171 of the Revised Penal Code and as sentenced to suffer an indeterminate Penalty ranging from 2 years, 4 months and 1 day of prision correccional as minimum, to 8 years and 1 day of prison mayor as maximum, with the accessories of the law, finest and costs. This sentence having become final, Vailoces began serving it in the insular penitentiary. As a consequence, the offended party instituted the present disbarment proceedings. In his answer, respondent not only disputes the judgment of conviction rendered against him in the criminal case but contends that the same is based on insufficient and inconclusive evidence, the charge being merely motivated by sheer vindictiveness, malice and spite on the part of herein complainant, and that to give course to this proceeding would be tantamount to placing him in double jeopardy. He pleads that the complaint be dismissed. Under Section 25, Rule 127, of the Rules of Court, a member of the bar may be removed or suspended from his office as attorney if it appears that he has been convicted of a crime involving moral turpitude. Moral turpitude, as used in this section, includes any act deemed contrary to justice, honesty or good morals.1 Among the examples given of crimes of this nature by former Chief Justice Moran are the crime of seduction and the crime of concubinage.2 The crime of which respondent was convicted is falsification of public document, which is indeed of this nature, for the act is clearly contrary to justice, honesty and good morals. Hence, such crime involves moral turpitude. Indeed, it is well-settled that "embezzlement, forgery, robbery, and swindling are crimes which denote moral turpitude and, as a general rule, all crimes of which fraud is an element are looked on as involving moral turpitude" (58 C.J.S., 1206). It appearing that respondent has been found guilty and convicted of a crime involving moral turpitude it is clear that he rendered himself amenable to disbarment under Section 25, Rule 127, of our Rules of

50 Court. It is futile on his part, much as we sympathize with him, to dispute now the sufficiency of his conviction, for this is a matter which we cannot now look into. That is now a closed chapter insofar as this proceeding is concerned. The only issue with which we are concerned is that he was found guilty and convicted by a final judgment of a crime involving moral turpitude. As this Court well said: The review of respondent's conviction no longer rests upon us. The judgment not only has become final but has been executed. No elaborate argument is necessary to hold the respondent unworthy of the privilege bestowed on him as a member of the bar. Suffice it to say that, by his conviction, the respondent has proved himself unfit to protect the administration of justice. (In the Matter of Disbarment Proceedings against Narciso N. Jaramillo, Adm. Case No. 229, April 30, 1957). The plea of respondent that to disbar him now after his conviction of a crime which resulted in the deprivation of his liberty and of his office as Justice of the Peace of Bais, Negros Oriental would be tantamount to placing him in double jeopardy is untenable, for such defense can only be availed of when he is placed in the predicament of being prosecuted for the same offense, or for any attempt to commit the same or frustration thereof, or for any offense necessarily included therein, within the meaning of Section 9, Rule 113. Such is not the case here. The disbarment of an attorney does not partake of a criminal proceeding. Rather, it is intended "to protect the court and the public from the misconduct of officers of the court" (In re Montagne and Dominguez, 3 Phil. 588), and its purpose is "to protect the administration of justice by requiring that those who exercise this important function shall be competent, honorable and reliable; men in whom courts and clients may repose confidence" (In repose confidence"(In re McDougall, 3 Phil. 77). WHEREFORE, respondent is hereby removed from his office as attorney and, to this effect, our Clerk of Court is enjoined to erase his name from the roll of attorneys. Bengzon, C.J., Padilla, Labrador, Concepcion, Reyes, J.B.L., Barrera and Dizon, JJ., concur. Footnotes
1

In re Basa, 41 Phil., 275 In re Basa, 60 Phil., 915

51 Republic of the Philippines SUPREME COURT Manila EN BANC November 16, 1934 In re JUAN C. ISADA, petitioner, Mariano Ezpeleta for respondent. Office of the Solicitor General Hilado for the Government.

MALCOLM, J.: Juan C. Isada, a member of the Philippine bar, was convicted of the crime of concubinage and is now serving his sentence in Bilibid Prison. The Code of Civil Procedure, in its section 21, provides that a member of the bar may be removed or suspended from his office of lawyer by the Supreme Court by reason of his conviction of a crime involving moral turpitude. It is held that the crime of concubinage involves moral turpitude. (In re Basa [1920], 41 Phil., 275.) It is the order of the court that beginning with the day when Juan C. Isada shall be discharged from prison, he be suspended from his office of lawyer for one year.1awphil.net Avancea, C.J., Street, Villa-Real, Abad Santos, Hull, Vickers, Imperial, Butte, Goddard, and Diaz, JJ., concur.

52 EN BANC

[A.C. No. 3405. June 29, 1998]

JULIETA B. NARAG, complainant, vs. ATTY. DOMINADOR M. NARAG, respondent. DECISION PER CURIAM: Good moral character is a continuing qualification required of every member of the bar. Thus, when a lawyer fails to meet the exacting standard of moral integrity, the Supreme Court may withdraw his or her privilege to practice law. On November 13, 1989, Mrs. Julieta B. Narag filed an administrative complainti[1] for disbarment against her husband, Atty. Dominador M. Narag, whom she accused of having violated Canons 1 and 6, Rule 1.01 of the Code of Ethics for Lawyers.ii[2] The complainant narrated: The St. Louis College of Tuguegarao engaged the services of Atty. Dominador M. Narag in the early seventies as a full-time college instructor in the College of Arts and Sciences and as a professor in the Graduate School. In 1984, Ms. Gina Espita, 17 years old and a first year college student, enrolled in subjects handled by Atty. Narag. Exerting his influence as her teacher, and as a prominent member of the legal profession and then member of the Sangguniang Bayan of Tuguegarao, Atty. Narag courted Ms. Espita, gradually lessening her resistance until the student acceded to his wishes. They then maintained an illicit relationship known in various circles in the community, but which they managed to keep from me. It therefore came as a terrible embar[r]assment to me, with unspeakable grief and pain when my husband abandoned us, his family, to live with Ms. Espita, in utterly scandalous circumstances. It appears that Atty. Narag used his power and influence as a member of the Sangguniang Panlalawigan of Cagayan to cause the employment of Ms. Espita at the Department of Trade and Industry Central Office at Makati, Metro Manila. Out of gratitude perhaps, for this gesture, Ms. Espita agreed to live with Atty. Narag, her sense of right[e]ousness and morals completely corrupted by a member of the Bar. It is now a common knowledge in the community that Atty. Dominador M. Narag has abandoned us, his family, to live with a 22-year-old woman, who was his former student in the tertiary level[.]iii[3] This Court, in a Resolution dated December 18, 1989, referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.iv[4] On June 26, 1990, the office of then Chief Justice Marcelo B. Fernan received from complainant another letter seeking the dismissal of the administrative complaint. She alleged therein that (1) she fabricated the allegations in her complaint to humiliate and spite her husband; (2) all the love letters between the respondent and Gina Espita were forgeries; and (3) she was suffering from emotional confusion arising from extreme jealousy. The truth, she stated, was that her husband had remained a faithful and responsible family man. She further asserted that he had neither entered into an amorous

53 relationship with one Gina Espita nor abandoned his family.v[5] Supporting her letter were an Affidavit of Desistancevi[6] and a Motion to Dismiss,vii[7] attached as Annexes A and B, which she filed before the IBP commission on bar discipline.viii[8] In a Decision dated October 8, 1991, the IBP Board of Governors ix[9] dismissed the complaint of Mrs. Narag for failure to prosecute.x[10] The case took an unexpected turn when, on November 25, 1991, this Courtxi[11] received another letterxii[12] from the complainant, with her seven childrenxiii[13] as co-signatories, again appealing for the disbarment of her husband. She explained that she had earlier dropped the case against him because of his continuous threats against her.xiv[14] In his Comment on the complainants letter of November 11, 1991, filed in compliance with this Courts Resolution issued on July 6, 1992,xv[15] respondent prayed that the decision of the Board of Governors be affirmed. Denying that he had threatened, harassed or intimidated his wife, he alleged that she had voluntarily executed her Affidavit of Desistancexvi[16] and Motion to Dismiss,xvii[17] even appearing before the investigating officer, Commissioner Racela, to testify under oath that she prepared the Motion to Dismiss and Affidavit of Desistance on her own free will and affirmed the contents thereof. In addition, he professed his love for his wife and his children and denied abandoning his family to live with his paramour. However, he described his wife as a person emotionally disturbed, viz.: What is pitiable here is the fact that Complainant is an incurably jealous and possessive woman, and every time the streak of jealousy rears its head, she fires off letters or complaints against her husband in every conceivable forum, all without basis, and purely on impulse, just to satisfy the consuming demands of her loving jealousy. Then, as is her nature, a few hours afterwards, when her jealousy cools off, she repents and feels sorry for her acts against the Respondent. Thus, when she wrote the Letter of November 11, 1991, she was then in the grips of one of her bouts of jealousy.xviii[18] On August 24, 1992, this Court issued another Resolution referring the Comment of respondent to the IBP.xix[19] In the hearing before IBP Commissioner Plaridel C. Jose, respondent alleged the following:xx[20] 2. Your Respondent comes from very poor parents who have left him not even a square meter of land, but gave him the best legacy in life: a purposeful and meaningful education. Complainant comes from what she claims to be very rich parents who value material possession more than education and the higher and nobler aspirations in life. Complainant abhors the poor. 3. Your Respondent has a loving upbringing, nurtured in the gentle ways of love, forgiveness, humility, and concern for the poor. Complainant was reared and raised in an entirely different environment. Her value system is the very opposite. 4. Your Respondent loves his family very dearly, and has done all he could in thirtyeight (38) years of marriage to protect and preserve his family. He gave his family sustenance, a comfortable home, love, education, companionship, and most of all, a good and respected name. He was always gentle and compassionate to his wife and children. Even in the most trying times, he remained calm and never inflicted violence on them. His children are all now fullfledged professionals, mature, and gainfully employed. x x x xxx xxx xxx

Your Respondent subscribes to the sanctity of marriage as a social institution. On the other hand, consumed by insane and unbearable jealousy, Complainant has been systematically and unceasingly destroying the very foundations of their marriage and their family. Their marriage has become a torture chamber in which Your Respondent has been

54 incessantly BEATEN, BATTERED, BRUTALIZED, TORTURED, ABUSED, and HUMILIATED, physically, mentally, and emotionally, by the Complainant, in public and at home. Their marriage has become a nightmare. For thirty-eight years, your Respondent suffered in silence and bore the pain of his misfortune with dignity and with almost infinite patience, if only to preserve their family and their marriage. But this is not to be. The Complainant never mellowed and never became gentl[e], loving, and understanding. In fact, she became more fierce and predatory. Hence, at this point in time, the light at the tunnel for Your Respondent does not seem in sight. The darkness continues to shroud the marital and familial landscape. Your Respondent has to undergo a catharsis, a liberation from enslavement. Paraphrasing Dorfman in Death and the Maiden, can the torturer and the tortured co-exist and live together? Hence, faced with an absolutely uncomprehending and uncompromising mind whose only obsession now is to destroy, destroy, and destroy, Your Respondent, with perpetual regret and with great sorrow, filed a Petition for Annulment of Marriage, Spl. Proc. No. 566, RTC, Branch III, Tuguegarao, Cagayan. x x x. 5. Complainant is a violent husband-beater, vitriolic and unbending. But your Respondent never revealed these destructive qualities to other people. He preserved the good name and dignity of his wife. This is in compliance with the marital vow to love, honor or obey your spouse, for better or for worse, in sickness and in health. . . Even in this case, Your Respondent never revealed anything derogatory to his wife. It is only now that he is constrained to reveal all these things to defend himself. On the other hand, for no reason at all, except a jealous rage, Complainant tells everyone, everywhere, that her husband is worthless, good-for-nothing, evil and immoral. She goes to colleges and universities, professional organizations, religious societies, and all other sectors of the community to tell them how evil, bad and immoral her husband is. She tells them not to hire him as professor, as Counsel, or any other capacity because her husband is evil, bad, and immoral. Is this love? Since when did love become an instrument to destroy a mans dearest possession in life - his good name, reputation and dignity? Because of Complainants virulent disinformation campaign against her husband, employing every unethical and immoral means to attain his ends, Your Respondent has been irreparably and irreversibly disgraced, shamed, and humiliated. Your Respondent is not a scandalous man. It is he who has been mercilessly scandalized and crucified by the Complainant.xxi[21] To prove the alleged propensity of his wife to file false charges, respondent presented as evidence the following list of the complaints she had filed against him and Gina Espita: 3.1 Complaint for Immorality/Neglect of Duty x x x 3.2 Complaint for Immorality/Neglect of Duty, DILG, Adm. Case No. P-5-90. x x x 3.3 Complaint for Concubinage. Provincial Prosecutors Office of Cagayan. I.S No. 89114. x x x 3.4 Complaint for Anti-Graft and Corrupt Practices and concubinage. OMBUDSMAN Case No. 1-92-0083. x x x 3.5 Complaint for Civil Support. RTC, Tuguegarao, Civil Case No. 4061. DISMISSED. 3.6 Complaint for Concubinage. Provincial Prosecutors Office of Cagayan. I.S. No. 92109. DISMISSED. (x x x). Complainant filed Motion for Reconsideration. DENIED. (x x x). 3.7 Complaint for Disbarment (x x x) with S[upreme] C[ourt]. Withdrawn (x x x).

55 DISMISSED by IBP Board of Governors (x x x). Re-instituted (x x x). 3.8 Complaint for Disbarment, again (x x x). Adm. Case No. 3405. Pending. 3.9 Complaint for Concubinage, again (x x x). Third MCTC, Tumauini, Isabela. Pending. x x xxxii[22] In his desperate effort to exculpate himself, he averred: I. That all the alleged love letters and envelopes (x x x), picture (x x x) are inadmissible in evidence as enunciated by the Supreme Court in Cecilia Zulueta vs. Court of Appeals, et. al., G.R. No. 107383, February 20, 1996. (x x x). xxx xxx xxx

II. That respondent is totally innocent of the charges: He never courted Gina Espita in the Saint Louis College of Tuguegarao. He never caused the employment of said woman in the DTI. He never had or is having any illicit relationship with her anywhere, at any time. He never lived with her as husband and wife anywhere at any time, be it in Centro Tumauini or any of its barangays, or in any other place. He never begot a child or children with her. Finally, respondent submits that all the other allegations of Mrs. Narag are false and fabricated, x x x xxx xxx xxx

III. Respondent never abandoned his family[.] Mrs. Narag and her two sons forcibly drove respondent Narag out of the conjugal home. After that, Atty. Narag tried to return to the conjugal home many times with the help of mutual friends to save the marriage and the family from collapse. He tried several times to reconcile with Mrs. Narag. In fact, in one of the hearings of the disbarment case, he offered to return home and to reconcile with Mrs. Narag. But Mrs. Narag refused all these efforts of respondent Narag. x x x IV. Complainant Julieta B. Narag is an unbearably jealous, violent, vindictive, scandalous, virulent and merciless wife since the beginning of the marriage, who incessantly beat, battered, brutalized, tortured, abuse[d], scandalized, and humiliated respondent Atty. Narag, physically, mentally, emotionally, and psychologically, x x x. V. Complainant Julieta Narags claim in her counter-manifestation dated March 28, 1996, to the effect that the affidavit of Dominador B. Narag, Jr., dated February 27, 1996 was obtained through force and intimidation, is not true. Dominador, Jr., executed his affidavit freely, voluntarily, and absolutely without force or intimidation, as shown by the transcript of stenographic notes of the testimonies of Respondent Atty. Narag and Tuguegarao MTC Judge Dominador Garcia during the trial of Criminal Case No. 12439, People vs. Dominador M. Narag, et. al., before the Tuguegarao MTC on May 3, 1996. x x x. xxx xxx xxx

VI. Respondent Atty. Narag is now an old man - a senior citizen of 63 years - sickly, abandoned, disgraced, weakened and debilitated by progressively degenerative gout and arthritis, and hardly able to earn his own keep. His very physical, medical, psychological, and economic conditions render him unfit and unable to do the things attributed to him by the complainant. Please see the attached medical certificates, x x x, among many other similar certificates touching on the same ailments. Respondent is also suffering from hypertension.xxiii[23] On July 18, 1997, the investigating officer submitted his report,xxiv[24] recommending the indefinite suspension of Atty. Narag from the practice of law. The material portions of said report read as follows:

56 Culled from the voluminous documentary and testimonial evidence submitted by the contending parties, two (2) issues are relevant for the disposition of the case, namely: a) Whether there was indeed a commission of alleged abandonment of respondents own family and [whether he was] living with his paramour, Gina Espita; b) Whether the denial under oath that his illegitimate children with Gina Espita (Aurelle Dominic and Kyle Dominador) as appearing on paragraph 1(g) of respondents Comment vis-a-vis his handwritten love letters, the due execution and contents of which, although he objected to their admissibility for being allegedly forgeries, were never denied by him on the witness stand much less presented and offered proof to support otherwise. Except for the testimonies of respondents witnesses whose testimonies tend to depict the complaining wife, Mrs. Narag, as an incurably jealous wife and possessive woman suffering everytime with streaks of jealousy, respondent did not present himself on the witness stand to testify and be cross-examined on his sworn comment; much less did he present his alleged paramour, Gina Espita, to disprove the adulterous relationship between him and their having begotten their illegitimate children, namely: Aurelle Dominic N. Espita and Kyle Dominador N. Espita. Worse, respondents denial that he is the father of the two is a ground for disciplinary sanction (Morcayda v. Naz, 125 SCRA 467). Viewed from all the evidence presented, we find the respondent subject to disciplinary action as a member of the legal profession.xxv[25] In its Resolutionxxvi[26] issued on August 23, 1997, the IBP adopted and approved the investigating commissioners recommendation for the indefinite suspension of the respondent.xxvii[27] Subsequently, the complainant sought the disbarment of her husband in a Manifestation/Comment she filed on October 20, 1997. The IBP granted this stiffer penalty and, in its Resolution dated November 30, 1997, denied respondents Motion for Reconsideration. After a careful scrutiny of the records of the proceedings and the evidence presented by the parties, we find that the conduct of respondent warrants the imposition of the penalty of disbarment. The Code of Professional Responsibility provides: Rule 1.01-- A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. CANON 7-A lawyer shall at all times uphold the integrity and dignity of the legal profession, and support the activities of the Integrated Bar. Rule 7.03-- 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. Thus, good moral character is not only a condition precedentxxviii[28] to the practice of law, but a continuing qualification for all members of the bar. Hence, when a lawyer is found guilty of gross immoral conduct, he may be suspended or disbarred.xxix[29] 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. xxx[30] Furthermore, such conduct must not only be immoral, but grossly immoral. That is, it must be so corrupt as to constitute a criminal act or so unprincipled as to be reprehensible to a high degreexxxi[31] or committed under such scandalous or revolting circumstances as to shock the common sense of decency.xxxii[32]

57 We explained in Barrientos vs. Daarolxxxiii[33] that, as officers of the court, lawyers must not only in fact be of good moral character but must also be seen to be of good moral character and leading lives in accordance with the highest moral standards of the community. More specifically, a member of the Bar and officer of the court is not only required to refrain from adulterous relationships or the keeping of mistresses but must also so behave himself as to avoid scandalizing the public by creating the belief that he is flouting those moral standards. Respondent Narag is accused of gross immorality for abandoning his family in order to live with Gina Espita. The burden of proof rests upon the complainant, and the Court will exercise its disciplinary power only if she establishes her case by clear, convincing and satisfactory evidence.xxxiv[34] Presented by complainant as witnesses, aside from herself,xxxv[35] were: Charlie Espita,xxxvi[36] Magdalena Bautista,xxxvii[37] Bienvenido Eugenio,xxxviii[38] Alice Carag,xxxix[39] Dr. Jervis B. Narag,xl[40] Dominador Narag, Jr.,xli[41] and Nieves F. Reyes.xlii[42] Charlie Espita, brother of the alleged paramour Gina Espita, corroborated complainants charge against respondent in these categorical statements he gave to the investigating officer: Q Mr. Witness, do you know Atty. Narag? A Q A Yes, Your Honor, he is the live-in partner of my sister, Gina Espita. If Atty. Narag is here, can you point [to] him? Yes, sir. (Witness pointed to the respondent, Atty. Dominador Narag) Q Why do you know Atty. Narag?

ATTY. NARAG: Already answered. He said I am the live-in partner. CONTINUATION OF THE DIRECT A Because he is the live-in partner of my sister and that they are now living together as husband and wife and that they already have two children, Aurelle Dominic and Kyle Dominador. xxx xxx x x x xliii[43]

During cross-examination conducted by the respondent himself, Charlie Espita repeated his account that his sister Gina was living with the respondent, with whom she had two children: Q Mr. Espita, you claim that Atty. Narag is now living with your sister as husband and wife. You claim that? A Q A Yes, sir. Why do you say that? Because at present you are living together as husband and wife and you have already two children and I know that that is really an immoral act which you cannot just allow me to follow since my moral values dont allow me that my sister is living with a married man like you. How do you know that Atty. Narag is living with your sister? Did you see them in the house? Yes, si[r]. xxx Q xxx xxx

Q A

You said also that Atty. Narag and your sister have two children, Aurelle Dominic and Kyle

58 Dominador, is it not? A Q A Yes, sir. How do you know that they are the children of Atty. Narag? Because you are staying together in that house and you have left your family.xliv[44]

In addition, Charlie Espita admitted (1) that it was he who handed to Mrs. Narag the love letters respondent had sent to his sister, and (2) that Atty. Narag tried to dissuade him from appearing at the disbarment proceedings.xlv[45] Witness Bienvenido Eugenio strengthened the testimony of Charlie Espita in this wise: Q Mr. Witness, do you know the respondent in this case? A Q A I know him very well, sir. Could you please tell us why do you know him? Because he was always going to the house of my son-in-law by the name of Charlie Espita. xxx Q A Q A Q A xxx xxx

Mr. Eugenio, do you know the residence of Atty. Dominador M. Narag? At that time, he [was] residing in the house of Reynaldo Angubong, sir. And this is located where? Centro Tamauini, Isabela, sir. And you specifically, categorically state under oath that this is the residence of Atty. Narag? Yes, sir. xxx xxx xxx

Q A

And under oath this is where Atty. Narag and Gina Espita are allegedly living as husband and wife, is it not? Yes, sir.xlvi[46]

Witness Nieves Reyes, a neighbor and friend of the estranged couple, testified that she learned from the Narag children -- Randy, Bong and Rowena -- that their father left his family, that she and her husband prodded the complainant to accept the respondent back, that the Narag couple again separated when the respondent went back to his woman, and that Atty. Narag had maltreated his wife.xlvii[47] On the strength of the testimony of her witnesses, the complainant was able to establish that respondent abandoned his family and lived with another woman. Absent any evidence showing that these witnesses had an ill motive to testify falsely against the respondent, their testimonies are deemed worthy of belief. Further, the complainant presented as evidence the love letters that respondent had sent to Gina. In these letters, respondent clearly manifested his love for Gina and her two children, whom he acknowledged as his own. In addition, complainant also submitted as evidence the cards that she herself had received from him. Guided by the rule that handwriting may be proved through a comparison of one set of writings with those admitted or treated by the respondent as genuine, we affirm that the two sets of evidence were written by one and the same person.xlviii[48] Besides, respondent did not present any evidence to prove that the love letters were not really written by him; he merely denied that he wrote them.

59 While the burden of proof is upon the complainant, respondent has the duty not only to himself but also to the court to show that he is morally fit to remain a member of the bar. Mere denial does not suffice. Thus, when his moral character is assailed, such that his right to continue practicing his cherished profession is imperiled, he must meet the charges squarely and present evidence, to the satisfaction of the investigating body and this Court, that he is morally fit to have his name in the Roll of Attorneys.xlix[49] This he failed to do. Respondent adamantly denies abandoning his family to live with Gina Espita. At the same time, he depicts his wife as a violent husband-beater, vitriolic and unbending, and as an insanely and pathologically jealous woman, whose only obsession was to destroy, destroy and destroy him as shown by her filing of a series of allegedly unfounded charges against him (and Gina Espita). To prove his allegation, he presented ninety-eight (98) pieces of documentary evidencel[50] and ten (10) witnesses.li[51] We note, however, that the testimonies of the witnesses of respondent did not establish the fact that he maintained that moral integrity required by the profession that would render him fit to continue practicing law. Neither did their testimonies destroy the fact, as proven by the complainant, that he had abandoned his family and lived with Gina Espita, with whom he had two children. Some of them testified on matters which they had no actual knowledge of, but merely relied on information from either respondent himself or other people, while others were presented to impeach the good character of his wife. Respondent may have provided well for his family -- they enjoyed a comfortable life and his children finished their education. He may have also established himself as a successful lawyer and a seasoned politician. But these accomplishments are not sufficient to show his moral fitness to continue being a member of the noble profession of law. We remind respondent that parents have not only rights but also duties e.g., to support, educate and instruct their children according to right precepts and good example; and to give them love, companionship and understanding, as well as moral and spiritual guidance.lii[52] As a husband, he is also obliged to live with his wife; to observe mutual love, respect and fidelity; and to render help and support.liii[53] Respondent himself admitted that his work required him to be often away from home. But the evidence shows that he was away not only because of his work; instead, he abandoned his family to live with his paramour, who bore him two children. It would appear, then, that he was hardly in a position to be a good husband or a good father. His children, who grew up mostly under the care of their mother, must have scarcely felt the warmth of their fathers love. Respondents son, Jervis B. Narag, showed his resentment towards his fathers moral frailties in his testimony: Q My question is this, is there any sin so grievous that it cannot be forgiven, is there a fault that is so serious that it is incapable of forgiveness? A That depends upon the sin or fault, sir, but if the sin or fault is with the emotional part of myself, I suppose I cannot forgive a person although I am a God-fearing person, but I h[av]e to give the person a lesson in order for him or her to at least realize his mistakes, sir. xxx COMR. JOSE: I think it sounds like this. Assuming for the sake of argument that your father is the worst, hardened criminal on earth, would you send him to jail and have him disbarred? That is the question. xxx xxx

60 CONTINUATION. A With the reputation that he had removed from us, I suppose he has to be given a lesson. At this point in time, I might just forgive him if he will have to experience all the pains that we have also suffered for quite sometime. Dr. Narag, your father gave you life, his blood runs in your veins, his flesh is your flesh, his bones are your bones and you now disown him because he is the worst man on earth, is that what you are saying. Sort of, sir. You are now telling that as far [as] you are concerned because your father has sinned, you have no more father, am I correct? Long before, sir, I did not feel much from my father even when I was still a kid because my father is not always staying with us at home. So, how can you say that? Yes, he gave me life, why not? But for sure, sir, you did not give me love.liv[54]

A Q A

Another son, Dominador Narag, Jr., narrated before the investigating officer the trauma he went through: Q A In connection with that affidavit, Mr. Witness, which contains the fact that your father is maintaining a paramour, could you please tell this Honorable Commission the effect on you? This has a very strong effect on me and this includes my brothers and sisters, especially my married life, sir. And it also affected my children so much, that I and my wife ha[ve] parted ways. It hurts to say that I and my wife parted ways. This is one reason that affected us. Will you please tell us specifically why you and your wife parted ways? Because my wife wa[s] ashamed of what happened to my family and that she could not face the people, our community, especially because my wife belongs to a well-known family in our community. How about the effect on your brothers and sisters? Please tell us what are those. Well, sir, this has also affected the health of my elder sister because she knows so well that my mother suffered so much and she kept on thinking about my mother. xxx Q A Q A Q A Why did your wife leave you? The truth is because of the things that had happened in our family, Your Honor. In your wifes family? In our family, sir. And what do you mean by that? What I meant by that is my father had an illicit relationship and that my father went to the extent of scolding my wife and calling my wife a puta in provincial government, which my mother-inlaw hated him so much for this, which really affected us. And then my wife knew for a fact that my father has an illicit relationship with Gina Espita, whom he bore two children by the name of Aurelle Dominic and Kyle Dominador, which I could prove and I stand firm to this, Your Honor.lv[55] xxx xxx

Q A

Q A

Although respondent piously claims adherence to the sanctity of marriage, his acts prove otherwise.

61 A husband is not merely a man who has contracted marriage. Rather, he is a partner who has solemnly sworn to love and respect his wife and remain faithful to her until death. We reiterate our ruling in Cordova vs. Cordovalvi[56] The moral delinquency that affects the fitness of a member of the bar to continue as such includes conduct that outrages the generally accepted moral standards of the community, conduct for instance, which makes a mockery of the inviolable social institution of marriage. In Toledo vs. Toledo,lvii[57] the respondent was disbarred from the practice of law, when he abandoned his lawful wife and cohabited with another woman who had borne him a child. Likewise, in Obusan vs. Obusan,lviii[58] the respondent was disbarred after the complainant proved that he had abandoned her and maintained an adulterous relationship with a married woman. This Court declared that respondent failed to maintain the highest degree of morality expected and required of a member of the bar. In the present case, the complainant was able to establish, by clear and convincing evidence, that respondent had breached the high and exacting moral standards set for members of the law profession. As held in Maligsa vs. Cabanting,lix[59] a lawyer may be disbarred for any misconduct, whether in his professional or private capacity, which shows him to be wanting in moral character, in honesty, probity and good demeanor or unworthy to continue as an officer of the court. WHEREFORE, Dominador M. Narag is hereby DISBARRED and his name is ORDERED STRICKEN from the Roll of Attorneys. Let copies of this Decision be in the personal record of Respondent Narag; and furnished to all courts of the land, the Integrated Bar of the Philippines, and the Office of the Bar Confidant. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Martinez, Quisumbing, and Purisima, JJ., concur.

i[1]

See records, Vol. I, pp. 1-2. Attached therein are photocopies of the marriage contract of the couple and of two love letters written by the respondent to his paramour.
ii[2] iii[3] iv[4]

Code of Professional Responsibility. Records, Vol. I, pp. 1-2. Records, Vol. I, p. 11. Records, Vol. II, pp. 13-14. Records, Vol. II, pp. 15-16. Records, Vol. II, pp. 17-18.

v[5]

vi[6]

vii[7]

viii[8]

The Court noted the letter in its Resolution, dated July 30, 1990, and referred the same to the IBP. See records, Vol. II, p. 19.

62
ix[9]

Signatories therein are Numeriano G. Tanopo, Jr., president; Ernesto S. Salunat, Jose Aguila Grapilon, Beda G. Fajardo, Baldomero C. Estenzo, Rene C. Villa and Teodoro D. Nano, Jr., governors of Northern Luzon Region, Southern Luzon Region, Bicolandia Region, Eastern Visayas Region, Western Visayas Region and Eastern Mindanao Region, respectively; Mervyn G. Encanto, executive vice president; and Romeo T. Capulong and Didagen P. Dilangalen, governors of Central Luzon Region and Western Mindanao Region, respectively.
x[10] xi[11]

Records, Vol. III, pp. 34-37. Through the office of then Chief Justice Fernan. Dated November 11, 1991.

xii[12] xiii[13]

The children are Genevieve Narag Bautista, Dominador B. Narag Jr., Randolph B. Narag, Jervis B. Narag, Rowena Narag Addun, Cheryl Rita B. Narag and Christiana B. Narag.
xiv[14] xv[15] xvi[16]

Records, Vol. III, p. 23. The letter was forwarded to the Office of the Bar Confidant on December 2, 1991. Records, Vol. III, pp. 40-42. Records, Vol. II, pp. 15-16. Ibid., pp. 17-18. Ibid., pp. 40-41.

xvii[17]

xviii[18]

xix[19]

Records, Vol. III, p. 44. Compiled Answer/Comment and Counter-Affidavits, records, Vol. II, pp. 1-11. Ibid., pp. 1-3. Ibid., pp. 8-9. Memorandum for the Respondent, pp. 1-6; records, Vol. IV, pp. 299-304. Records, Vol. I, pp. 17-59. Report by Comm. Plaridel C. Jose, pp. 42-43; records, Vol I, pp. 58-59. Ibid., pp. 15-16.

xx[20] xxi[21]

xxii[22] xxiii[23] xxiv[24]

xxv[25] xxvi[26]

xxvii[27]

Notice of Resolution from the IBP Commission on Bar Discipline, Board of Governors, Pasig City, signed by National Secretary Roland B. Inting. A copy of said notice was received by the Office of the Bar Confidant on September 16, 1997. Records, Vol. I, pp. 15-16.
xxviii[28]

2, Rule 138 of the Rules of Court provides: Every applicant for admission as a member of the bar must be x x x of good moral character; and must produce before the Supreme Court satisfactory evidence of good moral character, and that no charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines. (Underscoring supplied)
xxix[29]

27, Rule 138 of the Rules of Court.

th

xxx[30]

7 C.J.S., 14, p. 826; Blacks Law Dictionary, 6 ed., p. 751 citing In re Monaghan, 126 VT, 53m 222 A.2d rd 665, 674; and Philippine Law Dictionary, 3 ed., p. 447, citing Arciga vs. Maniwang, 106 SCRA 594, 594, August 14, 1981.
xxxi[31] xxxii[32]

Reyes vs. Wong, 63 SCRA 667, 673, January 29, 1975. Royong vs. Oblena, 7 SCRA 859, 869-870, April 30, 1963.

63
xxxiii[33]

218 SCRA 30, 40, January 29, 1993, per curiam, citing Tolosa vs. Cargo, 171 SCRA 21, 26, March 8, 1989, per Feliciano, J.
xxxiv[34]

Noriega vs. Sison, 125 SCRA 293, 297-298, October 27, 1983; Santos vs. Dichoso, 84 SCRA 622, 627, August 22, 1989; Adarne vs. Aldaba, 83 SCRA 734, 739, June 27, 1978; Arboleda vs. Gatchalian, 58 SCRA 64, 67, July 23, 1974; and Go vs. Candoy, 21 SCRA 439, 442, October 23, 1967.
xxxv[35] xxxvi[36] xxxvii[37] xxxviii[38] xxxix[39] xl[40] xli[41] xlii[42] xliii[43] xliv[44]

TSN, September 22, 1993, pp. 15-46. Ibid., pp. 28-134. TSN, November 3, 1993, pp. 16-41. Ibid., pp. 42-55.

Ibid., pp. 58-71.

TSN, November 4, 1993, pp. 5-34. Ibid., pp. 35-64. TSN, January 17, 1994, pp. 3-14. TSN, September 22, 1993, pp. 31-32. Ibid., pp. 85-89. Ibid., pp. 39 and 75. TSN, November 3, 1993, pp. 43-44, 47-48 and 51 TSN, January 17, 1994, pp. 6-8 and 11. Section 22, Rule 132 of the Rules of Court.

xlv[45]

xlvi[46] xlvii[47]

xlviii[48]

xlix[49] l[50] li[51]

Delos Reyes vs. Aznar, 179 SCRA 653, 658, November 28, 1989.

See Records, Vol. III, pp. 1-234.

Jude Sales (TSN, April 19, 1994, pp. 3-6); Atty. Virgilio A. Sevandal (TSN, April 19, 1994, pp. 6-16); Juanito H. Comia (TSN, April 19, 1994, pp. 17-24); Alfonso Tumamao (TSN, April 19, 1994, pp. 25-51); Ofelio Pablo (TSN, April 20, 1994, pp. 2-36); Judge Rolando L. Salacup (TSN, May 16, 1994, pp. 2-37); Romeo Calabaquib (TSN, May 17, 1994, pp. 2-21); Remigio Magundayao (TSN, June 7, 1994, pp. 2-6); Fr. Benjamin T. Lasan (TSN, June 7, 1994, pp. 7-19); and Alfonso C. Gorospe (TSN, June 7, 1994, pp. 19-27).
lii[52]

Art. 220, Family Code. See also Art. 356 of the Civil Code and Art. 3 of the Child and Youth Welfare Code (or PD 603).
liii[53]

Art. 68, Family Code. TSN, November 4, 1993, pp. 28-30. TSN, November 4, 1993, pp. 38-39 and 45-46. 179 SCRA 680, 683, November 29, 1989, 7 SCRA 757, April 27, 1963. 128 SCRA 485, April 2, 1984.

liv[54] lv[55] lvi[56] lvii[57]

lviii[58] lix[59]

AC No. 4539, May 14, 1997, pp. 5-6, per curiam.

64

Republic of the Philippines SUPREME COURT Manila EN BANC A.C. No. 6148 February 27, 2004

FLORENCE TEVES MACARRUBO, the Minors JURIS ALEXIS T. MACARRUBO and GABRIEL ENRICO T. MACARRUBO as represented by their Mother/Guardian, FLORENCE TEVES MACARRUBO, complainant, vs. ATTY. EDMUNDO L. MACARRUBO, respondent. DECISION PER CURIAM: Florence Teves Macarrubo (complainant), by herself and on behalf of her two children, filed on June 6, 2000 a verified complaint1 for disbarment against Atty. Edmundo L. Macarubbo (respondent) with the Integrated Bar of the Philippines (IBP), docketed as CBD Case No. 00-734-A, alleging that respondent deceived her into marrying him despite his prior subsisting marriage with a certain Helen Esparza. Detailing the circumstances surrounding respondent's complained act, complainant averred that he started courting her in April 1991, he representing himself as a bachelor; that they eventually contracted marriage which was celebrated on two occasions administered by Rev. Rogelio J. Bolivar, the first on December 18, 19912 in the latter's Manila office, and the second on December 28, 19913 at the Asian Institute of Tourism Hotel in Quezon City; and that although respondent admitted that he was married to Helen Esparza on June 16, 1982, he succeeded in convincing complainant, her family and friends that his previous marriage was void. Complainant further averred that respondent entered into a third marriage with one Josephine T. Constantino; and that he abandoned complainant and their children without providing them any regular support up to the present time, leaving them in precarious living conditions. Complainant submitted documentary evidence consisting of the marriage contract between respondent and Helen Esparza4 and that between her and respondent,5 and photographs6 of their (complainant and respondent) nuptials and of captured moments in their life as a couple and a family. Copy of the complaint could not be immediately served upon respondent owing to the difficulty of locating him.7 Complainant later filed a Manifestation8 before the IBP, furnishing therein respondent's address where he supposedly resided with his third wife Jo T. Constantino-Macarubbo. The IBP Commission on Bar Discipline thereupon thrice9 required respondent to file his Answer. He failed to do so, however, on motion of complainant,10 he was declared in default.11 Complainant was thus allowed to present evidence ex parte. The IBP Investigating Commissioner came out with a Report and Recommendation on January 22, 2001.12 By Resolution of May 26, 2001,13 however, the IBP Board of Governors remanded the case to the Investigating Commissioner to "ensure proper notice or another opportunity to serve notice to the respondent." Subsequently or on September 5, 2001, respondent filed a Manifestation/Ex Parte Motion to Re-Open Proceedings14 which was granted.15

65
By Comment of October 18, 2001,16 respondent denied employing deception in his marriage to complainant, insisting instead that complainant was fully aware of his prior subsisting marriage to Helen Esparza, but that she dragged him against his will to a "sham wedding" to protect her and her family's reputation since she was then three-months pregnant. Respondent submitted in evidence the final and executory October 30, 2000 Decision of Branch IV of the Regional Trial Court (RTC) of Tuguegarao City in Civil Case No. 5617, "Edmundo L. Macarubbo v. Florence J. Teves,"17 declaring his marriage to complainant void ab initio. He drew attention to the trial court's findings on the basis of his evidence which was not controverted, that the marriage was indeed "a sham and make believe" one, "vitiated by fraud, deceit, force and intimidation, and further exacerbated by the existence of a legal impediment" and want of a valid marriage license. Respondent also submitted a certification from the National Statistics Office that complainant's name does not appear in the National Index of Marriages for Bride;18 another certification from the National Statistics Office-Office of Civil Registrar General that it has no record of the December 28, 1991 marriage of complainant and respondent;19 and an attestation from the Office of the Municipal Civil Registrar of Bacoor, Cavite that Marriage License No. 772176221 which was used in complainant and respondent's marriage is not on file in its records.20 Admitting having sired complainant's two children, Juris Alexis and Gabriel Enrico, respondent denied ever abandoning them. In his Supplemental Comment,21 respondent claimed that he left complainant and their two children with her consent after explaining to her that the pain and shame of living in sin and ridicule was unbearable. To refute the charge that he had abandoned complainant and their two children, he presented copies of fully paid educational plans22 for the high school and college education of the children; a Philippine National Bank check dated January 18, 1999 for P22,556.33 representing his payment of the final amortization of his car which has been in complainant's possession since 1997;23 a copy of a petition of complainant in a civil case filed against respondent with the Quezon City RTC, for judicial authorization to sell certain properties of respondent, wherein she admitted that respondent issued three postdated checks in the amount of P2,000.00 each for his children's allowance covering the period October 1999 to December 1999;24 and copy of his August 9, 1999 letter to complainant demanding custody of his children, he having been barred from seeing them, as well as the return of his personal properties in complainant's possession.25 To disprove that he is of depraved moral character, respondent submitted certifications from the Office of the Bar Confidant,26 Office of the Ombudsman,27 Department of Justice,28 and the Philippine National Police in his hometown in Enrile, Cagayan29 that he has no cases of any nature pending with them. And he too submitted letters from the Department of Interior and Local Government30 and the Metro Manila Development Authority31 addressed to him to show that he is a civic-spirited person. Finally, respondent, in his Supplemental Comment, raised the additional defenses that the judicial decree of annulment of his marriage to complainant is res judicata upon the present administrative case; that complainant is in estoppel for admitting her status as mere live-in partner to respondent in her letter to Josephine T. Constantino;32 and that she resorted to forum-shopping in bringing both this administrative action and the civil case with the Quezon City RTC. Stressing that he had always been the victim in his marital relations, respondent invoked the final and executory August 21, 1998 Decision of Branch 158 of the Pasig City RTC in JDRC Case No. 4320, "Edmundo L. Macarubbo v. Helen C. Esparza,"33 declaring his first marriage void on the ground of his wife's psychological incapacity. After hearing during which both complainant and respondent took the witness stand, the Investigating Commissioner rendered a Report and Recommendation34 the dispositive portion of which reads:

66
WHEREFORE, premises considered, it is recommended that respondent Atty. Edmundo L. Macarrubo be SUSPENDED FOR THREE MONTHS for gross misconduct reflecting unfavorably on the moral norms of the profession. Moreover, it must likewise be impressed on respondent that he should comply with the moral and legal obligations incumbent upon him as a father of the children as a result of his relationship with complainant. (Underscoring supplied) The IBP Board of Governors subsequently passed Resolution No. XV-2003-35135 which adopted and approved the Report and Recommendation of the Investigating Commissioner. The final disposition of the present administrative case is now before this Court. It appears that respondent began his legal career in 1986 as Legal Officer of the Department of Education, Culture and Sports after which he became Supervising Civil Service Attorney of the Civil Service Commission.36 He later became an Ombudsman Graft Investigation Officer, then a State Prosecutor of the Department of Justice, before finally bowing out of public service after about 14 years or in July 2000 to engage in private practice.37 The rule that a lawyer may be disciplined or suspended for any misconduct, whether in his professional or private capacity, which shows him to be wanting in moral character, in honesty, in probity and good demeanor, thus rendering him unworthy to continue as an officer of the court38 bears reiterating. Upon the evidence on record, respondent is indeed guilty of gross misconduct in his private affairs which warrant disciplinary action by this Court as the guardian of the purity and integrity of the legal profession. The incontrovertible facts show that while respondent had a subsisting marriage with Helen Esparza with whom he had two children,39 he entered into a second marriage with complainant. While the marriage between complainant and respondent has been annulled by final judgment, this does not cleanse his conduct of every tinge of impropriety. He and complainant started living as husband and wife in December 1991 when his first marriage was still subsisting, as it was only on August 21, 1998 that such first marriage was annulled, rendering him liable for concubinage.40 Such conduct is inconsistent with the good moral character that is required for the continued right to practice law as a member of the Philippine bar.41 It imports moral turpitude and is a public assault upon the basic social institution of marriage.42 Even assuming arguendo that respondent was coerced by complainant to marry her, the duress, by his own admission as the following transcript of his testimony reflects, ceased after their wedding day, respondent having freely cohabited with her and even begot a second child by her. xxx ATTY. PAGUIA [Complainant's Counsel] Q: Are you claiming that the complainant coerced you again to marry her? A: Yes, I was. Q: Did she use a gun to coerce you? A: A lot of people appearing around and a lot of bad mouth from her, threats to sue me and to even kill me by people around. Q: So insofar as you are concerned the complainant committed a crime of coercion against yourself?

67
A: Yes. Q: And is it correct for me to say that you did not file any case before the Prosecutor's Office. A: I reported that matter to the police. COMMISSIONER CONCEPCION Q: In what way did M[s]. Florence Teves coerce you? A: She placed me in a place where she could guard me and she treated (sic) to sue me, destroy my career. And at the time of the marriage she sent people to fetch me from my place to be there. And there are a lot of people with strange faces. ATTY. PAGUIA Q: How many days or hours did this coercion last? A: That's continuing. Q: From what day to what day? A: It's started when she said she was pregnant until the date of the alleged marriage. Q: Can you tell the Honorable Commission who got her pregnant at that time? A: Although there was a carnal knowledge once. Q: Of course you know that the complainant delivered the child after your marriage, is it not? A: Yes, six months after because she was already pregnant three months during that time already. Q: Can you tell the Honorable Commission what is the name of the child was (sic)? A: Juris. I recognized the children. There's no problem about that. I gave them educational plan, I gave them support. Q: After the first child you continued living with the complainant, is it not? A: Intermittently I get out and then she would call pagka't may sakit yong bata so I have to go back. Q: Of course it was your responsibility as father to the child to see the condition of the child? A: Yes, that's why whenever she comes and tells me that the child is sick I go there. Q: After your wedding with the complainant can you tell the Honorable Commission where you resided? COMMISSIONER CONCEPCION Q: When you say where you resided, both of them?

68
ATTY. PAGUIA: Yes, Your Honor. A: In the residence of Florence. ATTY. PAGUIA Q: How long did you live with the complainant after your wedding? A: Intermittently again few months then I get out then when the child is sick I have to visit. COMMISSIONER CONCEPCION Q: When you say intermittently you don't stay there? A: Not permanently. ATTY. PAGUIA Q: How often did you come home to the residence of the complainant? A: Whenever she call that the child is sick. Q: So you live (sic) with her up to what year? A: Intermittently 1995. Q: You mentioned that you have two children with the complainant? A: Yes. Q: Can you remember when your second child with the complainant was born? A: I cannot remember. Q: Do you know how old the second child with the complainant is? A: I guess six or seven. Q: What is his name? A: Mico. Q: Who provided the support for these children from the time they were born up to the present? A: When I was there I gave for their subsistence. Q: Will you please tell the Commission how much was that? A: I buy groceries for them and I gave also for their leisure and for their education. Q: When you gave this support during the intermittently that you had with them?

69
A: Intermittently also. A: Roughly, Compaero, can you tell the Honorable Commission from that time they were born to this time how much you were giving them? A: I cannot compute. COMMISSIONER CONCEPCION Q: What about on a monthly basis, do you recall? A: I cannot compute although when I left with her consent in 1997 I left valuables in the amount of P400,000.00. Q: When you say with her consent, did you tell her that you are leaving? A: Yes, Your Honor, she agreed because I said I can no longer bear living with sin. x x x43 (Emphasis and underscoring supplied) The saying that photographs do not lie could not be any truer in those submitted in evidence by complainant which show a typical happy family with respondent essaying out his role as a husband to complainant and a father to their two kids. Respondent cannot thus take refuge in the earlier mentioned finding in the decision of Tuguegarao City trial court in the annulment case he filed against complainant. The decision, rendered in default of complainant, cannot serve as res judicata on the final resolution of the present case. As this Court held in In re Almacen,44 a disbarment case is sui generis for it is neither purely civil nor purely criminal but is rather an investigation by the Court into the conduct of its officers. Thus, if the acquittal of a lawyer in a criminal action is not determinative of an administrative case against him,45 or if an affidavit of withdrawal of a disbarment case does not affect its course,46 then the judgment of annulment of respondent's marriage does not also exonerate him from a wrongdoing actually committed. So long as the quantum of proof - clear preponderance of evidence - in disciplinary proceedings against members of the bar is met, then liability attaches.47 The disturbing fact that respondent was able to secure the annulment of his first two marriages and is in the process of procuring the annulment of his third bears noting. Contrary to the finding of the Investigating Commissioner, respondent, by his own admission, contracted a third marriage: xxx ATTY. PAGUIA Q: After getting married to the complainant is it a fact that you entered into a third marriage to one Josephine Constantino? A: I think that is . . . Q: I will reform, Your Honor. Do you know a person by the name of Josephine Constantino? A: Yes Q: What relation if any do you have with her?

70
A: I am separated to her since 2000. COMMISSIONER CONCEPCION Q: Were you married to Josephine Constantino? A: Yes, but it's in the process of annulment. x x x48 (Emphasis and underscoring supplied) In both his marriages to his first wife and to complainant, respondent claimed that he was made to enter into the marital union against his will. That claim is an affront to the intelligence of the members of this Court to distinguish fact from fiction, reality from fantasy. It is not easy to believe that a lawyer like respondent could easily be cowered to enter into any marriage. One incident of a "shotgun marriage" is believable, but two such in succession would tax one's credulity. And then, there is a third marriage to Josephine T. Constantino which is again the subject of another annulment case. It would not come as a surprise if in that pending case, he would again put blame on his third wife in order to send the marriage to oblivion. Respondent here has exhibited the vice of entering into multiple marriages and then leaving them behind by the mere expedient of resorting to legal remedies to sever them. The impact of respondent's conduct is incalculable upon his ex-wives as well as the children he had by them, their lives having been dislocated beyond recall. Respondent's assertion that he has not failed to support his children by complainant is not totally supported by the evidence on record. He may have secured educational plans for them and doled out some sums of money in the past, but it appears that he has failed to provide them regular, monthly support. In fact, he admitted that even before he left complainant's residence in 1995, he was only giving intermittent support to his children with her.49 Such pattern of misconduct by respondent undermines the institutions of marriage and family, institutions that this society looks to for the rearing of our children, for the development of values essential to the survival and well-being of our communities, and for the strengthening of our nation as a whole. This must be checked if not stopped. As officers of the court, lawyers must not only in fact be of good moral character but must also be perceived to be of good moral character and must lead a life in accordance with the highest moral standards of the community.50 The moral delinquency that affects the fitness of a member of the bar to continue as such, including that which makes a mockery of the inviolable social institution of marriage,51 outrages the generally accepted moral standards of the community. In sum, respondent has breached the following precepts of the Code of Professional Responsibility: Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. CANON 7 - A lawyer shall at all times uphold the integrity and dignity of the legal profession, and support the activities of the Integrated Bar. Rule 7.03 - A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession. There can then be no other fate that awaits respondent, as a consequence of his grossly immoral conduct, than to be disbarred or suspended from the practice of law.52 The penalty of 3 months suspension recommended by the IBP is, not commensurate to the gravity of his conduct.

71
WHEREFORE, respondent Edmundo L. Macarubbo is found guilty of gross immorality and is hereby DISBARRED from the practice of law. He is likewise ORDERED to show satisfactory evidence to the IBP Commission on Bar Discipline and to this Court that he is supporting or has made provisions for the regular support of his two children by complainant.53 Let respondent's name be stricken off the Roll of Attorneys. SO ORDERED. Davide, Jr., C.J., Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur. Puno, J., on leave. Footnotes

Exhibit "B," Rollo, Vol. 1 at 34-38. Exhibit "D," Rollo, Vol. 1 at 40. Exhibit "E," id at 41. Exhibit "C," id at 39. Exhibits "D" and "E," id. at 40-41. Id. at 42-55.

Vide complainant's letter to the IBP's Commission on Bar Discipline describing the circumstances behind the inability to serve the administrative complaint upon respondent at Rollo, Vol. 1 at 10-11.
8

Id. at 18-19. Id. at 13-14 and 17. Id. at 26. Id. at 28. Investigating Commissioner's Report and Recommendation, Rollo, Vol. 3 at 3. Rollo, Vol. 1 at 56. Id. at 58-60. Vide October 12, 2001 Order by the Investigating Commissioner, Rollo, Vol. 1, at 89. Rollo, Vol. 1 at 90. Rollo, Vol. 2 at 34-37.

10

11

12

13

14

15

16

17

72
18

Exhibit "16," Rollo, Vol. 2 at p. 38. Exhibit "17," id at 39. Exhibit "18," id. at 40. Rollo, Vol. 1 at 108-112. Exhibits "9," "9-c," "9-f," "9-I," Rollo, Vol. 2 at 16, 19, 22 and 25. Exhibit "10," id. at 28. Exhibit "11," id. at 29. Exhibit "12," id. at 30-31. Exhibit "1," Rollo, Vol. 2, at 7. Exhibit "3," id. at 9. Exhibit "4," id. at 10. Exhibit "6," id. at 12. Exhibit "7," id. at 13-14. Exhibit "8," id. at 15. Exhibit "13," id. at 32. Exhibit "19," id. at 42-46. Investigating Commissioner's Report and Recommendation, Rollo, Vol. 3 at 9. Notice of Resolution, Rollo, Vol. 3. Exhibit "5," Rollo, Vol. 2 at 11. Rollo, Vol. 1 at 119. Ducat, Jr. v. Villalon, Jr., 337 SCRA 622 [2000]. TSN, February 15, 2002 at 18.

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

Vide Revised Penal Code, Article 334 where concubinage is committed also by a husband who cohabits with a woman who is not his wife in any other place.
41

Laguitan v. Tinio, 179 SCRA 837 [1989]. Supra. TSN, February 15, 2002 at 32-43.

42

43

73

EN BANC

[A.C. No. 4256. February 13, 2004]

JOVITA BUSTAMANTE-ALEJANDRO, complainant, vs. ATTYS. WARFREDO TOMAS ALEJANDRO and MARICRIS A. VILLARIN, respondents. DECISION
PER CURIAM:

This is an administrative case filed in 1994 by Jovita Bustamante-Alejandro charging respondents Atty. Warfredo Tomas Alejandro and Atty. Maricris A. Villarin with bigamy and concubinage. Complainant alleged that respondent, Atty. Warfredo Tomas Alejandro, is her husband; that they were married on March 3, 1971 at Alicia, Isabela, as evidenced by their Marriage Contract;lix[1] that she bore him three (3) sons, namely, Dino, Eric, and Carlo, born in 1971, 1973, and 1978, respectively, as evidenced by their respective Certificates of Live Birth; lix[2] that respondent abandoned her and their children in 1990 to live with his mistress, respondent Atty. Ma. Cristina Arrieta Villarin,lix[3] at 27-C Masbate St., Quezon City; that respondents have since then been publicly representing themselves as husband and wife; that respondent Atty. Villarin gave birth to Paolo Villarin Alejandro on January 17, 1992 as a result of her immoral and scandalous relationship with complainants husband whom she named as the father of her son in the latters Certificate of Live Birth;lix[4] and, that in said Certificate of Live Birth, respondent Atty. Villarin identified herself as Ma. Cristina V. Alejandro having been married to Atty. Alejandro on May 1, 1990 at Isabela Province. Complainant alleged that she filed this administrative complaint when she learned that her husband has been nominated as a regional trial court judge. She insists that he is not fit to be a judge considering that he, and co-respondent Atty. Villarin, do not even possess the basic integrity to remain as members of the Philippine Bar. We required respondent to comment on the administrative complaint in our Resolution dated July 4, 1994. When copies of our resolution and of the complaint and its annexes addressed to respondent Atty. Alejandro at 27-C Masbate St., Quezon City were returned unserved with notation moved, we required complainant to submit the correct and present address of her husband.lix[5] No similar return of service with respect to respondent Atty. Villarin appears on the record. In an Ex-Parte Manifestation and Motion dated December 5, 1994, complainant insisted that her husbands correct address remains to be 27-C Masbate St., Quezon City; that it was him who told the postman that he had already moved; and, that any subsequent service by mail will result in the same failure as respondent will either refuse service or misrepresent a change of address again. Complainant therefore asked that copies of the complaint and Court resolution requiring comment be served personally upon her husband by the Courts process servers. We noted and granted the prayer.lix[6] However, when the Courts process server attempted to effect personal service on February 16, 1995, respondent Atty. Alejandro was allegedly out of the house and his house helper refused to accept service. Consequently we

74

considered the copies as having been served upon respondent Atty. Alejandro in our Resolution of July 31, 1996,lix[7] and required him to show cause why he should not be disciplinary dealt with or held in contempt for his continued failure to file comment, and to file such comment, considering the considerable length of time that has lapsed since he has been first required to do so. Respondent Atty. Alejandro failed to comply. Hence, we fined him P1,000.00 and directed that he file the required explanation and comment on the administrative complaint.lix[8] When copies of both resolutions were again returned unserved with postal notations moved, we required complainant anew to submit the correct and present address of respondents, within ten (10) days from notice, under pain of dismissal of her administrative complaint.lix[9] In a handwritten letter dated September 10, 1998, complainant disclosed respondents present address as 12403 Dunlop Drive, Houston, Texas.lix[10] We referred this case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation, within ninety (90) days from notice, in our Resolution of March 17, 2003. In a Report dated August 26, 2003, IBP Commissioner Milagros V. San Juan recommended that both respondents be disbarred on the following rationalization:
In its Resolution dated 31 July 1996, the Supreme Court (Second Division) ruled that respondent Atty. Alejandro was deemed served a copy of the instant administrative complaint and of the Courts Resolution dated 4 July 1994, by substituted service pursuant to Rule 1, Section 6 of the Rules of Court. In the earlier Resolution of the Supreme Court dated 4 July 1994, respondents Atty. Alejandro and Atty. Villarin were directed to file their Comment on the instant Complaint within ten (10) days from notice of said Resolution. To date, no Comment has been filed by either respondent Atty. Alejandro or Atty. Villarin. x x x Complainant submitted a photocopy of the Marriage Contract (Annex A of the lettercomplaint) between herself and respondent Atty. Alejandro executed on 3 March 1971. Complainant also submitted photocopies of the Birth Certificates (Annexes B to D of the lettercomplaint) of the children born out of her marriage to respondent Atty. Alejandro. These documentary evidence submitted by complainant clearly show that there was and is a valid and subsisting marriage between herself and respondent Atty. Alejandro at the time she filed the instant administrative complaint against said respondent, her husband. In support of her charge of bigamy and concubinage against respondents Alejandro and Villarin, complainant submitted a photocopy of the Birth Certificate (Annex E of the lettercomplaint) of one Paolo Villarin Alejandro. The said Birth Certificates states that the mother of said Paolo Villarin Alejandro is Ma. Cristina Arrieta Villarin, while his father is one Warfredo Tomas Alejandro. Said Birth Certificate also states that the parents of Paolo Villarin Alejandro were married on May 1, 1990 in Isabela Province. Given the Birth Certificate of Paolo Villarin Alejandro (Annex E of the letter-complaint), and considering the failure of respondents Atty. Alejandro and Atty. Villarin to deny the charges of complainant, it is submitted that there is sufficient evidence on record which establishes the immoral/illicit relationship between respondents Atty. Alejandro and Atty. Villarin. However, there is no evidence on record which would establish beyond doubt that respondent Atty. Alejandro indeed contracted a second marriage with Atty. Villarin while his marriage to herein complainant was subsisting. Thus, it is recommended that as prayed for by complainant, respondents Atty. Alejandro and Atty. Villarin be disbarred for willful violation of Rule 1.01 of the Code of Professional Responsibility.

The IBP Commission on Bar Discipline adopted and approved the above report and recommendation in its Resolution No. XVI-2003-169 dated September 27, 2003.

75

We agree with the IBP recommendation with respect to respondent Atty. Alejandro. Indeed Rule 1.01, Canon 1 of the Code of Professional Responsibility provides
A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

Thus we have in a number of caseslix[11] disciplined members of the Bar whom we found guilty of misconduct which demonstrated a lack of that good moral character required of them not only as a condition precedent for their admission to the Bar but, likewise, for their continued membership therein. No distinction has been made as to whether the misconduct was committed in the lawyers professional capacity or in his private life. This is because a lawyer may not divide his personality so as to be an attorney at one time and a mere citizen at another.lix[12] He is expected to be competent, honorable and reliable at all times since he who cannot apply and abide by the laws in his private affairs, can hardly be expected to do so in his professional dealings nor lead others in doing so. Professional honesty and honor are not to be expected as the accompaniment of dishonesty and dishonor in other relations. lix[13] The administration of justice, in which the lawyer plays an important role being an officer of the court, demands a high degree of intellectual and moral competency on his part so that the courts and clients may rightly repose confidence in him.lix[14] In the instant case, sufficient evidence was presented to show that respondent Atty. Alejandro, while being lawfully married to complainant, carried on an illicit relationship with another woman, co-respondent Atty. Villarin. Although the evidence presented was not sufficient to prove that he contracted a subsequent bigamous marriage with her, the fact remains that respondent Atty. Alejandro exhibited by his conduct a deplorable lack of that degree of morality required of him as a member of the Bar. We have already held that disbarment proceedings is warranted against a lawyer who abandons his lawful wife and maintains an illicit relationship with another womanlix[15] who had borne him a child.lix[16] We can do no less in the instant case where respondent Atty. Alejandro made himself unavailable to this Court and even fled to another country to escape the consequences of his misconduct. The same penalty however cannot be imposed on respondent Atty. Villarin. I is noted that our Resolution dated July 4, 1994 requiring comment on the administrative complaint was never deemed served upon her, in the same way that it was upon Atty. Alejandro. In fact, it does not appear that copies of the administrative complaint, its annexes, and of our resolution requiring comment were even sent to her. Although sent at the address she allegedly shared with co-respondent Atty. Alejandro, the envelope bearing the copies was addressed to the latter only.lix[17] That was why when both service by registered mail and personal service failed, the copies were deemed served solely upon Atty. Alejandro.lix[18] The IBP for its part attempted to serve copy of the complaint upon Atty. Villarin with directive for her to file answer. It is noted however that the same was sent to respondents old address at 27-C Masbate St., Quezon City, not 12403 Dunlop Drive, Houston, Texas, which was respondents new address on record supplied by the complainant. The return of service therefore showed the postal notation moved. Considering the serious consequences of disbarment proceedings, full opportunity upon reasonable notice must have been given respondent to answer the charge and present evidence in her behalf. It is only in clear cases of waiver that an administrative case be resolved sans respondents answer. WHEREFORE, for Gross Immorality, respondent Atty. Warfredo Tomas Alejandro is DISBARRED from the practice of law, to take effect immediately upon his receipt of this Decision. Let copy of this Decision be attached to Atty. Alejandros personal record in the Office of the Bar Confidant and a copy thereof be furnished the Integrated Bar of the

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Philippines. The complaint against respondent Atty. Maricris A. Villarin is REFERRED BACK to the Integrated Bar of the Philippines for further appropriate proceedings. SO ORDERED. Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.

77

EN BANC

[A.C. No. 6486. September 22, 2004]

EMMA T. DANTES, complainant, vs. ATTY. CRISPIN G. DANTES, respondent. DECISION

PER CURIAM:

Despite variations in the specific standards and provisions, one requirement remains constant in all the jurisdictions where the practice of law is regulated: the candidate must demonstrate that he or she has good moral character, and once he becomes a lawyer he should always behave in accordance with the standard. In this jurisdiction too, good moral character is not only a condition precedentlix[1] to the practice of law, but an unending requirement for all the members of the bar. Hence, when a lawyer is found guilty of grossly immoral conduct, he may be suspended or disbarred.lix[2] In an Affidavit-Complaintlix[3] dated June 6, 2001, filed with the Integrated Bar of the Philippines (IBP), Emma T. Dantes, sought the disbarment of her husband, Atty. Crispin G. Dantes on the ground of immorality, abandonment, and violation of professional ethics and law. The case was docketed as CBD Case No. 01-851. Complainant alleged that respondent is a philanderer. Respondent purportedly engaged in illicit relationships with two women, one after the other, and had illegitimate children with them. From the time respondents illicit affairs started, he failed to give regular support to complainant and their children, thus forcing complainant to work abroad to provide for their childrens needs. Complainant pointed out that these acts of respondent constitute a violation of his lawyers oath and his moral and legal obligation to be a role model to the community. On July 4, 2001, the IBP Commission on Bar Discipline issued an Orderlix[4] requiring respondent to submit his answer to the Affidavit-Complaint. Respondent submitted his Answerlix[5] on November 19, 2001. Though admitting the fact of marriage with the complainant and the birth of their children, respondent alleged that they have mutually agreed to separate eighteen (18) years before after complainant had abandoned him in their Balintawak residence and fled to San Fernando, Pampanga. Respondent claimed that when complainant returned after eighteen years, she insisted that she be accommodated in the place where he and their children were residing. Thus, he was forced to live alone in a rented apartment. Respondent further alleged that he sent their children to the best school he could afford and provided for their needs. He even bought two lots in Pampanga for his sons, Dandelo and Dante, and gave complainant adequate financial support even after she had abandoned him in 1983. Respondent asserted that complainant filed this case in order to force him to remit seventy percent (70%) of his monthly salary to her.

78

Subsequently, the IBP conducted its investigation and hearings on the complaint. Complainant presented her evidence, both oral and documentary, lix[6] to support the allegations in her Affidavit-Complaint. From the evidence presented by the complainant, it was established that on January 19, 1979, complainant and respondent were marriedlix[7] and lived with the latters mother in Balintawak. At that time, respondent was just a fourth year law student. To make ends meet, complainant engaged in the buy and sell business and relied on dole-outs from the respondents mother. Three children were born to the couple, namely, Dandelo, Dante and Daisy, who were born on February 20, 1980,lix[8] October 14, 1981lix[9] and August 11, 1983,lix[10] respectively. Complainant narrated that their relationship was marred by frequent quarrels because of respondents extra-marital affairs.lix[11] Sometime in 1983, she brought their children to her mother in Pampanga to enable her to work because respondent had failed to provide adequate support. From 1986 to 2001, complainant worked abroad as a domestic helper. Denying that there was a mutual agreement between her and respondent to live separately, complainant asseverated that she was just compelled to work abroad to support their children. When she returned to the Philippines, she learned that respondent was living with another woman. Respondent, then bluntly told her, that he did not want to live with her anymore and that he preferred his mistresses. Complainant presented documentary evidence consisting of the birth certificates of Ray Darwin, Darling, and Christian Dave,lix[12] all surnamed Dantes, and the affidavits of respondent and his paramourlix[13] to prove the fact that respondent sired three illegitimate children out of his illicit affairs with two different women. Letters of complainants legitimate children likewise support the allegation that respondent is a womanizer.lix[14] In an Order dated April 17, 2002, respondent was deemed to have waived his right to cross-examine complainant, after he failed to appear during the scheduled hearings despite due notice. He, however, submitted his Comment/Opposition to the Complainants Formal Offer of Evidence with Motion to Exclude the Evidence from the Records of the Proceedings lix[15] on August 1, 2002. Subsequently, on May 29, 2003, respondent submitted a Motion to Adopt Alternative Dispute Resolution Mechanism. Respondents motion was denied because it was filed after the complainant had already presented her evidence.lix[16] Respondent was given a final chance to present his evidence on July 11, 2003. Instead of presenting evidence, respondent filed a Motion for Reconsideration with Motion to Dismiss, which was likewise denied for being a prohibited pleading under the Rules of Procedure of the Commission on Bar Discipline. Respondent submitted his Position Paper on August 4, 2003. In respondents Position Paper,lix[17] he reiterated the allegations in his Answer except that this time, he argued that in view of the resolution of the complaint for support with alimony pendente litelix[18] filed against him by the complainant before the Regional Trial Court (RTC) of Quezon City,lix[19] the instant administrative case should be dismissed for lack of merit. On July 7, 2004, the IBP submitted to us through the Office of the Bar Confidant its Reportlix[20] and Resolution No. XVI-2004-230 involving CBD Case No. 01-851.lix[21] The IBP recommended that the respondent be suspended indefinitely from the practice of law. Except for the penalty, we find the above recommendation well-taken. The Code of Professional Responsibility provides:

79
Rule 1.01- A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. Canon 7- A lawyer shall at all times uphold the integrity and dignity of the legal profession, and support the activities of the Integrated Bar. Rule 7.03- 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.

The Code of Professional Responsibility forbids lawyers from engaging in unlawful, dishonest, immoral or deceitful conduct. 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.lix[22] To be the basis of disciplinary action, the lawyers conduct must not only be immoral, but grossly immoral. That is, it must be so corrupt as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree lix[23] or committed under such scandalous or revolting circumstances as to shock the common sense of decency.lix[24] In Barrientos vs. Daarol,lix[25] we ruled that as officers of the court, lawyers must not only in fact be of good moral character but must also be seen to be of good moral character and leading lives in accordance with the highest moral standards of the community. More specifically, a member of the Bar and officer of the court is not only required to refrain from adulterous relationships or keeping mistresses but must also so behave himself as to avoid scandalizing the public by creating the belief that he is flouting those moral standards. If the practice of law is to remain an honorable profession and attain its basic ideals, those enrolled in its ranks should not only master its tenets and principles but should also, in their lives, accord continuing fidelity to them. The requirement of good moral character is of much greater import, as far as the general public is concerned, than the possession of legal learning. It should be noted that the requirement of good moral character has three ostensible purposes, namely: (i) to protect the public; (ii) to protect the public image of lawyers; and (iii) to protect prospective clients. A writer added a fourth: to protect errant lawyers from themselves.lix[26] Lawyers are expected to abide by the tenets of morality, not only upon admission to the Bar but also throughout their legal career, in order to maintain their good standing in this exclusive and honored fraternity.lix[27] They may be suspended from the practice of law or disbarred for any misconduct, even if it pertains to his private activities, as long as it shows him to be wanting in moral character, honesty, probity or good demeanor.lix[28] Undoubtedly, respondents acts of engaging in illicit relationships with two different women during the subsistence of his marriage to the complainant constitutes grossly immoral conduct warranting the imposition appropriate sanctions. Complainants testimony, taken in conjunction with the documentary evidence, sufficiently established respondents commission of marital infidelity and immorality. Evidently, respondent had breached the high and exacting moral standards set for members of the law profession. He has made a mockery of marriage which is a sacred institution demanding respect and dignity. lix[29] In Toledo vs. Toledo,lix[30] we disbarred respondent for abandoning his lawful wife and cohabiting with another woman who had borne him a child. Likewise, in Obusan vs. Obusan,lix[31] we ruled that abandoning ones wife and resuming carnal relations with a paramour fall within that conduct which is willful, flagrant, or shameless, and which shows moral indifference to the opinion of the good and respectable members of the community.

80 We reiterate our ruling in Cordova vs. Cordova,lix[32] that moral delinquency which affects the fitness of a member of the bar to continue as such, includes conduct that outrages the generally accepted moral standards of the community as exemplified by behavior which makes a mockery of the inviolable social institution of marriage. The power to disbar must be exercised with great caution, and only in a clear case of misconduct that seriously affects the standing and character of the lawyer as an officer of the Court and as a member of the bar.lix[33] Where a lesser penalty, such as temporary suspension, could accomplish the end desired, disbarment should never be decreed.lix[34] However, in the present case, the seriousness of the offense compels the Court to wield its power to disbar as it appears to be the most appropriate penalty. WHEREFORE, in view of the foregoing Atty. Crispin G. Dantes is hereby DISBARRED and his name is ORDERED STRICKEN from the Roll of Attorneys. Let a copy of this Decision be entered in the respondents record as a member of the Bar, and notice of the same be served on the Integrated Bar of the Philippines, and on the Office of the Court Administrator for circulation to all courts in the country. SO ORDERED. Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Callejo, Sr., Azcuna, and Tinga, JJ., concur. Carpio-Morales, J., on official leave. Chico-Nazario, J., on leave.

EN BANC

81

EDUARDO M. COJUANGCO, JR., Complainant,

Adm. Case No. 2474 Present:

DAVIDE, JR., C.J.,

PUNO, PANGANIBAN,
QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ,

versus -

CARPIO,
*AUSTRIA-MARTINEZ,

CORONA,
*CARPIO

MORALES,

CALLEJO, SR.,

AZCUNA, TINGA, and

**CHICO-NAZARIO,

JJ.

ATTY. LEO J. PALMA, Respondent.

Promulgated:

September 15, 2004

82

X --------------------------------------------------------------------------------------x

DECISION

PER CURIAM:

The practice of law is a privilege accorded only to those who measure up to certain rigid standards of mental and moral fitness. For the admission of a

candidate to the bar, the Rules of Court not only prescribe a test of academic preparation but require satisfactory testimonials of good moral character. These standards are neither dispensed with nor lowered after admission: the lawyer must continue to adhere to them or else incur the risk of suspension or removal.lix[1] Eduardo M. Cojuangco, Jr. filed with this Court the instant complaint for disbarment against Atty. Leo J. Palma, alleging as grounds deceit, malpractice, gross misconduct in office, violation of his oath as a lawyer and grossly immoral conduct. The facts are undisputed: Complainant and respondent met sometime in the 70s. Complainant was a client of Angara Concepcion Regala & Cruz Law Offices (ACCRA) and respondent

83

was the lawyer assigned to handle his cases.

Owing to his growing business

concerns, complainant decided to hire respondent as his personal counsel. Consequently, respondents relationship with complainants family became intimate. He traveled and dined with them abroad.lix[2] He frequented their house and even tutored complainants 22-year old daughter Maria Luisa Cojuangco (Lisa), then a student of Assumption

Convent. On June 22, 1982, without the knowledge of complainants family, respondent married Lisa in Hongkong. It was only the next day that respondent informed complainant and assured him that everything is legal. Complainant was shocked, knowing fully well that respondent is a married man and has three children. Upon investigation, complainant found that respondent courted Lisa during their tutoring sessions. Immediately, complainant sent his two sons to Hongkong to convince Lisa to go home to Manila and discuss the matter with the family. Lisa was persuaded. Complainant also came to know that: (a) on the date of the supposed marriage, respondent requested from his (complainants) office an airplane ticket to and from Australia, with stop-over in Hong Kong; (b) respondent misrepresented himself as bachelor before the Hong Kong authorities to facilitate his marriage

84

with Lisa; and

(c) respondent was married to Elizabeth Hermosisima and has

three children, namely: Eugene Philippe, Elias Anton and Eduardo Lorenzo. On August 24, 1982, complainant filed with the Court of First Instance, Branch XXVII, Pasay City a petitionlix[3] for declaration of

nullity of the marriage between respondent and Lisa, docketed as Civil Case No. Pq0401-P. In the Decisionlix[4] dated November 2, 1982, the CFI declared the marriage null and void ab initio. Thereafter, complainant filed with this Court the instant complaintlix[5] for disbarment, imputing to respondent the following acts:
a. In grave abuse and betrayal of the trust and confidence reposed in him by complainant and his family and taking undue advantage of his tutoring sessions with Maria Luisa, respondent secretly courted her. The great disparity in intelligence, education, age, experience and maturity between Maria Luisa and respondent gave the latter an overwhelming moral ascendancy over Maria Luisa as to overcome her scruples and apprehensions about respondents courtship and advances, considering that he is a married man with three (3) children;

b. Respondent courted Maria Luisa with persistence and determination and even pursued her in her travels abroad under false pretenses that he was traveling on official business for complainant. To break down the final resistance of Maria Luisa and assuage her pangs of guilt, he made representations that there was no legal impediment whatsoever to his marrying;

c. With his moral ascendancy over Maria Luisa and his misrepresentation that there was no legal impediment or prohibition to his contracting a second marriage, respondent succeeded in inducing and beguiling her into marrying him. Without complying with the requirements of Philippine law that he should first obtain a judicial declaration of nullity of his marriage to Elizabeth H. Palma and that the advice of Maria Luisas parents should first be

85

obtained she being only twenty-two (22) years of age, respondent succeeded in contracting marriage with her in Hongkong on June 22, 1982 by falsely representing himself before the Hongkong authorities that he is a bachelor. x x x.

Respondent filed a motion to dismisslix[6] on the ground of lack of cause of action. He contended that the complaint fails to allege acts constituting deceit, There is no

malpractice, gross misconduct or violation of his lawyers oath.

allegation that he acted with wanton recklessness, lack of skill or ignorance of the law in serving complainants interest. Anent the charge of grossly immoral conduct, he stressed that he married complainants daughter with utmost sincerity and good faith and that it is contrary to the natural course of things for an immoral man to marry the woman he sincerely loves. In the Resolutionlix[7] dated March 2, 1983, we referred the case to the Office of the Solicitor General (OSG) for investigation, report and recommendation. Former Assistant Solicitor General Oswaldo D. Agcaoili conducted the investigation. Meanwhile, on December 28, 1983, the First Division of this Court issued in G.R. No. 64538lix[8] a Resolutionlix[9] (a) setting aside the CFI November 2, 1982 in Civil Case No. Pq0401-P Decision dated

86

declaring the marriage between respondent and Lisa null and void ab initio; and (b) remanding the case to the CFI for proper proceeding and determination. To this date, the records fail to disclose the outcome of this case. On March 19, 1984, respondent filed with the OSG an Urgent Motion to Suspend Proceedingslix[10] on the ground that the final outcome of Civil Case No. Pq 0401-P poses a prejudicial question to the disbarment proceeding. It was denied. Respondent sought refuge in this Court through an Urgent Motion for Issuance of a Restraining Order.lix[11] In the Resolution dated December 19, 1984, we enjoined the OSG from continuing the investigation of the disbarment proceedings.lix[12] Thereafter, the case was referred to the Integrated Bar of the Philippines Commission on Bar Discipline. Elamparo issued the following order:
Considering the length of time that this case has remained pending and as a practical measure to ease the backlog of this Commission, the parties shall within ten (10) days from notice, manifest whether or not they are still interested in prosecuting this case or supervening events have transpired which render this case moot and academic or otherwise, this case shall be deemed closed and terminated.lix[13]

On October 19, 1998, Commissioner Julio C.

In his Manifestation,lix[14] complainant manifested and confirmed his continuing interest in prosecuting his complaint for disbarment against respondent.

87

On the other hand, respondent sought several postponements of hearing on the ground that he needed more time to locate vital documents in support of his defense. The scheduled hearing of December 4, 2001 was reset for the last time on January 24, 2002, with a warning that should he fail to appear or present deposition, the case will be deemed submitted for resolution.lix[15] Respondent again failed to

appear on January 24, 2002; hence, the case was considered submitted for resolution.lix[16] On March 20, 2003, Investigating Commissioner Milagros V. San Juan submitted a Report and Recommendation finding respondent guilty of grossly immoral conduct and violation of his oath as a lawyer. She recommended that

respondent be suspended from the practice of law for a period of three (3) years. Thus:
The main issue to be resolved in this case is whether or not respondent committed the following acts which warrant his disbarment:

a)

a) Grave abuse and betrayal of the trust and confidence reposed in him by complainant; b) His misrepresentation that there was no legal impediment or prohibition to his contracting a second marriage; c) The acts of respondent constitute deceit, malpractice, gross misconduct in office, grossly immoral conduct and violation of his oath as a lawyer.

b)

c)

Respondent admits that he married Maria Luisa in Hongkong representing himself as a bachelor, however, he claimed that the marriage certificate stated a condition no different from term spinster with respect to Luisa.

88

There is no question that respondent as a lawyer well versed in the law knew fully well that in marrying Maria Luisa he was entering into a bigamous marriage defined and penalized under Article 349 of the Revised Penal Code. The respondent betrayed the trust reposed in him by complainant. He was treated as part of the family and was allowed to tutor Maria Luisa. For the foregoing reasons, it is submitted that respondent committed grossly immoral conduct and violation of his oath as a lawyer, and it is recommended that respondent be suspended from the practice of law for a period of three (3) years.
SO ORDERED.

The IBP Board of Governors adopted and approved the above Report and Recommendation, but it reduced respondents penalty to only one (1) year suspension. Except for the penalty, we affirm the IBPs Report and Recommendation. At the outset, it must be stressed that the law profession does not prescribe a dichotomy of standards among its members. There is no distinction as to whether the transgression is committed in the lawyers professional capacity or in his private life. This is because a lawyer may not divide his personality so as to be an attorney at one time and a mere citizen at another.lix[17] Thus, not only his professional

activities but even his private life, insofar as the latter may reflect unfavorably upon the good name and prestige of the profession and the courts, may at any time be the subject of inquiry on the part of the proper authorities.lix[18]

89

Respondent claims that he had served complainant to the best of his ability. In fact, the complaint does not allege that he acted with wanton recklessness, lack of skill and ignorance of the law. While, complainant himself admitted that respondent was a good lawyer,lix[19] however, professional competency alone does not make a lawyer a worthy member of the Bar. Good moral character is always an indispensable requirement. The ringing truth in this case is that respondent married Lisa while he has a subsisting marriage with Elizabeth Hermosisima. The Certificationlix[20] from the

Local Civil Registrar of Cebu City shows that he married Elizabeth on December 19, 1971 at Cardials Private Chapel, Cebu City. On the other hand, the Certificate of

Marriagelix[21] from the Deputy Registrar of Marriages, Hong Kong, proves respondents subsequent marriage with Lisa on July 9, 1982. That Elizabeth was alive at the time of respondents second marriage was confirmed on the witness stand by Atty. Victor P. Lazatin, Elizabeths classmate and family friend.lix[22] Undoubtedly, respondents act constitutes grossly immoral conduct, a ground for disbarment under Section 27, Rule 138 of the Revised Rules of Court. He

exhibited a deplorable lack of that degree of morality required of him as a member of the Bar. In particular, he made a mockery of marriage which is a sacred His act of contracting a second

institution demanding respect and dignity.

marriage is contrary to honesty, justice, decency and morality.lix[23]

90

This is not the first occasion that we censure immorality.

Thus, we have

somehow come up with a common definition of what constitutes immoral conduct, i.e., that conduct which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of community.lix[24] Measured manifestly immoral. the good and respectable members of the this definition, respondents act is

against

First, he abandoned his lawful wife and three children.

Second, he lured an innocent young woman into marrying him. And third, he
misrepresented himself as a bachelor so he could contract marriage in a foreign land. Our rulings in the following cases are relevant: 1) In Macarrubo vs. Macarrubo,lix[25] respondent entered into multiple

marriages and then resorted to legal remedies to sever them. There, we ruled that [S]uch pattern of misconduct by respondent undermines the institutions of marriage and family, institutions that this society looks to for the rearing of our children, for the development of values essential to the survival and well-being of our communities, and for the strengthening of our nation as a whole. there can be no other fate that awaits respondent than to be disbarred. (2) In Tucay vs. Tucay,lix[26] respondent contracted marriage with another married woman and left complainant with whom he has been married for thirty years. We ruled that such acts constitute a grossly immoral conduct and only As such,

91

indicative of an extremely low regard for the fundamental ethics of his profession, warranting respondents disbarment. (3) In Villasanta vs. Peralta,lix[27] respondent married complainant while his first wife was still alive, their marriage still valid and subsisting. We held that the act of respondent of contracting the second marriage is contrary to honesty, justice, decency and morality. Thus, lacking the good moral character required by the

Rules of Court, respondent was disqualified from being admitted to the bar. (4) In Cabrera vs. Agustin,lix[28] respondent lured an innocent woman into a simulated marriage and thereafter satisfied his lust. We held that respondent failed to maintain that degree of morality and integrity, which at all times is expected of members of the bar. He is, therefore, disbarred from the practice of law. (5) In Toledo vs. Toledo,lix[29] respondent abandoned his wife, who supported him and spent for his law education, and thereafter cohabited with another woman. We ruled that he failed to maintain the highest degree of morality expected and required of a member of the bar. For this, respondent was disbarred.

(6) In Obusan vs. Obusan, Jr.,lix[30] respondent abandoned his lawful wife and child and resumed cohabitation with his former paramour. Here, we ruled that

abandoning ones wife and resuming carnal relations with a former paramour, a married woman, constitute grossly immoral conduct warranting disbarment.

92

The circumstances here speak of a clear case of betrayal of trust and abuse of confidence. It was respondents closeness to the complainants family as well as the latters complete trust in him that made possible his intimate relationship with Lisa. When his concern was supposed to be complainants legal affairs only, he sneaked at the latters back and courted his daughter. Like the proverbial thief in the night, he attacked when nobody was looking. Moreover, he availed of complainants

resources by securing a plane ticket from complainants office in order to marry the latters daughter in Hongkong. He did this without complainants knowledge.

Afterwards, he even had the temerity to assure complainant that everything is legal. Clearly, respondent had crossed the limits of propriety and decency. Respondent justified his conduct by professing he really loved Lisa and since he married her, he cannot be charged with immorality. His reasoning shows a In such

distorted mind and a brazen regard on the sanctity of marriage.

relationship, the man and the woman are obliged to live together, observe mutual respect and fidelity.lix[31] How could respondent perform these obligations to

Lisa when he was previously married to Elizabeth? If he really loved her, then the noblest thing he could have done was to walk away. Respondents culpability is aggravated by the fact that Lisa was just a 22-year old college student of Assumption Convent and was under psychological treatment for emotional immaturity.lix[32] Naturally, she was an easy prey.

93

Anent respondents argument that since the validity of his marriage to Lisa has not yet been determined by the court with finality, the same poses a prejudicial question to the present disbarment proceeding. Suffice it to say that a subsequent judgment of annulment of marriage has no bearing to the instant disbarment proceeding. As we held in In re Almacen,lix[33] a disbarment case is sui generis for it is neither purely civil nor purely criminal but is rather an investigation by the court into the conduct of its officers. Thus, if the acquittal of a lawyer in a criminal action is not determinative of an administrative case against him,lix[34] or if an affidavit of withdrawal of a disbarment case does not affect its course,lix[35] then the judgment of annulment of respondents marriage does not also exonerate him from a wrongdoing actually committed. So long as the quantum of proof --- clear

preponderance of evidence --- in disciplinary proceedings against members of the bar is met, then liability attaches.lix[36] The interdict upon lawyers, as inscribed in Rule 1.01 of the Code of Professional Responsibility, is that they shall not engage in unlawful, dishonest, immoral or deceitful conduct. This is founded on the lawyers primordial duty to society as spelled out in Canon 1 which states:
CANON 1 A lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law and legal processes.

94

It is not by coincidence that the drafters of our Code of Professional Responsibility ranked the above responsibility first in the enumeration. They knew then that more than anybody else, it is the lawyers -- the disciples of law -- who are most obliged to venerate the law. As stated in Ex Parte Wall:lix[37]
Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all men in the world, to repudiate and override the laws, to trample them underfoot and to ignore the very bonds of society, argues recreancy to his position and office and sets a pernicious example to the insubordinate and dangerous elements of the body politic.

Corollarily, the above responsibility is enshrined in the Attorneys Oath which every lawyer in the country has to take before he is allowed to practice. In sum, respondent committed grossly immoral conduct and violation of his oath as a lawyer. The penalty of one (1) year suspension recommended by the IBP is not commensurate to the gravity of his offense. The bulk of jurisprudence supports the imposition of the extreme penalty of disbarment. WHEREFORE, respondent Leo J. Palma is found GUILTY of grossly immoral conduct and violation of his oath as a lawyer, and is hereby DISBARRED from the practice of law.

95

Let respondents name be stricken from the Roll of Attorneys immediately. Furnish the Bar Confidant, the Integrated Bar of the Philippines and all courts throughout the country with copies of this Decision. SO ORDERED.

HILARIO G. DAVIDE, JR.

Chief Justice

96

REYNATO S. PUNO Associate Justice

LEONARDO A. QUISUMBING Associate Justice

ANGELINA SANDOVAL-GUTIERREZ Associate Justice

(On Official Leave) MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

(On Official Leave) CONCHITA CARPIO MORALES Associate Justice

ADOLF S. AZCUNA Associate Justice

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Republic of the Philippines SUPREME COURT Manila EN BANC B.M. No. 1222 April 24, 2009

RE: 2003 BAR EXAMINATIONS x - - - - - - - - - - - - - - - - - - - - - - -x ATTY. DANILO DE GUZMAN, Petitioner, RESOLUTION YNARES-SANTIAGO, J.: This treats the Petition for Judicial Clemency and Compassion dated November 10, 2008 filed by petitioner Danilo de Guzman. He prays that this Honorable Court "in the exercise of equity and compassion, grant petitioners plea for judicial clemency, and thereupon, order his reinstatement as a member in good standing of the Philippine Bar."1 To recall, on February 4, 2004, the Court promulgated a Resolution, in B.M. No. 1222, the dispositive portion of which reads in part: WHEREFORE, the Court, acting on the recommendations of the Investigating Committee, hereby resolves to (1) DISBAR Atty. DANILO DE GUZMAN from the practice of law effective upon his receipt of this RESOLUTION; xxxx The subject of the Resolution is the leakage of questions in Mercantile Law during the 2003 Bar Examinations. Petitioner at that time was employed as an assistant lawyer in the law firm of Balgos & Perez, one of whose partners, Marcial Balgos, was the examiner for Mercantile Law during the said bar examinations. The Court had adopted the findings of the Investigating Committee, which identified petitioner as the person who had downloaded the test questions from the computer of Balgos and faxed them to other persons. The Office of the Bar Confidant (OBC) has favorably recommended the reinstatement of petitioner in the Philippine Bar. In a Report dated January 6, 2009, the OBC rendered its assessment of the petition, the relevant portions of which we quote hereunder: Petitioner narrated that he had labored to become a lawyer to fulfill his fathers childhood dream to become one. This task was not particularly easy for him and his family but he willed to endure the same in order to pay tribute to his parents. Petitioner added that even at a very young age, he already imposed upon himself the duty of rendering service to his fellowmen. At 19 years, he started his exposure to public service when he was elected Chairman of the Sangguniang Kabataan (SK) of Barangay Tuktukan, Taguig City. During this time, he initiated several projects benefiting the youth in their barangay.

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Thereafter, petitioner focused on his studies, taking up Bachelor of Arts in Political Science and eventually pursuing Bachelor of Laws. In his second year in law school, he was elected as the President of the Student Council of the Institute of Law of the Far Eastern University (FEU). Here, he spearheaded various activities including the conduct of seminars for law students as well as the holding of bar operations for bar examinees. Despite his many extra-curricular activities as a youth and student leader, petitioner still managed to excel in his studies. Thus, he was conferred an Academic Excellence Award upon his graduation in Bachelor of Laws. Upon admission to the bar in April 1999, petitioner immediately entered government service as a Legal Officer assigned at the Sangguniang Bayan of Taguig. Simultaneously, he also rendered free legal services to less fortunate residents of Taguig City who were then in need of legal assistance. In March 2000, petitioner was hired as one of the Associate Lawyers at the Balgos and Perez Law Offices. It was during his stay with this firm when his craft as a lawyer was polished and developed. Despite having entered private practice, he continued to render free legal services to his fellow Taguigeos. Then in February 2004, by a sudden twist of fate, petitioners flourishing career was cut short as he was stripped of his license to practice law for his alleged involvement in the leakage in the 2003 Bar Examinations. Devastated, petitioner then practically locked himself inside his house to avoid the rather unavoidable consequences of his disbarment. On March 2004, however, petitioner was given a new lease in life when he was taken as a consultant by the City Government of Taguig. Later, he was designated as a member of the Secretariat of the Peoples Law Enforcement Board (PLEB). For the next five (5) years, petitioner concentrated mainly on rendering public service. Petitioner humbly acknowledged the damaging impact of his act which unfortunately, compromised the integrity of the bar examinations. As could be borne from the records of the investigation, he cooperated fully in the investigation conducted and took personal responsibility for his actions. Also, he has offered his sincerest apologies to Atty. Balgos, to the Court as well as to all the 2003 bar examinees for the unforeseen and unintended effects of his actions. Petitioner averred that he has since learned from his mistakes and has taken the said humbling experience to make him a better person. Meanwhile, as part of his Petition, petitioner submitted the following testimonials and endorsements of various individuals and entities all attesting to his good moral character: 1) Resolution No. 101, Series of 2007, "Resolution Expressing Full Support to Danilo G. De Guzman in his Application for Judicial Clemency, Endorsing his Competence and Fitness to be Reinstated as a Member of the Philippine Bar and for Other Purposes" dated 4 June 2007 of the Sangguniang Panlungsod, City of Taguig; 2) "Isang Bukas na Liham na Naglalayong Iparating sa Kataas-Taasang Hukuman ang Buong Suporta ng Pamunuan at mga Kasapi ng Southeast Peoples Village Homeowners Association, Inc. (SEPHVOA) kay Danilo G. De Guzman sa Kanyang Petisyong Magawaran ng Kapatawaran at ang Boluntaryong Pag-susulong sa Kanyang Kakayahan Upang Maibalik sa Kanya ang mga Pribilehiyo ng Isang Abogado" dated 1 June 2007 of the Southeast Peoples Village Homeowners Association, Inc. (SEPHVOA), Ibayo-Tipas, City of Taguig;

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3) "Isang Bukas na Liham na Naglalayong Iparating sa Kataas-Taasang Hukuman ang Buong Suporta ng Pamunuan at mga Kasapi ng Samahang Residente ng Mauling Creek, Inc. (SAREMAC) kay G. Danilo G. De Guzman sa Kanyang Petisyong Magawaran ng Kapatawaran at ang Boluntaryong Pag-susulong sa Kanyang Kakayahan Upang Maibalik sa Kanya ang mga Pribilehiyo ng Isang Abogado" dated 1 June 2007 of the Samahang Residente ng Mauling Creek, Inc. (SAREMAC), Lower Bicutan, City of Taguig; 4) "Isang Bukas na Liham na Naglalayong Iparating sa Kataas-Taasang Hukuman ang Buong Suporta ng Pamunuan at mga Kasapi ng Samahan ng mga Maralita (PULONG KENDI) Neighborhood Association, Inc. (SAMANA) kay G. Danilo G. De Guzman sa Kanyang Petisyong Magawaran ng Kapatawaran at ang Boluntaryong Pag-susulong sa Kanyang Kakayahan Upang Maibalik sa Kanya ang mga Pribilehiyo ng Isang Abogado" dated 1 June 2007 of the Samahan ng mga Maralita (PULONG KENDI) Neighborhood Association, Inc. (SAMANA), Sta. Ana, City of Taguig; 5) "An Open Letter Attesting Personally to the Competence and Fitness of Danilo G. De Guzman as to Warrant the Grant of Judicial Clemency and his Reinstatement as Member of the Philippine Bar" dated 8 June 2007 of Miguelito Nazareno V. Llantino, Laogan, Trespeses and Llantino Law Offices; 6) "Testimonial to the Moral and Spiritual Competence of Danilo G. De Guzman to be Truly Deserving of Judicial Clemency and Compassion" dated 5 July 2007 of Rev. Fr. Paul G. Balagtas, Parish Priest, Archdiocesan Shrine of St. Anne; 7) "Testimonial Letter" dated 18 February 2008 of Atty. Loreto C. Ata, President, Far Eastern University Law Alumni Association (FEULAA), Far Eastern University (FEU); 8) "Isang Bukas na Liham na Naglalayong Iparating sa Kataas-Taasang Hukuman ang Buong Suporta ng Pamunuan at mga Kasapi ng Samahang Bisig Kamay sa Kaunlaran, Inc. (SABISKA) kay G. Danilo G. De Guzman sa Kanyang Petisyong Magawaran ng Kapatawaran at ang Boluntaryong Pag-susulong sa Kanyang Kakayahan Upang Maibalik sa Kanya ang mga Pribilehiyo ng Isang Abogado" dated 8 July 2008 of the Samahang Bisig Kamay sa Kaunlaran, Inc. (SABISKA); 9) Board Resolution No. 02, Series of 2008, "A Resolution Recognizing the Contributions of Danilo G. De Guzman to the Peoples Law Enforcement Board (PLEB) Taguig City, Attesting to his Utmost Dedication and Commitment to the Call of Civic and Social Duty and for Other Purposes" dated 11 July 2008 of the Peoples Law Enforcement Board (PLEB); 10) "A Personal Appeal for the Grant of Judicial Forgiveness and Compassion in Favor of Danilo G. De Guzman" dated 14 July 2008 of Atty. Edwin R. Sandoval, Professor, College of Law, San Sebastian College Recoletos; 11) "An Open Letter Personally Attesting to the Moral competence and Fitness of Danilo G. De Guzman" dated 5 September 2008 of Mr. Nixon F. Faderog, Deputy Grand [Kn]ight, Knights of Columbus and President, General Parent-Teacher Association, Taguig National High School, Lower Bicutan, Taguig City; 12) "Testimonial Letter" dated 5 September 2008 of Atty. Primitivo C. Cruz, President, Taguig Lawyers League, Inc., Tuktukan, Taguig City; 13) "Testimonial Letter" dated 21 October 2008 of Judge Hilario L. Laqui, Presiding Judge, Regional Trail Court (RTC), Branch 218, Quezon City; and

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14) "Testimonial Letter" dated 28 October 2008 of Justice Oscar M. Herrera, former Justice, Court of Appeals and former Dean, Institute of Law, Far Eastern University (FEU). Citing the case of In Re: Carlos S. Basa, petitioner pleaded that he be afforded the same kindness and compassion in order that, like Atty. Basa, his promising future may not be perpetually foreclosed. In the said case, the Court had the occasion to say: Carlos S. Basa is a young man about 29 years of age, admitted to the bars of California and the Philippine Islands. Recently, he was charged in the Court of First Instance of the City of Manila with the crime of abduction with consent, was found guilty in a decision rendered by the Honorable M.V. De Rosario, Judge of First Instance, and was sentenced to be imprisoned for a period of two years, eleven months and eleven days of prision correccional. On appeal, this decision was affirmed in a judgment handed down by the second division of the Supreme Court. xxxx When come next, as we must, to determine the exact action which should be taken by the court, we do so regretfully and reluctantly. On the one hand, the violation of the criminal law by the respondent attorney cannot be lightly passed over. On the other hand, we are willing to strain the limits of our compassion to the uttermost in order that so promising a career may not be utterly ruined. Petitioner promised to commit himself to be more circumspect in his actions and solemnly pledged to exert all efforts to atone for his misdeeds. There may be a reasonable ground to consider the herein Petition. In the case of Re: Petition of Al Argosino to Take the Lawyers Oath (Bar Matter 712), which may be applied in the instant case, the Court said: After a very careful evaluation of this case, we resolve to allow petitioner Al Caparros Argosino to take the lawyer's oath, sign the Roll of Attorneys and practice the legal profession with the following admonition: In allowing Mr. Argosino to take the lawyers oath, the Court recognizes that Mr. Argosino is not inherently of bad moral fiber. On the contrary, the various certifications show that he is a devout Catholic with a genuine concern for civic duties and public service. The Court is persuaded that Mr. Argosino has exerted all efforts, to atone for the death of Raul Camaligan. We are prepared to give him the benefit of the doubt, taking judicial notice of the general tendency of youth to be rash, temerarious and uncalculating. xxxx Meanwhile, in the case of Rodolfo M. Bernardo vs. Atty. Ismael F. Mejia (Administrative Case No. 2984), the Court [in] deciding whether or not to reinstate Atty. Mejia to the practice of law stated: The Court will take into consideration the applicants character and standing prior to the disbarment, the nature and character of the charge/s for which he was disbarred, his conduct subsequent to the disbarment and the time that has elapsed in between the disbarment and the application for reinstatement. Petitioner was barely thirty (30) years old and had only been in the practice of law for five (5) years when he was disbarred from the practice of law. It is of no doubt that petitioner had a promising future ahead of him where it not for the decision of the Court stripping off his license.

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Petitioner is also of good moral repute, not only before but likewise, after his disbarment, as attested to overwhelmingly by his constituents, colleagues as well as people of known probity in the community and society. Way before the petitioner was even admitted to the bar, he had already manifested his intense desire to render public service as evidenced by his active involvement and participation in several social and civic projects and activities. Likewise, even during and after his disbarment, which could be perceived by some as a debilitating circumstance, petitioner still managed to continue extending his assistance to others in whatever means possible. This only proves petitioners strength of character and positive moral fiber. However, still, it is of no question that petitioners act in copying the examination questions from Atty. Balgos computer without the latters knowledge and consent, and which questions later turned out to be the bar examinations questions in Mercantile Law in the 2003 Bar Examinations, is not at all commendable. While we do believe that petitioner sincerely did not intend to cause the damage that his action ensued, still, he must be sanctioned for unduly compromising the integrity of the bar examinations as well as of this Court. We are convinced, however, that petitioner has since reformed and has sincerely reflected on his transgressions. Thus, in view of the circumstances and likewise for humanitarian considerations, the penalty of disbarment may now be commuted to suspension. Considering the fact, however, that petitioner had already been disbarred for more than five (5) years, the same may be considered as proper service of said commuted penalty and thus, may now be allowed to resume practice of law. WHEREFORE, PREMISES CONSIDERED, it is respectfully recommended that the instant Petition for Judicial Clemency and Compassion dated 10 November 2008 of petitioner DANILO G. DE GUZMAN be GRANTED. Petitioners disbarment is now commuted to suspension, which suspension is considered as served in view of the petitioners five (5) year disbarment. Hence, petitioner may now be allowed to resume practice of law. The recommendation of the Office of the Bar Confidant is well-taken in part. We deem petitioner worthy of clemency to the extent of commuting his penalty to seven (7) years suspension from the practice of law, inclusive of the five (5) years he has already served his disbarment.
1avvphi 1.zw+

Penalties, such as disbarment, are imposed not to punish but to correct offenders.2 While the Court is ever mindful of its duty to discipline its erring officers, it also knows how to show compassion when the penalty imposed has already served its purpose.3 In cases where we have deigned to lift or commute the supreme penalty of disbarment imposed on the lawyer, we have taken into account the remorse of the disbarred lawyer4 and the conduct of his public life during his years outside of the bar.5 For example, in Valencia v. Antiniw, we held: However, the record shows that the long period of respondent's disbarment gave him the chance to purge himself of his misconduct, to show his remorse and repentance, and to demonstrate his willingness and capacity to live up once again to the exacting standards of conduct demanded of every member of the bar and officer of the court. During respondent's disbarment for more than fifteen (15) years to date for his professional infraction, he has been persistent in reiterating his apologies and pleas for reinstatement to the practice of law and unrelenting in his efforts to show that he has regained his worthiness to practice law, by his civic and humanitarian activities and unblemished record as an elected public servant, as attested to by numerous civic and professional organizations, government institutions, public officials and members of the judiciary.6 And in Bernardo v. Atty. Mejia,7 we noted: Although the Court does not lightly take the bases for Mejias disbarment, it also cannot close its eyes to the fact that Mejia is already of advanced years. While the age of the petitioner and the length of time during which he has endured the ignominy of disbarment are not the sole measure in allowing a petition for

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reinstatement, the Court takes cognizance of the rehabilitation of Mejia. Since his disbarment in 1992, no other transgression has been attributed to him, and he has shown remorse. Obviously, he has learned his lesson from this experience, and his punishment has lasted long enough. x x x Petitioner has sufficiently demonstrated the remorse expected of him considering the gravity of his transgressions. Even more to his favor, petitioner has redirected focus since his disbarment towards public service, particularly with the Peoples Law Enforcement Board. The attestations submitted by his peers in the community and other esteemed members of the legal profession, such as retired Court of Appeals Associate Justice Oscar Herrera, Judge Hilario Laqui, Professor Edwin Sandoval and Atty. Lorenzo Ata, and the ecclesiastical community such as Rev. Fr. Paul Balagtas testify to his positive impact on society at large since the unfortunate events of 2003. Petitioners subsequent track record in public service affords the Court some hope that if he were to reacquire membership in the Philippine bar, his achievements as a lawyer would redound to the general good and more than mitigate the stain on his record. Compassion to the petitioner is warranted. Nonetheless, we wish to impart to him the following stern warning: "Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all men in the world, to repudiate and override the laws, to trample them underfoot and to ignore the very bands of society, argues recreancy to his position and office and sets a pernicious example to the insubordinate and dangerous elements of the body politic."8 WHEREFORE, in view of the foregoing, the Petition for Judicial Clemency and Compassion is hereby GRANTED IN PART. The disbarment of DANILO G. DE GUZMAN from the practice of law is hereby COMMUTED to SEVEN (7) YEARS SUSPENSION FROM THE PRACTICE OF LAW, reckoned from February 4, 2004. SO ORDERED. CONSUELO YNARES-SANTIAGO Associate Justice WE CONCUR: REYNATO S. PUNO Chief Justice LEONARDO A. QUISUMBING Associate Justice MA. ALICIA AUSTRIA-MARTINEZ Associate Justice CONCHITA CARPIO MORALES Associate Justice MINITA V. CHICO-NAZARIO Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice ANTONIO T. CARPIO Associate Justice RENATO C. CORONA Associate Justice DANTE O. TINGA Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice

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ARTURO D. BRION Associate Justice LUCAS P. BERSAMIN Associate Justice

DIOSDADO M. PERALTA Associate Justice

Footnotes
*

On official leave. Petition for Judicial Clemency and Compassion (hereinafter, Petition), p. 26. Bernardo v. Mejia, A.C. No. 2984, August 31, 2007, 531 SCRA 639. Id.

See Adez Realty, Incorporated v. Court of Appeals, G.R. No. 100643, December 12, 1995, 251 SCRA 201.
5

A.C. No. 1302, 1391, 1543, June 30, 2008, 556 SCRA 503. Id. at 515. Supra note 2 at 643. Barrios v. Martinez, A.C. No. 4585, November 12, 2004, 442 SCRA 324, 341.

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EN BANC

AGUIRRE, complainant, vs. ATTY. ALFREDO CASTILLO, respondent.

DECISION PER CURIAM: Before this Court is a Petition for Disbarment filed by Carmelita I. Zaguirre against Atty. Alfredo Castillo on the ground of Gross Immoral Conduct. The facts as borne by the records are as follows: Complainant and respondent met sometime in 1996 when the two became officemates at the National Bureau of Investigation (NBI).lix[1] Respondent courted complainant and promised to marry her while representing himself to be single.lix[2] Soon they had an intimate relationship that started sometime in 1996 and lasted until 1997.lix[3] During their affair, respondent was preparing for the bar examinations which he passed. On May 10, 1997, he was admitted as a member of the Philippine Bar. lix[4] It was only around the first week of May 1997 that complainant first learned that respondent was already married when his wife went to her office and confronted her about her relationship with respondent. lix[5] On September 10, 1997, respondent, who by now is a lawyer, executed an affidavit, admitting his relationship with the complainant and recognizing the unborn child she was carrying as his. lix[6] On December 09, 1997, complainant gave birth to a baby girl, Aletha Jessa.lix[7] By this time however, respondent had started to refuse recognizing the child and giving her any form of support.lix[8] Respondent claims that: he never courted the complainant; what transpired between them was nothing but mutual lust and desire; he never represented himself as single since it was known in the NBI that he was already married and with children;lix[9] complainant is almost 10 years older than him and knew beforehand that he is already married;lix[10] the child borne by complainant is not his, because the complainant was seeing other men at the time they were having an affair.lix[11] He admits that he signed the affidavit dated September 10, 1997 but explains that he only did so to save complainant from embarrassment. Also, he did not know at the time that complainant was seeing other men.lix[12] After due hearing, the IBP Commission on Bar Discipline found Atty. Alfredo Castillo guilty of gross immoral conduct and recommends that he be meted the penalty of indefinite suspension from the practice of law. The Court agrees with the findings and recommendation of the IBP. The Code of Professional Responsibility provides: Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. xxx xxx xxx CANON 7 - A lawyer shall at all times uphold the integrity and dignity of the legal profession, and support the activities of the Integrated Bar. xxx xxx xxx Rule 7.03 - 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

105 the legal profession. Immoral conduct has been defined as: xxx that conduct which is so willful, flagrant, or shameless as to show indifference to the opinion of good and respectable members of the community. Furthermore, such conduct must not only be immoral, but grossly immoral. That is, it must be so corrupt as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree or committed under such scandalous or revolting circumstances as to shock the common sense of decency.lix[13] In his affidavit dated September 10, 1997, duly acknowledged before a notary public, he declared explicitly: 1. That I had a relationship with one Carmelita Zaguirre, my officemate; 2. That as a result of that relationship, she is presently pregnant with my child; 3. That I hereby voluntarily recognize the child now under (sic) her womb to be my own; 4. That I am willing to support the said child henceforth, including his/her personal and medical needs, education, housing, food, clothing and other necessities for living, which I will give through his/her mother, Carmelita Zaguirre, until he/she becomes of legal age and capable to live on his/her own; 5. That I undertake to sign the birth certificate as an additional proof that he/she is my child; however, my failure to sign does not negate the recognition and acknowledgement already done herein; 6. That I am executing this affidavit without compulsion on my part and being a lawyer, I have full knowledge of the consequence of such acknowledgment and recognition.lix[14] More incriminating is his handwritten letter dated March 12, 1998 which states in part: Ayoko ng umabot tayo sa kung saan-saan pa. All your officemates, e.g., Ate Ging, Glo, Guy and others (say) that I am the look like(sic) of your daughter. Heres my bargain. I will help you in supporting your daughter, but I cannot promise fix amount for monthly support of your daughter. However it shall not be less than P500 but not more than P1,000.lix[15] In the recent case of Luguid vs. Judge Camano, Jr., the Court in castigating a judge stated that: ...even as an ordinary lawyer, respondent has to conform to the strict standard of conduct demanded of members of the profession. Certainly, fathering children by a woman other than his lawful wife fails to meet these standards.lix[16] Siring a child with a woman other than his wife is a conduct way below the standards of morality required of every lawyer.lix[17] Moreover, the attempt of respondent to renege on his notarized statement recognizing and undertaking to support his child by Carmelita demonstrates a certain unscrupulousness on his part which is highly censurable, unbecoming a member of a noble profession, tantamount to self-stultification.lix[18] This Court has repeatedly held: as officers of the court, lawyers must not only in fact be of good moral character but must also be seen to be of good moral character and leading lives in accordance with the highest moral standards of the community. More specifically, a member of the Bar and officer of the court is not only required to refrain from adulterous relationships or the keeping of mistresses but must also so behave himself as to avoid scandalizing the public by creating the belief that he is flouting those moral standards.lix[19]

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While respondent does not deny having an extra-marital affair with complainant he seeks understanding from the Court, pointing out that men by nature are polygamous,lix[20] and that what happened between them was nothing but mutual lust and desire.lix[21] The Court is not convinced. In fact, it is appalled at the reprehensible, amoral attitude of the respondent. Respondent claims that he did not use any deception to win her affection. Granting arguendo that complainant entered into a relationship with him knowing full well his marital status, still it does not absolve him of gross immorality for what is in question in a case like this is respondents fitness to be a member of the legal profession. It is not dependent whether or not the other party knowingly engaged in an immoral relationship with him. We agree with the IBP that the defense of in pari delicto is not feasible. The Court held in Mortel vs. Aspiras: In a disbarment proceeding, it is immaterial that the complainant is in pari delicto because this is not a proceeding to grant relief to the complainant, but one to purge the law profession of unworthy members, to protect the public and the courts.lix[22] The illicit relationship with Carmelita took place while respondent was preparing to take the bar examinations. Thus, it cannot be said that it is unknown to him that an applicant for admission to membership in the bar must show that he is possessed of good moral character, a requirement which is not dispensed with upon admission to membership of the bar.lix[23] This qualification is not only a condition precedent to admission to the legal profession, but its continued possession is essential to maintain ones good standing in the profession;lix[24] it is a continuing requirement to the practice of lawlix[25] and therefore admission to the bar does not preclude a subsequent judicial inquiry, upon proper complaint, into any question concerning his mental or moral fitness before he became a lawyer. This is because his admission to practice merely creates a rebuttable presumption that he has all the qualifications to become a lawyer. The Court held: The practice of law is not a right but a privilege bestowed by the State on those who show that they possess, and continue to possess, the qualifications required by law for the conferment of such privilege. We must stress that membership in the bar is a privilege burdened with conditions. A lawyer has the privilege to practice law only during good behavior. He can be deprived of his license for misconduct ascertained and declared by judgment of the court after giving him the opportunity to be heard.lix[26] and in Dumadag vs. Lumaya: The practice of law is a privilege burdened with conditions. Adherence to the rigid standards of mental fitness, maintenance of the highest degree of morality and faithful compliance with the rules of the legal profession are the conditions required for remaining a member of good standing of the bar and for enjoying the privilege to practice law.lix[27] Respondent repeatedly engaged in sexual congress with a woman not his wife and now refuses to recognize and support a child whom he previously recognized and promised to support. Clearly therefore, respondent violated the standards of morality required of the legal profession and should be disciplined accordingly. As consistently held by this Court, disbarment shall not be meted out if a lesser punishment could be given.lix[28] Records show that from the time he took his oath in 1997, he has severed his ties with complainant and now lives with his wife and children in Mindoro. As of now, the Court does not perceive this fact as an indication of respondents effort to mend his ways or that he recognizes the impact of his offense on the noble profession of law. Nevertheless, the Court deems it more appropriate under the circumstances that indefinite suspension should be meted out than disbarment. The suspension

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shall last until such time that respondent is able to show, to the full satisfaction of the Court, that he had instilled in himself a firm conviction of maintaining moral integrity and uprightness required of every member of the profession. The rule is settled that a lawyer may be suspended or disbarred for any misconduct, even if it pertains to his private activities, as long as it shows him to be wanting in moral character, honesty, probity or good demeanor.lix[29] ACCORDINGLY, in view of the foregoing, the Court finds respondent GUILTY of Gross Immoral Conduct and ordered to suffer INDEFINITE SUSPENSION from the practice of law. Let a copy of this Decision be attached to Atty. Castillos personal record in the Office of the Bar Confidant and a copy thereof be furnished the IBP and all courts throughout the country. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur. Ynares-Santiago and Corona, JJ., on leave.

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Republic of the Philippines SUPREME COURT Manila THIRD DIVISION A.C. No. 6313 September 7, 2006

CATHERINE JOIE P. VITUG, complainant, vs. ATTY. DIOSDADO M. RONGCAL, respondent. DECISION TINGA, J.: The allegations raised in this complaint for disbarment are more sordid, if not tawdry, from the usual. As such, close scrutiny of these claims is called for. Disbarment and suspension of a lawyer, being the most severe forms of disciplinary sanction, should be imposed with great caution and only in those cases where the misconduct of the lawyer as an officer of the court and a member of the bar is established by clear, convincing and satisfactory proof.1 Under consideration is the administrative complaint for disbarment filed by Catherine Joie P. Vitug (complainant) against Atty. Diosdado M. Rongcal (respondent). A classic case of "he said, she said," the parties' conflicting versions of the facts as culled from the records are hereinafter presented. Complainant narrates that she and respondent met sometime in December 2000 when she was looking for a lawyer to assist her in suing Arnulfo Aquino ("Aquino"), the biological father of her minor daughter, for support. Her former classmate who was then a Barangay Secretary referred her to respondent. After several meetings with complainant, respondent sent a demand letter2 in her behalf to Aquino wherein he asked for the continuance of the monthly child support Aquino used to give, plus no less than P300,000.00 for the surgical operation their daughter would need for her congenital heart ailment. At around this point, by complainant's own admission, she and respondent started having a sexual relationship. She narrates that this twist in the events began after respondent started calling on her shortly after he had sent the demand letter in her behalf. Respondent allegedly started courting her, giving her financial aid. Soon he had progressed to making sexual advances towards complainant, to the accompaniment of sweet inducements such as the promise of a job, financial security for her daughter, and his services as counsel for the prospective claim for support against Aquino. Complainant acknowledges that she succumbed to these advances, assured by respondent's claim that the lawyer was free to marry her, as his own marriage had already been annulled. On 9 February 2001, respondent allegedly convinced complainant to sign an Affidavit of Disclaimer3 ("Affidavit") categorically stating that even as Aquino was denoted as the father in the birth certificate4 of her daughter, he was, in truth, not the real father. She was not allowed to read the contents of the Affidavit, she claims. Respondent supposedly assured her that the document meant nothing, necessary as it was the only way that Aquino would agree to give her daughter medical and educational support. Respondent purportedly assured complainant that despite the Affidavit, she could still pursue a case against Aquino in the future because the Affidavit is not a public document. Because she completely trusted him at this point, she signed the document "without even taking a glance at it."5 On 14 February 2001, respondent allegedly advised complainant that Aquino gave him P150,000.00 cash and P58,000.00 in two (2) postdated checks to answer for the medical expenses of her daughter. Instead of turning them over to her, respondent handed her his personal check6 in the amount of P150,000.00 and promised to give her the balance of P58,000.00 soon thereafter. However, sometime in April or May 2001,

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respondent informed her that he could not give her the said amount because he used it for his political campaign as he was then running for the position of Provincial Board Member of the 2nd District of Pampanga. Complainant maintains that inspite of their sexual relationship and the fact that respondent kept part of the money intended for her daughter, he still failed in his promise to give her a job. Furthermore, he did not file the case against Aquino and referred her instead to Atty. Federico S. Tolentino, Jr. ("Atty. Tolentino"). Sometime in 2002, assisted by Atty. Tolentino, complainant filed a criminal case for child abuse as well as a civil case against Aquino. While the criminal case was dismissed, the civil case was decided on 30 August 2004 by virtue of a compromise agreement.7 It was only when said cases were filed that she finally understood the import of the Affidavit. Complainant avers that respondent failed to protect her interest when he personally prepared the Affidavit and caused her to sign the same, which obviously worked to her disadvantage. In making false promises that all her problems would be solved, aggravated by his assurance that his marriage had already been annulled, respondent allegedly deceived her into yielding to his sexual desires. Taking advantage of the trust and confidence she had in him as her counsel and paramour, her weak emotional state, and dire financial need at that time, respondent was able to appropriate for himself money that rightfully belonged to her daughter. She argues that respondent's aforementioned acts constitute a violation of his oath as a lawyer as well as the Code of Professional Responsibility ("Code"), particularly Rule 1.01, Rule 1.02, Rule 16.01, Rule 16.02, and Canon 7.8 Hence, she filed the instant complaint9 dated 2 February 2004. Expectedly, respondent presents a different version. According to him, complainant needed a lawyer who would file the aforementioned action for support. Complainant's former high school classmate Reinilda Bansil Morales, who was also his fellow barangay official, referred her to him. He admits sending a demand letter to her former lover, Aquino, to ask support for the child.10 Subsequently, he and Aquino communicated through an emissary. He learned that because of Aquino's infidelity, his relationship with his wife was strained so that in order to settle things the spouses were willing to give complainant a lump sum provided she would execute an affidavit to the effect that Aquino is not the father of her daughter. Respondent relayed this proposal to complainant who asked for his advice. He then advised her to study the proposal thoroughly and with a practical mindset. He also explained to her the pros and cons of pursuing the case. After several days, she requested that he negotiate for an out-of-court settlement of no less than P500,000.00. When Aquino rejected the amount, negotiations ensued until the amount was lowered to P200,000.00. Aquino allegedly offered to issue four postdated checks in equal amounts within four months. Complainant disagreed. Aquino then proposed to rediscount the checks at an interest of 4% a month or a total of P12,000.00. The resulting amount was P188,000.00. Complainant finally agreed to this arrangement and voluntarily signed the Affidavit that respondent prepared, the same Affidavit adverted to by complainant. He denies forcing her to sign the document and strongly refutes her allegation that she did not know what the Affidavit was for and that she signed it without even reading it, as he gave her the draft before the actual payment was made. He notes that complainant is a college graduate and a former bank employee who speaks and understands English. He likewise vehemently denies pocketing P58,000.00 of the settlement proceeds. When complainant allegedly signed the Affidavit, the emissary handed to her the sum of P150,000.00 in cash and she allegedly told respondent that he could keep the remaining P38,000.00, not P58,000.00 as alleged in the complaint. Although she did not say why, he assumed that it was for his attorney's fees. As regards their illicit relationship, respondent admits of his sexual liaison with complainant. He, however, denies luring her with sweet words and empty promises. According to him, it was more of a "chemistry of (sic) two consensual (sic) adults,"11 complainant then being in her thirties. He denies that he tricked her into believing that his marriage was already annulled. Strangely, respondent devotes considerable effort to demonstrate that complainant very well knew he was married when they commenced what was to him, an extra-marital liaison. He points out that, first, they had met through his colleague, Ms. Morales, a friend and former high school classmate of hers. Second, they had allegedly first met at his residence where she was

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actually introduced to his wife. Subsequently, complainant called his residence several times and actually spoke to his wife, a circumstance so disturbing to respondent that he had to beg complainant not to call him there. Third, he was the Punong Barangay from 1994 to 2002, and was elected President of the Association of Barangay Council ("ABC") and as such was an ex-officio member of the Sangguniang Bayan of Guagua, Pampanga. He ran for the position of Provincial Board Member in 2001. Thus, he was known in his locality and it was impossible for complainant not to have known of his marital status especially that she lived no more than three (3) kilometers away from his house and even actively helped him in his campaign. Respondent further alleges that while the demand for support from Aquino was being worked out, complainant moved to a rented house in Olongapo City because a suitor had promised her a job in the Subic Naval Base. But months passed and the promised job never came so that she had to return to Lubao, Pampanga. As the money she received from Aquino was about to be exhausted, she allegedly started to pester respondent for financial assistance and urged him to file the Petition for Support against Aquino. While respondent acceded to her pleas, he also advised her "to look for the right man"12 and to stop depending on him for financial assistance. He also informed her that he could not assist her in filing the case, as he was the one who prepared and notarized the Affidavit. He, however, referred her to Atty. Tolentino. In August 2002, respondent finally ended his relationship with complainant, but still he agreed to give her monthly financial assistance of P6,000.00 for six (6) months. Since then, they have ceased to meet and have communicated only through an emissary or by cellphone. In 2003, complainant begged him to continue the assistance until June when her alleged fianc from the United States would have arrived. Respondent agreed. In July 2003, she again asked for financial assistance for the last time, which he turned down. Since then he had stopped communicating to her. Sometime in January 2004, complainant allegedly went to see a friend of respondent. She told him that she was in need of P5,000.00 for a sari-sari store she was putting up and she wanted him to relay the message to respondent. According to this friend, complainant showed him a prepared complaint against respondent that she would file with the Supreme Court should the latter not accede to her request. Sensing that he was being blackmailed, respondent ignored her demand. True enough, he alleges, she filed the instant complaint. On 21 July 2004, the case was referred to the Integrated Bar of the Philippines ("IBP") for investigation, report and recommendation.13 After the parties submitted their respective position papers and supporting documents, the Investigating Commissioner rendered his Report and Recommendation14 dated 2 September 2005. After presenting the parties' conflicting factual versions, the Investigating Commissioner gave credence to that of complainant and concluded that respondent clearly violated the Code, reporting in this wise, to wit: Respondent, through the above mentioned acts, clearly showed that he is wanting in good moral character, putting in doubt his professional reputation as a member of the BAR and renders him unfit and unworthy of the privileges which the law confers to him. From a lawyer, are (sic) expected those qualities of truth-speaking, high sense of honor, full candor, intellectual honesty and the strictest observance of fiduciary responsibility all of which throughout the passage of time have been compendiously described as MORAL CHARACTER. Respondent, unfortunately took advantage and (sic) every opportunity to entice complainant to his lascivious hungerness (sic). On several occasions[,] respondent kept on calling complainant and dropped by her house and gave P2,000.00 as aid while waiting allegedly for the reply of (sic) their demand letter for support. It signals the numerous visits and regular calls all because of [l]ewd design. He took advantage of her seeming financial woes and emotional dependency. xxxx

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Without doubt, a violation of the high moral standards of the legal profession justifies the impositions (sic) of the appropriate penalty, including suspension and disbarment. x x x15 It was then recommended that respondent be suspended from the practice of law for six (6) months and that he be ordered to return to complainant the amount of P58,000.00 within two months. The IBP Board of Governors adopted and approved the said Report and Recommendation in a Resolution16 dated 17 December 2005, finding the same to be fully supported by the evidence on record and the applicable laws and rules, and "considering Respondent's obviously taking advantage of the lawyer-client relationship and the financial and emotional problem of his client and attempting to mislead the Commission,"17 respondent was meted out the penalty of suspension for one (1) year with a stern warning that a repetition of similar acts will merit severe sanctions. He was likewise ordered to return P58,000.00 to complainant. Respondent filed a Motion for Reconsideration with Motion to Set Case for Clarificatory Questioning18 ("Motion") dated 9 March 2006 with the IBP and a Motion to Reopen/Remand Case for Clarificatory Questioning dated 22 March 2006 with the Supreme Court. He reiterates his own version of the facts, giving a more detailed account of the events that transpired between him and complainant. Altogether, he portrays complainant as a shrewd and manipulative woman who depends on men for financial support and who would stop at nothing to get what she wants. Arguing that the IBP based its Resolution solely on complainant's bare allegations that she failed to prove by clear and convincing evidence, he posits the case should be re-opened for clarificatory questioning in order to determine who between them is telling the truth. In a Resolution19 dated 27 April 2006, the IBP denied the Motion on the ground that it has no more jurisdiction over the case as the matter had already been endorsed to the Supreme Court. While we find respondent liable, we adjudicate the matter differently from what the IBP has recommended. On the charge of immorality, respondent does not deny that he had an extra-marital affair with complainant, albeit brief and discreet, and which act is not "so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree"20 in order to merit disciplinary sanction. We disagree. One of the conditions prior to admission to the bar is that an applicant must possess good moral character. Said requirement persists as a continuing condition for the enjoyment of the privilege of law practice, otherwise, the loss thereof is a ground for the revocation of such privilege.21 As officers of the court, lawyers must not only in fact be of good moral character but must also be seen to be of good moral character and leading lives in accordance with the highest moral standards of the community.22 The Court has held that to justify suspension or disbarment the act complained of must not only be immoral, but grossly immoral.23 A grossly immoral act is one that is so corrupt and false as to constitute a criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree.24 It is a willful, flagrant, or shameless act that shows a moral indifference to the opinion of the good and respectable members of the community.25 While it is has been held in disbarment cases that the mere fact of sexual relations between two unmarried adults is not sufficient to warrant administrative sanction for such illicit behavior,26 it is not so with respect to betrayals of the marital vow of fidelity.27 Even if not all forms of extra-marital relations are punishable under penal law, sexual relations outside marriage is considered disgraceful and immoral as it manifests deliberate disregard of the sanctity of marriage and the marital vows protected by the Constitution and affirmed by our laws.28 By his own admission, respondent is obviously guilty of immorality in violation of Rule 1.01 of the Code which states that a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. The next question to consider is whether this act is aggravated by his alleged deceitful conduct in luring complainant who was then in low spirits and in dire financial need in order to satisfy his carnal desires. While the IBP concluded the question in the affirmative, we find otherwise. Complainant's allegations that she succumbed to respondent's sexual advances due to his promises of financial security and because of her need for legal assistance in filing a case against her former lover, are

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insufficient to conclude that complainant deceived her into having sexual relations with her. Surely, an educated woman like herself who was of sufficient age and discretion, being at that time in her thirties, would not be easily fooled into sexual congress by promises of a job and of free legal assistance, especially when there is no showing that she is suffering from any mental or physical disability as to justify such recklessness and/or helplessness on her part.29 Respondent's numerous visits and regular calls to complainant do not necessarily prove that he took advantage of her. At best, it proves that he courted her despite being a married man, precisely the fact on which the finding of immorality is rooted. Moreover, the circumstance that he gave her P2,000.00 as aid does not induce belief that he fueled her financial dependence as she never denied pleading with, if not badgering, him for financial support. Neither does complainant's allegation that respondent lied to her about his marital status inspire belief. We find credence in respondent's assertion that it was impossible for her not to have known of his subsisting marriage. She herself admitted that they were introduced by her friend and former classmate, Ms. Morales who was a fellow barangay official of respondent. She admitted that she knew his residence phone number and that she had called him there. She also knew that respondent is an active barangay official who even ran as Provincial Board Member in 2001. Curiously, she never refuted respondent's allegations that she had met and talked to his wife on several occasions, that she lived near his residence, that she helped him in his campaign, or that she knew a lot of his friends, so as not to have known of his marital status. Considering that she previously had an affair with Aquino, who was also a married man, it would be unnatural for her to have just plunged into a sexual relationship with respondent whom she had known for only a short time without verifying his background, if it were true that she preferred "to change [her] life for the better,"30 as alleged in her complaint. We believe that her aforementioned allegations of deceit were not established by clear preponderant evidence required in disbarment cases.31 We are left with the most logical conclusion that she freely and wittingly entered into an illicit and immoral relationship with respondent sans any misrepresentation or deceit on his part. Next, complainant charged respondent of taking advantage of his legal skills and moral control over her to force her to sign the clearly disadvantageous Affidavit without letting her read it and without explaining to her its repercussions. While acting as her counsel, she alleged that he likewise acted as counsel for Aquino. We find complainant's assertions dubious. She was clearly in need of financial support from Aquino especially that her daughter was suffering from a heart ailment. We cannot fathom how she could abandon all cares to respondent who she had met for only a couple of months and thereby risk the welfare of her child by signing without even reading a document she knew was related to the support case she intended to file. The Affidavit consists of four short sentences contained in a single page. It is unlikely she was not able to read it before she signed it. Likewise obscure is her assertion that respondent did not fully explain to her the contents of the Affidavit and the consequences of signing it. She alleged that respondent even urged her "to use her head as Arnulfo Aquino will not give the money for Alexandra's medical and educational support if she will not sign the said Affidavit of Disclaimer."32 If her own allegation is to be believed, it shows that she was aware of the on-going negotiation with Aquino for the settlement of her claim for which the latter demanded the execution of the Affidavit. It also goes to show that she was pondering on whether to sign the same. Furthermore, she does not deny being a college graduate or that she knows and understands English. The Affidavit is written in short and simple sentences that are understandable even to a layman. The inevitable conclusion is that she signed the Affidavit voluntarily and without any coercion whatsoever on the part of respondent. The question remains as to whether his act of preparing and notarizing the Affidavit, a document disadvantageous to his client, is a violation of the Code. We rule in the negative. It was not unlawful for respondent to assist his client in entering into a settlement with Aquino after explaining all available options to her. The law encourages the amicable settlement not only of pending cases but also of disputes which might otherwise be filed in court.33 Moreover, there is no showing that he knew for sure that Aquino is the father of complainant's daughter as paternity remains to be proven. As complainant voluntarily and intelligently agreed to a settlement with Aquino, she cannot later blame her counsel when she experiences a change of heart. Besides, the record is bereft of evidence as to whether

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respondent also acted as Aquino's counsel in the settlement of the case. Again, we only have complainant's bare allegations that cannot be considered evidence.34 Suspicion, no matter how strong, is not enough. In the absence of contrary evidence, what will prevail is the presumption that the respondent has regularly performed his duty in accordance with his oath.35 Complainant further charged respondent of misappropriating part of the money given by Aquino to her daughter. Instead of turning over the whole amount, he allegedly issued to her his personal check in the amount of P150,000.00 and pocketed the remaining P58,000.00 in violation of his fiduciary obligation to her as her counsel. The IBP did not make any categorical finding on this matter but simply ordered respondent to return the amount of P58,000.00 to complainant. We feel a discussion is in order. We note that there is no clear evidence as to how much Aquino actually gave in settlement of complainant's claim for support. The parties are in agreement that complainant received the amount of P150,000.00. However, complainant insists that she should have received more as there were two postdated checks amounting to P58,000.00 that respondent never turned over to her. Respondent essentially agrees that the amount is in fact more than P150,000.00 but only P38,000.00 more and complainant said he could have it and he assumed it was for his attorney's fees. We scrutinized the records and found not a single evidence to prove that there existed two postdated checks issued by Aquino in the amount of P58,000.00. On the other hand, respondent admits that there is actually an amount of P38,000.00 but presented no evidence of an agreement for attorney's fees to justify his presumption that he can keep the same. Curiously, there is on record a photocopy of a check issued by respondent in favor of complainant for P150,000.00. It was only in his Motion for Reconsideration where respondent belatedly proffers an explanation. He avers that he cannot recall what the check was for but he supposes that complainant requested for it as she did not want to travel all the way to Olongapo City with a huge sum of money. We find the circumstances rather suspicious but evidence is wanting to sustain a finding in favor of either party in this respect. We cannot and should not rule on mere conjectures. The IBP relied only on the written assertions of the parties, apparently finding no need to subject the veracity of the assertions through the question and answer modality. With the inconclusive state of the evidence, a more in-depth investigation is called for to ascertain in whose favor the substantial evidence level tilts. Hence, we are constrained to remand the case to the IBP for further reception of evidence solely on this aspect. We also are unable to grant complainant's prayer for respondent to be made liable for the cost of her child's DNA test absent proof that he misappropriated funds exclusively earmarked for the purpose. Neither shall we entertain complainant's claim for moral damages and attorney's fees. Suffice it to state that an administrative case against a lawyer is sui generis, one that is distinct from a civil or a criminal action.36 It is an investigation by the Court into the fitness of a lawyer to remain in the legal profession and be allowed the privileges as such. Its primary objective is to protect the Court and the public from the misconduct of its officers with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice by requiring that those who exercise this important function shall be competent, honorable and reliable men and women in whom courts and clients may repose confidence.37 As such, it involves no private interest and affords no redress for private grievance.38 The complainant or the person who called the attention of the court to the lawyer's alleged misconduct is in no sense a party, and has generally no interest in the outcome except as all good citizens may have in the proper administration of justice.39 Respondent's misconduct is of considerable gravity. There is a string of cases where the Court meted out the extreme penalty of disbarment on the ground of gross immorality where the respondent contracted a bigamous marriage,40 abandoned his family to cohabit with his paramour,41 cohabited with a married woman,42 lured an innocent woman into marriage,43 or was found to be a womanizer.44 The instant case can be easily differentiated from the foregoing cases. We, therefore, heed the stern injunction on decreeing

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disbarment where any lesser penalty, such as temporary suspension, would accomplish the end desired.45 In Zaguirre v. Castillo,46 respondent was found to have sired a child with another woman who knew he was married. He therein sought understanding from the Court pointing out the polygamous nature of men and that the illicit relationship was a product of mutual lust and desire. Appalled at his reprehensible and amoral attitude, the Court suspended him indefinitely. However, in Fr. Sinnott v. Judge Barte,47 where respondent judge consorted with a woman not his wife, but there was no conclusive evidence that he sired a child with her, he was fined P10,000.00 for his conduct unbecoming a magistrate despite his retirement during the pendency of the case. We note that from the very beginning of this case, herein respondent had expressed remorse over his indiscretion and had in fact ended the brief illicit relationship years ago. We take these as signs that his is not a character of such severe depravity and thus should be taken as mitigating circumstances in his favor.48 Considering further that this is his first offense, we believe that a fine of P15,000.00 would suffice. This, of course, is without prejudice to the outcome of the aspect of this case involving the alleged misappropriation of funds of the client. WHEREFORE, premises considered, we find Atty. Diosdado M. Rongcal GUILTY of immorality and impose on him a FINE of P15,000.00 with a stern warning that a repetition of the same or similar acts in the future will be dealt with more severely. The charge of misappropriation of funds of the client is REMANDED to the IBP for further investigation, report and recommendation within ninety (90) days from receipt of this Decision. Let a copy of this decision be entered in the personal record of respondent as an attorney and as a member of the Bar, and furnished the Bar Confidant, the Integrated Bar of the Philippines and the Court Administrator for circulation to all courts in the country. SO ORDERED. Quisumbing, Chairperson, Carpio, Carpio-Morales, Velasco, Jr., J.J., , concur.

Footnotes
1

Buado v. Layag, A.C. No. 5182, August 12, 2004, 436 SCRA 159; Berbano v. Barcelona, A.C. No. 6084, September 3, 2003, 410 SCRA 258.
2

Rollo, p. 5; The demand letter is dated 5 January 2000 but both parties admit that the same should read 5 January 2001.
3

Id. at 6. Id. at 40-41. Id. at 2. Id. at 7. Id. at 51-52.

The Complainant charges respondent of violating the following rules of the Code of Conduct of Professional Responsibility:

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Canon 1, Rule 1.01 A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. Canon 1, Rule 1.02 A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system. Canon 7 A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR. Canon 16, Rule 16.01 A lawyer shall account for all money or property collected or received for or from the client. Canon 16, 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.
9

Rollo, pp. 1-7. Id. at 12. Id. at 14. Id. Id. at 25. Id. at 77-83. Id. at 81-83. Id. at 76. Id. Id. at 99-130.

10

11

12

13

14

15

16

17

18

19

IBP Resolution dated 27 April 2006 filed with the Office of the Bar Confidant on 20 June 2006.
20

Rollo, p. 56. Royong v. Oblena, 117 Phil. 865 (1963). Tolosa v. Cargo, A.C. No. 2385, 8 March 1989, 171 SCRA 21, 26. Figueroa v. Barranco, Jr., 342 Phil. 408, 412 (1997). Id. Id.

21

22

23

24

25

26

See Ui v. Atty. Bonifacio, 388 Phil. 691 (2000); See also Concerned Employee v. Mayor, A.M. No. P-02-1564, 23 November 2004, 443 SCRA 448, 457.

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27

Id. at 461. Id. at 461-462.

28

29

The operative circumstances in Cojuangco, Jr. v. Palma, A.C. No. 2474, 15 September 2004, 438 SCRA 306, are markedly different from those obtaining in the present case.
30

Rollo, p. 2. Concepcion v. Atty. Fandio, Jr., 389 Phil. 474 (2000). Rollo, p. 34. De Guzman v. Court of Appeals, 329 Phil. 168, 173 (1996). See Rodriguez v. Valencia and Rodriguez, 81 Phil. 787 (1948). In re De Guzman, 154 Phil. 127, 133 (1974). In re Almacen, No. L-27654, 18 February 1970, 31 SCRA 562, 600.

31

32

33

34

35

36

37

Roldan v. Panganiban, A.C. No. 4552, 14 December 2004, 446 SCRA 249; Rivera v. Atty. Corral, 433 Phil. 331 (2002) ; In re Almacen, supra.
38

De Ere v. Rubi, 378 Phil. 377 (1999). Tajan v. Cusi, Jr., 156 Phil. 128, 134 (1974). Tucay v. Atty. Tucay, 376 Phil. 336 (1999); Villasanta v. Peralta, 101 Phil. 313 (1957). Obusan v. Obusan, Jr., 213 Phil. 437 (1984); Toledo v. Toledo, 117 SCRA 768 (1963). Royong v. Oblena, supra note 21. Cojuangco, Jr. v. Palma, supra note 29; Cabrera v. Agustin, 106 Phil. 256 (1960). Dantes v. Dantes, A.C. No. 6486, 22 September 2004, 438 SCRA 582. In re Almacen, supra. A.C. No. 4921, 6 March 2003, 398 SCRA 658. 423 Phil. 522 (2001). See Alitagtag v. Atty. Garcia, 451 Phil. 420 (2003).

39

40

41

42

43

44

45

46

47

48

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Republic of the Philippines SUPREME COURT Manila EN BANC A.C. No. 932 June 21, 1940

In re ATTY. ROQUE SANTIAGO, respondent, Office of the Solicitor-General Ozaeta as petitioner-complainant. LAUREL, J.: This is an administrative case initiated upon complaint of the Solicitor-General against the respondent Roque Santiago, charging the latter with malpractice and praying that disciplinary action be taken against him. It appears that one Ernesto Baniquit, who was living then separately from his wife Soledad Colares for some nine consecutive years and who was bent on contracting a second marriage, sought the legal advice of the respondent, who was at the time a practicing and notary public in the Province of Occidental Negros. The respondent, after hearing Baniquit's side of the case, assured the latter that he could secure a separation from his wife and marry again, and asked him to bring his wife on the afternoon of the same day, May 29, 1939. This was done and the respondent right then and there prepared the document Exhibit A in which it was stipulated, among other things, that the contracting parties, who are husband and wife authorized each other to marry again, at the same time renouncing or waiving whatever right of action one might have against the party so marrying. After the execution and acknowledgment of Exhibit A by the parties, the respondent asked the spouses to shake hands and assured them that they were single and as such could contract another and subsequent marriage. Baniquit then remarked, "Would there be no trouble?" Upon hearing it the respondent stood up and, pointing to his diploma hanging on the wall, said: "I would tear that off if this document turns out not to be valid." Relying on the validity of Exhibit A, Ernesto Baniquit, on June 11, 1939, contracted a second marriage with Trinidad Aurelio. There is also evidence to show that the respondent tried to collect for this service the sum of P50, but as the evidence on this point is not clear and the same is not material in the resolution of the present case, we do not find it necessary to make any express finding as to whether the full amount or any portion thereof was paid or, as contended by the respondent, the service were rendered free of charge. The respondent did not deny the preparation of Exhibit A, put up the defense that he had the idea that seven years separation of husband and wife would entitle either of them to contract a second marriage and for that reason prepared Exhibit A, but immediately after the execution of said document he realized that he had made a mistake and for that reason immediately sent for the contracting parties who, on June 30, 1939, came to his office and signed the deed of cancellation Exhibit A. There is no doubt that the contract Exhibit A executed by and between the spouses Ernesto Baniquit and Soledad Colares upon the advice of the respondent and prepared by the latter as a lawyer and acknowledged by him as a notary public is contrary to law, moral, and tends to subvert the vital foundation of the family. The advice given by the respondent, the preparation and acknowledgment by him of the contract constitute malpractice which justifies disbarment from the practice of law. The admission of a lawyer to the practice of law is upon the implied condition that his continued enjoyment of the privilege conferred is dependent upon his remaining a fit and safe person to society. When it appears that he, by recklessness or sheer ignorance of the law, is unfit or unsafe to be entrusted with the responsibilities and obligations of a lawyer, his right to continue in the enjoyment of this professional privilege should be declared terminated. In the present case, respondent was either ignorant of the applicable provision of the law or carelessly negligent in giving the complainant legal advice. Drastic action should lead to his disbarment and this is the opinion of some members of the court. The majority, however, have inclined to follow the recommendation

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of the investigator, the Honorable Sotero Rodas, in view of the circumstances stated in the report of said investigator and the fact that immediately after discovering his mistakes, respondent endeavored to correct it by making the parties sign another document cancelling the previous one. The respondent Roque Santiago is found guilty of malpractice and is hereby suspended from the practice of law for a period of one year. So ordered. Avancea, C.J., Imperial, Diaz, Concepcion and Moran, JJ., concur.

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Republic of the Philippines SUPREME COURT Manila THIRD DIVISION A.C. No. 6968 August 9, 2006

ATTY. ORLANDO V. DIZON, Complainant, vs. ATTY. MARICHU C. LAMBINO, Respondent. x-----------------------------------------x ATTY. MARICHU C. LAMBINO, Complainant, vs. ATTY. ORLANDO V. DIZON, Respondent. DECISION CARPIO MORALES, J.: The killing during a rumble on December 8, 1994 of University of the Philippines (UP) graduating student Dennis Venturina, the chairperson of the UP College of Public Administration Student Council, drew the then Chancellor of UP Diliman Roger Posadas to seek the assistance of the National Bureau of Investigation (NBI). Acting on the request of Chancellor Posadas, Atty. Orlando Dizon, then Chief of the Special Operations Group (SOG) of the NBI, together with his men, repaired to the Office of Col. Eduardo Bentain, head of the UP Security Force on December 12, 1994. As two student-suspects in the killing, Francis Carlo Taparan and Raymundo Narag, were at the time in the office of Col. Bentain, Atty. Dizon requested to take them into his custody. Atty. Marichu Lambino, Legal Counsel of UP Diliman, who repaired to the Office of Col. Bentain, advised against Atty. Dizons move, however, he not being armed with a warrant for their arrest. Chancellor Posadas and Vice Chancellor for students Rosario Torres-Yu, who also repaired to the office of the colonel, joined Atty. Lambino in opposing the turn-over of the suspects to Atty. Dizon, despite the latters claim that under its Charter the NBI was authorized to make warrantless arrests. The suspects lawyer, one Atty. Villamor, later also showed up at the office of Col. Bentain and after what appeared to be a heated discussion between Atty. Dizon and the UP officials, the students were allowed to go back to their dormitories, with Atty. Villamor undertaking to accompany them to the NBI the following morning. The two student-suspects were eventually indicted in court. Hence, spawned the filing of a complaint by Atty. Dizon against Atty. Lambino before the Integrated Bar of the Philippines (IBP), for violation of Canon 1, Rules 1.1 to 1.3 of the Code of Professional Responsibility, docketed asCBD Case No. 346. Atty. Dizon had earlier filed a criminal complaint also against Atty. Lambino, together with Chancellor Posadas and Vice Chancellor Torres-Yu and Col. Bentain, before the Ombudsman, for violation of P.D. 1829 which makes it unlawful for anyone to obstruct the apprehension and prosecution of criminal offenses.

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Atty. Lambino in turn charged Atty. Dizon before the IBP with violation of the Code of Professional Responsibility, specifically Canon 1, Rule 1.01, 1.02, and 1.03; Canon 6, Rules 6.01 and 6.02; and Canon 8, Rule 8.01, docketed as CBD Case No. 373. The administrative cases were, on motion of Atty. Lambino, consolidated. Before the IBP Commission on Bar Discipline (CBD), the issues were defined as follows: 1. Whether the act of Atty. Lambino in refusing to turn over the suspected students to the group of Atty. Dizon constitutes violation of Code of Professional Responsibility. 2. Whether the act of Atty. Dizon in trying to arrest the student-suspects constitutes violation of the Code of Professional Responsibility. By Report and Recommendation submitted to the Board of Governors of the IBP on June 20, 2005, CBD Investigating Commissioner Siegfrid B. Mison recommended the dismissal of the complaint against Atty. Lambino in light of a finding that she "acted within her official duties as she safeguarded the rights of the students in accordance with the schools substitute parental authority" and "within the bounds of the law as the NBI agents had no warrants of arrest." With respect to the complaint against Atty. Dizon, the Commissioner recommended to reprimand him for violating the Code of Professional Responsibility in "recklessly tr[ying] to arrest" the suspects without warrant. The IBP Board of Governors, by Resolution of October 22, 2005, adopted and approved the Commissioners Report. The IBP thereupon transferred to this Court its Notice of Resolution, together with the records of the cases which this Court noted by Resolution of February 1, 2006. As earlier stated, the issue against Atty. Lambino is whether she violated the Canons of Professional Ethics in "refusing to turn over the suspected students to the group of Atty. Dizon." When the complaint of Atty. Dizon before the Ombudsman against Chancellor Posadas, Vice Chancellor Torres-Yu and Atty. Lambino was elevated on Certiorari and Prohibition, this Court addressing in the negative the two issues raised therein, to wit: (1) Whether the attempted arrest of the student suspects by the NBI could be validly made without a warrant; and (2) Whether there was probable cause for prosecuting petitioner for violation of P.D. No. 1829. x x x,1 held that the objection of the said UP officials to the arrest of the students "cannot be construed as a violation of P.D. No. 1829, Sec. 1 (c) without rendering it unconstitutional,"2 they having "a right to prevent the arrest [of the students] at the time because their attempted arrest was illegal."3 Indeed, Atty. Lambino was legally justified in advising against the turn over of the suspects to Atty. Dizon, there being no basis for him to effect a warrantless arrest. Atty. Dizons administrative complaint against her must then be dismissed. Respecting the complaint against Atty. Dizon, this Court, also in Posadas v. Ombudsman, held that "[f]or the failure of the NBI agents to comply with the constitutional and procedural requirements, . . . their attempt to arrest [the two student-suspects] without a warrant was illegal."4 In the main, Atty. Dizon invoked Section 1 (a) of Republic Act 157 (The NBI Charter) which empowers the NBI "to undertake investigations of crimes and other offenses against the laws of the Philippines, upon its own initiative and as public interest may require"5 and to make arrests. The invocation does not impress. Said section does not grant the NBI the power to make warrantless arrests. The NBI Charter clearly qualifies the power to make arrests to be "in accordance with existing laws and rules."

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Members of the investigation staff of the Bureau of Investigation shall be peace officers, and as such have the following powers: (a) To make arrests, searches and seizures in accordance with existing laws and rules.6 x x x x (Emphasis supplied) By persisting in his attempt to arrest the suspected students without a warrant, Atty. Dizon violated Rule 1.02 of Canon 1 of the Code of Professional Responsibility which provides: CANON 1 A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND LEGAL PROCESSES. xxxx Rule 1.02 A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system. (Emphasis supplied). WHEREFORE, CBD Case No. 346 against Atty. Marichu C. Lambino is DISMISSED. Atty. Orlando V. Dizon is, in CBD Case No. 373, found guilty of violation of Canon 1 of Rule 1.02 of the Code of Professional Responsibility and is REPRIMANDED and WARNED that a repetition of the same or similar infraction shall be dealt with more severely. Let a copy of this Decision be furnished the Office of the Bar Confidant, the National Bureau of Investigation, and the Department of Justice. SO ORDERED. CONCHITA CARPIO MORALES Associate Justice WE CONCUR: LEONARDO A. QUISUMBING Associate Justice Chairperson ANTONIO T. CARPIO Associate Justice DANTE O. TINGA Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

Footnotes
1

Posadas v. Ombudsman, 395 Phil. 601, 609-610 (2000). Id. at 617. Ibid.

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4

Id. at 613. Republic Act 157, Section 1(a) and (b). Id. at Section 5. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

A.C. No. 6057

June 27, 2006

PETER T. DONTON, Complainant, vs. ATTY. EMMANUEL O. TANSINGCO, Respondent. DECISION CARPIO, J.: The Case This is a disbarment complaint against respondent Atty. Emmanuel O. Tansingco ("respondent") for serious misconduct and deliberate violation of Canon 1,1 Rules 1.012 and 1.023 of the Code of Professional Responsibility ("Code"). The Facts In his Complaint dated 20 May 2003, Peter T. Donton ("complainant") stated that he filed a criminal complaint for estafa thru falsification of a public document4 against Duane O. Stier ("Stier"), Emelyn A. Maggay ("Maggay") and respondent, as the notary public who notarized the Occupancy Agreement. The disbarment complaint arose when respondent filed a counter-charge for perjury5 against complainant. Respondent, in his affidavit-complaint, stated that: 5. The OCCUPANCY AGREEMENT dated September 11, 1995 was prepared and notarized by me under the following circumstances: A. Mr. Duane O. Stier is the owner and long-time resident of a real property located at No. 33 Don Jose Street, Bgy. San Roque, Murphy, Cubao, Quezon City. B. Sometime in September 1995, Mr. Stier a U.S. citizen and thereby disqualified to own real property in his name agreed that the property be transferred in the name of Mr. Donton, a Filipino. C. Mr. Stier, in the presence of Mr. Donton, requested me to prepare several documents that would guarantee recognition of him being the actual owner of the property despite the transfer of title in the name of Mr. Donton. D. For this purpose, I prepared, among others, the OCCUPANCY AGREEMENT, recognizing Mr. Stiers free and undisturbed use of the property for his residence and business operations. The OCCUPANCY AGREEMENT was tied up with a loan which Mr. Stier had extended to Mr. Donton.6

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Complainant averred that respondents act of preparing the Occupancy Agreement, despite knowledge that Stier, being a foreign national, is disqualified to own real property in his name, constitutes serious misconduct and is a deliberate violation of the Code. Complainant prayed that respondent be disbarred for advising Stier to do something in violation of law and assisting Stier in carrying out a dishonest scheme. In his Comment dated 19 August 2003, respondent claimed that complainant filed the disbarment case against him upon the instigation of complainants counsel, Atty. Bonifacio A. Alentajan,7 because respondent refused to act as complainants witness in the criminal case against Stier and Maggay. Respondent admitted that he "prepared and notarized" the Occupancy Agreement and asserted its genuineness and due execution. In a Resolution dated 1 October 2003, the Court referred the matter to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. The IBPs Report and Recommendation In her Report dated 26 February 2004 ("Report"), Commissioner Milagros V. San Juan ("Commissioner San Juan") of the IBP Commission on Bar Discipline found respondent liable for taking part in a "scheme to circumvent the constitutional prohibition against foreign ownership of land in the Philippines." Commissioner San Juan recommended respondents suspension from the practice of law for two years and the cancellation of his commission as Notary Public. In Resolution No. XVI-2004-222 dated 16 April 2004, the IBP Board of Governors adopted, with modification, the Report and recommended respondents suspension from the practice of law for six months. On 28 June 2004, the IBP Board of Governors forwarded the Report to the Court as provided under Section 12(b), Rule 139-B8 of the Rules of Court. On 28 July 2004, respondent filed a motion for reconsideration before the IBP. Respondent stated that he was already 76 years old and would already retire by 2005 after the termination of his pending cases. He also said that his practice of law is his only means of support for his family and his six minor children. In a Resolution dated 7 October 2004, the IBP denied the motion for reconsideration because the IBP had no more jurisdiction on the case as the matter had already been referred to the Court. The Ruling of the Court The Court finds respondent liable for violation of Canon 1 and Rule 1.02 of the Code. A lawyer should not render any service or give advice to any client which will involve defiance of the laws which he is bound to uphold and obey.9 A lawyer who assists a client in a dishonest scheme or who connives in violating the law commits an act which justifies disciplinary action against the lawyer.10 By his own admission, respondent admitted that Stier, a U.S. citizen, was disqualified from owning real property.11Yet, in his motion for reconsideration,12 respondent admitted that he caused the transfer of ownership to the parcel of land to Stier. Respondent, however, aware of the prohibition, quickly rectified his act and transferred the title in complainants name. But respondent provided "some safeguards" by preparing several documents,13including the Occupancy Agreement, that would guarantee Stiers recognition as the actual owner of the property despite its transfer in complainants name. In effect, respondent advised and aided Stier in circumventing the constitutional prohibition against foreign ownership of lands14 by preparing said documents. Respondent had sworn to uphold the Constitution. Thus, he violated his oath and the Code when he prepared and notarized the Occupancy Agreement to evade the law against foreign ownership of lands.

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Respondent used his knowledge of the law to achieve an unlawful end. Such an act amounts to malpractice in his office, for which he may be suspended.15 In Balinon v. De Leon,16 respondent Atty. De Leon was suspended from the practice of law for three years for preparing an affidavit that virtually permitted him to commit concubinage. In In re: Santiago,17 respondent Atty. Santiago was suspended from the practice of law for one year for preparing a contract which declared the spouses to be single again after nine years of separation and allowed them to contract separately subsequent marriages. WHEREFORE, we find respondent Atty. Emmanuel O. Tansingco GUILTY of violation of Canon 1 and Rule 1.02 of the Code of Professional Responsibility. Accordingly, we SUSPEND respondent Atty. Emmanuel O. Tansingco from the practice of law for SIX MONTHS effective upon finality of this Decision. Let copies of this Decision be furnished the Office of the Bar Confidant to be appended to respondents personal record as an attorney, the Integrated Bar of the Philippines, the Department of Justice, and all courts in the country for their information and guidance. SO ORDERED. ANTONIO T. CARPIO Associate Justice WE CONCUR: LEONARDO A. QUISUMBING Associate Justice Chairperson CONCHITA CARPIO MORALES Associate Justice DANTE O. TINGA Asscociate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

Footnotes
1

Canon 1--A lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law and legal processes.
2

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 lessening confidence in the legal system.
4

Docketed as I.S. No. 02-2520 before the Office of the City Prosecutor of Marikina City. Docketed as I.S. No. 03-0474. Rollo, pp. 15-16. Emphasis in the original.

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7

Respondent, in turn, filed a disbarment complaint against Atty. Bonifacio A. Alentajan docketed as CBD Case No. 03-112.
8

Section 12(b), Rule 139-B of the Rules of Court provides: SEC. 12. Review and Decision by the Board of Governors.xxx (b) If the Board, by 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.

E. Pineda, Legal and Judicial Ethics 35-36 (1994). In re: Terrell, 2 Phil. 266 (1903). Rollo, p. 15. Id. at 99.

10

11

12

In respondents 30 December 2002 affidavit, he enumerated all the documents he prepared for Stier:
13

A. A Deed of Sale over the property, which Mr. Stier could consolidate in favor of any person of his choice at anytime; [Note: The deed of Sale had an open date, and the name of the transferee was to be indicated by Mr. Stier, at his discretion.] B. Occupancy Agreement, recognizing Mr. Stiers free and undisturbed use of the property for his residence and business operations; [Note: The Occupancy Agreement was tied up with a loan which Mr. Stier had extended to Mr. Donton.] C. Real Estate Mortgage over the property, which Mr. Stier could enforce anytime; and D. Irrevocable Special Power of Attorney to sell, mortgage or lease the property, which Mr. Stier could exercise anytime.
14

Article XII, Section 7 of the 1987 Constitution provides: SEC. 7. Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.

15

In re: Santiago, 70 Phil. 66 (1940). 94 Phil. 277 (1954). Supra.

16

17

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EN BANC ZOILO ANTONIO VELEZ, Complaina nt, versus -

A.C. No. 6697

ATTY. LEONARD S. DE VERA, Responde nt. x------------------------ x

Bar Matter No. 1227

RE: OATH-TAKING OF ATTY. LEONARD S. DE VERA, INCOMING PRESIDENT OF THE INTEGRATED BAR OF THEPHILIPPINES

A.M. No. 05-5-15-SC Present:

PANGANIBAN, C. J., PUNO,

x --------------------- ---x

QUISUMBING, YNARES-SANTIAGO,

IN THE MATTER OF THE REMOVAL OF ATTY. LEONARD S. DE VERA FROM THE IBP BOARD OF GOVERNORS AS EXECUTIVE VICE PRESIDENT AND GOVERNOR

SANDOVAL-GUTIERREZ, CARPIO, MARTINEZ, CORONA, CARPIO MORALES, CALLEJO,

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x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION Per Curiam:

Before Us are three consolidated cases revolving around Integrated Bar of the Philippines (IBP) Governor and Executive Vice-President (EVP) Atty. Leonard de Vera. The first pertains to a disbarment case questioning Atty. de Veras moral fitness to remain as a member of the Philippine Bar, the second refers to Atty. de Veras letterrequest to schedule his oath taking as IBP National President, and the third case concerns the validity of his removal as Governor and EVP of the IBP by the IBP Board. The resolution of these cases will determine the national presidency of the IBP for the term 2005-2007.

A.C. No. 6697

The Office of the Bar Confidant, which this Court tasked to make an investigation, report and recommendation on subject case,[1] summarized the antecedents thereof as follows:
In a Complaint dated 11 April 2005, complainant Zoilo Antonio Velez moved for the suspension and/or disbarment of respondent Atty. Leonard de Vera based on the following grounds: 1) 2) respondents alleged misrepresentation in concealing the suspension order rendered against him by the State Bar of California; and respondents alleged violation of the so-called rotation rule enunciated in Administrative Matter No. 491 dated 06 October 1989 (in the Matter: 1989 IBP Elections).

Complainant averred that the respondent, in appropriating for his own benefit funds due his client, was found to have performed an act constituting moral turpitude by the Hearing Referee Bill Dozier, Hearing Department San Francisco, State Bar of California in Administrative

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Case No. 86-0-18429. Complainant alleged that the respondent was then forced to resign or surrender his license to practice law in the said state in order to evade the recommended three (3) year suspension. Complainant asserted that the respondent lacks the moral competence necessary to lead the countrys most noble profession. Complainant, likewise, contended that the respondent violated the so-called rotation rule provided for in Administrative Matter No. 491 when he transferred to IBP Agusan del Sur Chapter. He claimed that the respondent failed to meet the requirements outlined in the IBP ByLaws pertaining to transfer of Chapter Membership. He surmised that the respondents transfer was intended only for the purpose of becoming the next IBP National President. Complainant prayed that the respondent be enjoined from assuming office as IBP National President. Meanwhile, in his Comment dated 2 May 2005, respondent stated that the issues raised in above-mentioned Complaint were the very issues raised in an earlier administrative case filed by the same complainant against him. In fact, according to him, the said issues were already extensively discussed and categorically ruled upon by this Court in its Decision dated 11 December 2005 in Administrative Case No. 6052 (In Re: Petition to Disqualify Atty. Leonard De Vera). Respondent prayed that the instant administrative complaint be dismissed following the principle of res judicata. On 15 June 2005, both parties appeared before the Office of the Bar Confidant for presentation of evidence in support of their respective allegations. Subsequently, in a Memorandum dated 20 June 2005, complainant maintained that there is substantial evidence showing respondents moral baseness, vileness and depravity, which could be used as a basis for his disbarment. Complainant stressed that the respondent never denied that he used his clients money. Complainant argued that the respondent failed to present evidence that the Supreme Court of California accepted the latters resignation and even if such was accepted, complainant posited that this should not absolve the respondent from liability. Moreover, complainant added that the principle of res judicata would not apply in the case at bar. He asserted that the first administrative case filed against the respondent was one for his disqualification. x x x.

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Bar Matter No. 1227 A.M. No. 05-5-15-SC

As earlier adverted to, Bar Matter No. 1227 refers to Atty. de Veras letter-request to this Court to schedule his oath taking as IBP National President. A.M. No. 05-5-15-SC, on the other hand, is a letter-report dated 19 May 2005 of IBP National President Jose Anselmo I. Cadiz (IBP President Cadiz) furnishing this Court with the IBPs Resolution, dated 13 May 2005, removing Atty. De Vera as member of the IBP Board and as IBP EVP, for committing acts inimical to the IBP Board and the IBP in general.[2] The controversy in Bar Matter No. 1227 and A.M. No. 05-5-15-SC arose from the regular meeting of the IBP Board of Governors held on 14 January 2005. In said meeting, by 2/3 vote (6 voting in favor and 2 against), the IBP Board approved the withdrawal of the Petition filed before this Court docketed as Integrated Bar of the Philippines, Jose Anselmo I. Cadiz, et al. vs. Senate of the Philippines, et al. Petition for Certiorari and Prohibition with Prayer for the Issuance of Temporary Restraining Order or Writ of Preliminary Injunction, SC-R165108. The Petition was intended to question the legality and/or constitutionality of Republic Act No. 9227, authorizing the increase in the salaries of judges and justices, and to increase filing fees.[3]

The two IBP Governors who opposed the said Resolution approving the withdrawal of the above-described Petition were herein respondent Governor and EVP de Vera and Governor Carlos L. Valdez.[4]

On 19 January 2005, IBP President Cadiz informed this Court of the decision taken by the IBP Board to withdraw the afore-mentioned Petition. Attached to his letter was a copy of the IBP Boards 14 January 2005 Resolution.[5]

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On 15 April 2005, Bar Matter No. 1227, pertaining to Atty. de Veras request for oathtaking as National President, was filed. The same was subsequently consolidated with A.C. No. 6697, the disbarment case filed against Atty. de Vera.[6]

On 22 April 2005, a plenary session was held at the 10th National IBP Convention at the CAP-Camp John Hay Convention Center, Baguio City. It was at this forum where Atty. de Vera allegedly made some untruthful statements, innuendos and blatant lies in connection with the IBP Boards Resolution to withdraw the Petition questioning the legality of Republic Act No. 9227.[7]

On 10 May 2005, this Court issued a Temporary Restraining Order (TRO) enjoining Atty. de Vera from assuming office as IBP National President.[8]

On 12 May 2005, IBP Gov. Romulo A. Rivera wrote IBP National President Cadiz a letter wherein he prayed for the removal of Atty. de Vera as member of the IBP Board for having committed acts which were inimical to the IBP Board and the IBP.[9] On 13 May 2005, in the 20th Regular Meeting of the Board held at the Waterfront Hotel, Cebu City, the IBP Board, by 2/3 vote, resolved to remove Atty. de Vera as member of the IBP Board of Governors and as IBP Executive Vice President.[10] Quoted hereunder is the dispositive portion of said Resolution:
NOW THEREFORE, BE IT RESOLVED, AS IT IS HEREBY RESOLVED, that Governor Leonard S. de Vera is REMOVED as a member of the IBP Board of Governors and Executive Vice President for committing acts inimical to the IBP Board of Governors and the IBP, to wit: 1. For making untruthful statements, innuendos and blatant lies in public about the Supreme Court and members of the IBP Board of Governors, during the Plenary Session of the IBP 10th National Convention of Lawyers, held at CAP-Camp John Hay Convention Center on 22 April 2005, making it appear that the decision of the IBP Board of Governors to withdraw the PETITION docketed as Integrated Bar of the Philippines, Jose Anselmo I. Cadiz, et al. vs. The Senate of the Philippines, et al., Petition for Certiorari and Prohibition With Prayer for the Issuance of A Temporary Restraining Order or Writ of Preliminary Injunction, S.C.-R. 165108, was due to influence and pressure from the Supreme Court of the Philippines;

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2. For making said untruthful statements, innuendos and blatant lies that brought the IBP Board of Governors and the IBP as a whole in public contempt and disrepute; 3. For violating Canon 11 of the Code of Professional Responsibility for Lawyers which mandates that A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others, by making untruthful statements, innuendos and blatant lies during the Plenary Session of the IBP 10th National Convention of Lawyers in Baguio City; 4. For instigating and provoking some IBP chapters to embarrass and humiliate the IBP Board of Governors in order to coerce and compel the latter to pursue the aforesaid PETITION; 5. For falsely accusing the IBP National President, Jose Anselmo I. Cadiz, during the Plenary Session of the 10th National Convention in Baguio City of withholding from him a copy of Supreme Court Resolution, dated 25 January 2005, granting the withdrawal of the PETITION, thereby creating the wrong impression that the IBP National President deliberately prevented him from taking the appropriate remedies with respect thereto, thus compromising the reputation and integrity of the IBP National President and the IBP as a whole.[11]

On 18 May 2005, Atty. de Vera aired his sentiments to this Court by writing the then Hon. Chief Justice Hilario G. Davide, Jr. a letter captioned as Urgent Plea to Correct a Glaring Injustice of the IBP Board of Governors; Vehement Protest to the Board Resolution Abruptly Removing Atty. Leonard de Vera from the Board of Governors in Patent Violation of Due Process; Petition to Deny/Disapprove the Completely Unjustified and Highly Arbitrary Resolution Precipitately Ousting Atty. de Vera from the Board of Governors in Less Than Twenty Four (24) Hours from Notice and Judgment Without Formal Investigation.[12]

In the said letter, Atty. de Vera strongly and categorically denied having committed acts inimical to the IBP and its Board. He alleged that on the basis of an unverified letter-complaint filed by IBP Governor Rivera, the IBP Board voted to expel him posthaste, without just cause and in complete disregard of even the minimum standards of due process. Pertinent portions of his letter read:

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It is evident that the Board of Governors has committed a grave and serious injustice against me especially when, as the incumbent Executive Vice President of the IBP, I am scheduled to assume my position as National President of the IBP on July 1, 2005. x x x

I was denied the very basic rights of due process recognized by the Supreme Court even in administrative cases:

1.

The denial of the right to answer the charges formally or in writing. The complaint against me was in writing.

2.

The denial of the right to answer the charges within a reasonable period of time after receipt of the complaint.

3.

The denial of the right to a fair hearing.

4.

The denial of the right to confront the accuser and the witnesses against me. I challenged Gov. Rivera to testify under oath so I could question him. He refused. I offered to testify under oath so I could be questioned. My request was denied.

5.

The denial of my right to present witnesses on my behalf.

6.

The denial of my right to an impartial judge. Governor Rivera was my accuser, prosecutor, and judge all at the same time.

7.

Gov. Riveras prejudgment of my case becomes even more evident because when his motion to expel me was lost in a 5-3 votes (due to his inhibition to vote), Gov. Rivera asked for another round of voting so he can vote to support his own complaint and motion to expel me.[13] (Emphasis and underscoring in original.)

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On 27 May 2005, the IBP Board responded to the 18 May 2005 letter of Atty. de Vera. In their Reply, the IBP Board explained to this Court that their decision to remove Atty. de Vera was based on valid grounds and was intended to protect itself from a recalcitrant member. Among the grounds cited and elucidated by the IBP Board were the following:
[14]

(i)

Atty. de Vera engaged himself in a negative media campaign and solicited resolutions from IBP Chapters to condemn the IBP Board of Governors for its decision to withdraw the PETITION, all with the end in view of compelling or coercing the IBP Board of Governors to reconsider the decision to withdraw the PETITION.

(ii)

Atty. de Vera embarrassed, humiliated and maligned the IBP Board of Governors and the IBP National President in public or during the Plenary Session at the 10th National Convention of Lawyers.

(iii)

Rather than pacify the already agitated solicited speakers (at the plenary session), Atty. de Vera fanned the fire, so to speak, and went to the extent of making untruthful statements, innuendos and blatant lies about the Supreme Court and some members of the IBP Board of Governors. He deliberately and intentionally did so to provoke the members of the IBP Board of Governors to engage him in an acrimonious public debate and expose the IBP Board of Governors to public ridicule.

(iv)

Atty. de Vera uttered untruthful statements, innuendos and blatant lies, e.g., that some of the members of the IBP Board of Governors voted in favor of the withdrawal of the petition (without mentioning names) because nakakahiya kasi sa Supreme Court, nakakaawa kasi ang Supreme Court, kasi may mga kaibigan tayo sa Court. He made it appear that the IBP Board of Governors approved the resolution, withdrawing the petition, due to influence or pressure from the Supreme Court.[15]

The IBP Board explained that Atty. de Veras actuation during the Plenary Session was the last straw that broke the camels back. He committed acts inimical to the interest of the IBP Board and the IBP; hence, the IBP Board decided to remove him.

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On 3 June 2005, Atty. de Vera furnished the Court with copies of resolutions and a position paper coming from various IBP Chapters all condemning his expulsion from the IBP Board and as IBP EVP.[16] On 15 June 2005, IBP President Cadiz informed Chief Justice Davide that in a special meeting of the IBP Board held at theEDSA Shangri-la Plaza on 13 June 2005, the IBP Board took note of the vacancy in the position of the IBP EVP brought about by Atty. de Veras removal. In his stead, IBP Governor Pura Angelica Y. Santiago was formally elected and declared as IBP EVP.[17] On 17 June 2005, Atty. de Vera protested against the election of Atty. Santiago.[18] On 20 June 2005, Atty. Santiago voluntarily relinquished the EVP position through a letter addressed to the IBP Board.[19] Thus, on 25 June 2005, during its last regular meeting, the IBP Board elected a new EVP in the person of IBP Governor Jose Vicente B. Salazar to replace Atty. Santiago. On 28 June 2005, IBP National President Cadiz, through a letter addressed to Chief Justice Davide, reported to this Court Atty. Salazars election.[20] IBP National President Cadiz also requested, among other things, that Atty. Salazars election be approved and that he be allowed to assume as National President in the event that Atty. de Vera is disbarred or suspended from the practice of law or should his removal from the 2003-2005 Board of Governors and as EVP is approved by this Court.[21] Also on28 June 2005, Atty. de Vera protested the election of Atty. Salazar.[22] In his Extended Comment[23] dated 25 July 2005, Atty. de Vera maintained that there was absolutely no factual or legal basis to sustain the motion to remove him from the IBP Board because he violated no law. He argued that if the basis for his removal as EVP was based on the same grounds as his removal from the IBP Board, then his removal as EVP was likewise executed without due notice and without the least compliance with the minimum standards of due process of law. Atty. de Vera strongly averred that, contrary to the utterly false and malicious charges filed against him, the speakers at the Plenary Session of the Baguio Convention, although undeniably impassioned and articulate, were respectful in their language and exhortations, not once undermining the stature of the IBP in general and the IBP Board of Governors in particular. He posited that

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speaking in disagreement with the Resolution of the Board during the Conventions Plenary Session is not a valid cause to remove or expel a dulyelected member of the IBP Board of Governors; and the decision to remove him only shows that the right to freedom of speech or the right to dissent is not recognized by the incumbent IBP Board. Anent the charges that he accused the National President of withholding a copy of this Courts Resolution granting the withdrawal of the Petition questioning the legality of Republic Act No. 9227, Atty. de Vera avowed that he made no such remarks. As regards the election of a new IBP EVP, Atty. de Vera contended that the said election was illegal as it was contrary to the provisions of the IBP ByLaws concerning national officers, to wit:
Section. 49. Term of office. - The President and the Executive Vice President shall hold office for a term of two years from July 1 following their election until 30 June of their second year in office and until their successors shall have been duly chosen and qualified.

In the event the President is absent or unable to act, his functions and duties shall be performed by the Executive Vice President, and in the event of death, resignation, or removal of the President, the Executive Vice President shall serve as Acting President for the unexpired portion of the term. In the event of death, resignation, removal or disability of both the President and the Executive Vice President, the Board of Governors shall elect an Acting President to hold office for the unexpired portion of the term or during the period of disability.

Unless otherwise provided in these By-Laws, all other officers and employees appointed by the President with the consent of the Board shall hold office at the pleasure of the Board or for such term as the Board may fix.[24]

To bolster his position, Atty. de Vera stressed that when both the President and the EVP die, resign, are removed, or are disabled, the IBP By-Laws only provides for the election of an Acting President and that no mention for an election for EVP was made. Thus, when such election for EVP occurs, such is contrary to the express provision of the IBP By-Laws. Atty. de Vera also argued that even if he were validly removed as IBP EVP, his replacement should come from Eastern Mindanao and not from any other

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region, due to the Rotation Rule embodied in par. 2, Section 47, Article VII of the IBP By-Laws. In response to Atty. de Veras averments, the 2003-2005 IBP Board, through its counsel, submitted a Reply dated 27 January 2006 and clarified as follows:
(i) The IBP Board of Governors is vested with sufficient power and authority to protect itself from an intractable member by virtue of Article VI, Section 44 of the IBP By-Laws; Atty. de Vera was removed as a member of the IBP Board and as IBP EVP not because of his disagreement with the IBP Boards position but because of the various acts that he committed which the IBP Board determined to be inimical to the IBP Board and the IBP as a whole; Atty. de Vera cannot exculpate himself from liability by invoking his constitutional right to Free Speech because, as a member of the Bar, it is his sworn duty to observe and maintain the respect due to the courts and to judicial officers and to insist on similar conduct by others; The IBP Board, in effecting the removal of Atty. de Vera, observed the fundamental principles of due process. As the records would bear, Atty. de Vera was duly notified of the Regular Meeting of the IBP Board held on 13 May 2004; was furnished a copy of Governor Riveras Letter-Complaint the day before the said meeting; was furnished a copy of the said Meetings Agenda; and was allowed to personally defend himself and his accuser, Gov. Rivera; Atty. de Vera was validly removed because the required number of votes under Section 44 of the IBP By-Laws to remove Atty. de Vera as a member of the IBP Board and as IBP EVP was duly complied with; Atty. de Veras replacement as IBP EVP need not come from Eastern Mindanao Region because: (a) the rotation rule under Article VII, Section 47, par. 2 of the IBP By-Laws had already been complied with when Atty. de Vera, who hails from Eastern Mindanao, was elected IBP EVP; and (b) the rotation rule need not be enforced if the same will not be practicable, possible, feasible, doable or viable; and, finally, that Atty. Salazar was validly elected as IBP EVP and, thus, should now be allowed to take his oath as IBP National President.[25]

(ii)

(iii)

(iv)

(v)

(vi)

(vii)

The Courts Ruling

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AC No. 6697 In his Memorandum[26] dated 20 June 2005, complainant tendered the following issues for the consideration of the Court:
I. WHETHER OR NOT RESPONDENT ATTORNEY LEONARD S. DEVERA (sic) COMMITED MALPRACTICE WHICH AMOUNTED TO MORAL T[U]RPITUDE IN THE STATE BAR OF CALIFORNIA AND IN THE PHILIPPINES, IN THE COURSE OF HIS PRACTICE OF LAW. II. WHETHER OR NOT THE OATH OF OFFICE AS LAWYER IS ATTACHED TO THE PERSON OF ATTORNEY LEONARD S. DEVERA (sic) WHEREVER HE MAY GO AND NOT NECESSARILY BOUND BY THE TERRITORIAL JURISDICTION OF THE PHILIPPINES. III. WHETHER OR NOT THERE IS SUBSTANTIAL EVIDENCE TO PROVE THE MORAL T[U]RPITUDE, AS BASIS FOR DISBARMENT OF RESPONDENT IN AN ADMINISTRATIVE PROCEEDING. IV. WHETHER OR NOT RES JUDICATA APPLIES IN THIS CASE, DUE TO ADMIN. CASE NO. [6052][27]

The disposition of the first three related issues hinges on the resolution of the fourth issue. Consequently, we will start with the last issue. A.C. No. 6052 is not a bar to the filing of the present administrative case.

In disposing of the question of res judicata, the Bar Confidant opined:

To reiterate, the instant case for suspension and/or disbarment against respondent Leonard De Vera is grounded on the following: 1) respondents alleged misrepresentation in concealing the suspension order rendered against him by the State Bar in California; and

138 respondents alleged violation of the so-called rotation rule enunciated in Administrative Matter No. 491 dated 06 October 1989(In the Matter: 1989 IBP Elections).

2)

It appears that the complainant already raised the said issues in an earlier administrative case against the respondent. Verily, these issues were already argued upon by the parties in their respective pleadings, and discussed and ruled upon by this Court in its Decision dated 11 December 2003 in Administrative Matter No. 6052 (In Re: Petition to Disqualify Atty. Leonard de Vera). As such, with respect to the first issue, this Court held that: As for the administrative complaint filed against him by one of his clients when he was practicing law in California, which in turn compelled him to surrender his California license to practice law, he maintains that it cannot serve as basis for determining his moral qualification (or lack of it) to run for the position he is aspiring for. He explains that there is as yet no final judgment finding him guilty of the administrative charge, as the records relied upon by the petitioners are mere preliminary findings of a hearing referee which are recommendatory findings of an IBP Commissioner on Bar Discipline which are subject to the review of and the final decision of the Supreme Court. He also stresses that the complainant in theCalifornia administrative case has retracted the accusation that he misappropriated the complainants money, but unfortunately the retraction was not considered by the investigating officer. xxx On the administrative complaint that was filed against respondent De Vera while he was still practicing law in California, he explained that no final judgment was rendered by the California Supreme Court finding him guilty of the charge. He surrendered his license to protest the discrimination he suffered at the hands of the investigator and he found it impractical to pursue the case to the end. We find these explanations satisfactory in the absence of contrary proof. It is a basic rule on evidence that he who alleges a fact has the burden to prove the same. In this case, the petitioners have not shown how the administrative complaint affects respondent De Vera's moral fitness to run for governor. On the other hand, as regards the second issue: Petitioners contend that respondent de Vera is disqualified for the post because he is not really from Eastern Mindanao. His place of residence is in Paraaque and he was originally a member of the PPLM IBP Chapter. He only changed his IBP Chapter membership to pave the way for his ultimate goal of attaining the highest IBP post, which is the national presidency. Petitioners aver that in changing his IBP membership, respondent De Vera violated the domicile rule. The contention has no merit. Under the last paragraph of Section 19, Article II, a lawyer included in the Roll of Attorneys of the Supreme Court

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can register with the particular IBP Chapter of his preference or choice, thus: xxx It is clearly stated in the aforequoted section of the By-Laws that it is not automatic that a lawyer will become a member of the chapter where his place of residence or work is located. He has the discretion to choose the particular chapter where he wishes to gain membership. Only when he does not register his preference that he will become a member of the Chapter of the place where he resides or maintains office. The only proscription in registering one's preference is that a lawyer cannot be a member of more than one chapter at the same time. The same is provided in Section 29-2 of the IBP By-Laws. In fact, under this Section, transfer of IBP membership is allowed as long as the lawyer complies with the conditions set forth therein, thus: xxx The only condition required under the foregoing rule is that the transfer must be made not less than three months prior to the election of officers in the chapter to which the lawyer wishes to transfer. In the case at bar, respondent De Vera requested the transfer of his IBP membership to Agusan del Sur on 1 August 2001. One month thereafter, IBP National Secretary Jaime M. Vibar wrote a letter addressed to Atty. Amador Z. Tolentino, Jr., Secretary of IBP PPLM Chapter and Atty. Lyndon J. Romero, Secretary of IBP Agusan del Sur Chapter, informing them of respondent de Vera's transfer and advising them to make the necessary notation in their respective records. This letter is a substantial compliance with the certification mentioned in Section 29-2 as aforequoted. Note that de Vera's transfer was made effective sometime between 1 August 2001 and 3 September 2001. On 27 February 2003, the elections of the IBP Chapter Officers were simultaneously held all over the Philippines, as mandated by Section 29.a of the IBP By-Laws which provides that elections of Chapter Officers and Directors shall be held on the last Saturday of February of every other year. Between 3 September 2001 and 27 February 2003, seventeen months had elapsed. This makes respondent de Vera's transfer valid as it was done more than three months ahead of the chapter elections held on 27 February 2003. In the case of Romulo G. Dinsay vs. Atty. Leopoldo D. Cioco (Administrative Case No. 2995, 27 November 1996), this Court declared that: The doctrine of res judicata applies only to judicial or quasi-judicial proceedings and not to the exercise of the [Courts] administrative powers. In the said case, respondent Clerk of Court Cioco was dismissed from service for grave misconduct highly prejudicial to the service for surreptitiously substituting the bid

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price in a Certificate of Sale from P3,263,182.67 to only P730,000.00. Thereafter a complaint for disbarment was filed against the respondent on the basis of the same incident. Respondent, interposing res judicata, argued that he may no longer be charged on the basis of the same incident. This Court held that while the respondent is in effect being indicted twice for the same misconduct, this does not amount to double jeopardy as both proceedings are admittedly administrative in nature. This Court qualified that, in the first case, the respondent was proceeded against as an erring court personnel under the Courts supervisory power over courts while, in the second case, he was disciplined as a lawyer under the Courts plenary authority over membersof the legal profession. In subsequent decisions of this Court, however, it appears that res judicata still applies in administrative cases. Thus, in the case of Atty. Eduardo C. De Vera vs. Judge William Layague (Administrastive Matter No. RTJ-93-986), this Court ruled that: While double jeopardy does not lie in administrative cases, it would be contrary to equity and substantial justice to penalize respondent judge a second time for an act which he had already answered for. Likewise, in the recent case of Executive Judge Henry B. Basilia vs. Judge Amado L. Becamon, Lolita Delos Reyes and Eddie DelosReyes (Administrative Matter No. MTJ02-1404, 14 December 2004), this Court held that: Applying the principle of res judicata or bar by prior judgment, the present administrative case becomes dismissible. xxx Under the said doctrine, a matter that has been adjudicated by a court of competent jurisdiction must be deemed to have been finally and conclusively settled if it arises in any subsequent litigation between the same parties and for the same cause. It provides that [a] final judgment on the merits rendered by a court of competent jurisdiction is conclusive as to the rights of the parties and their privies; and constitutes an absolute bar to subsequent actions involving the same claim, demand, or cause of action. Res judicata is based on the ground that the party to be affected, or some other with whom he is in privity, has litigated the same matter in the former action in a court of competent jurisdiction, and should not be permitted to litigate it again. This principle frees the parties from undergoing all over again the rigors of unnecessary suits and repetitious trials. At the same time, it prevents the clogging of court dockets. Equally important, res judicata stabilizes rights and promotes the rule of law. In the instant administrative case, it is clear that the issues raised by the complainant had already been resolved by this Court in an earlier administrative case. The complainants contention that the principle of res judicata would not apply in the case at bar as the first administrative case was one for disqualification while the instant administrative complaint is one for suspension and/or disbarment should be given least

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credence. It is worthy to note that while the instant administrative complaint is denominated as one for suspension and/or disbarment, it prayed neither the suspension nor the disbarment of the respondent but instead merely sought to enjoin the respondent from assuming office as IBP National President.[28]

Contrary to the findings of the Bar Confidant, Adm. Case No. 6052 entitled, In Re: Petition to Disqualify Atty. Leonard de Vera, on Legal and Moral Grounds, From Being Elected IBP Governor for Eastern Mindanao in the May 31 IBP Election and promulgated on 11 December 2003 does not constitute a bar to the filing of Adm. Case No. 6697. Although the parties in the present administrative case and in Adm. Case No. 6052 are identical, their capacities in these cases and the issues presented therein are not the same, thereby barring the application of res judicata. In order that the principle of res judicata may be made to apply, four essential conditions must concur, namely: (1) the judgment sought to bar the new action must be final; (2) the decision must have been rendered by a court having jurisdiction over the subject matter and the parties; (3) the disposition of the case must be a judgment or order on the merits, and (4) there must be between the first and second action identity of parties, identity of subject matter, and identity of causes of action.[29] In the absence of any one of these elements, Atty. de Vera cannot argue res judicata in his favor. It is noteworthy that the two administrative cases involve different subject matters and causes of action. In Adm. Case No. 6052, the subject matter was the qualification of Atty. de Vera to run as a candidate for the position of IBP Governor for Eastern Mindanao. In the present administrative complaint, the subject matter is his privilege to practice law. In the first administrative case, complainants cause of action was Atty. de Veras alleged violation or circumvention of the IBP By-laws. In the present administrative case, the primary cause of action is Atty. de Veras alleged violation of lawyers oath and the Code of Professional Responsibility.

Finally, the two administrative cases do not seek the same relief. In the first case, the complainants sought to prevent Atty. de Vera from assuming his post as IBP Governor for Eastern Mindanao. In the present case, as clarified by complainant in his Memorandum, what is being principally sought is Atty. de Veras suspension or disbarment.

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The distinctions between the two cases are far from trivial. The previous case was resolved on the basis of the parties rights and obligations under the IBP By-laws. We held therein that Atty. de Vera cannot be disqualified from running as Regional Governor as there is nothing in the present IBP By-laws that sanctions the disqualification of candidates for IBP governors. Consequently, we stressed that the petition had no firm ground to stand on. Likewise, we held that the complainants therein were not the proper parties to bring the suit as the IBP By-laws prescribes that only nominees - which the complainants were not - can file with the IBP President a written protest against the candidate. The Courts statement, therefore, that Atty. de Vera cannot be disqualified on the ground that he was not morally fit was mere obiter dictum. Precisely, the IBP By-laws do not allow for pre-election disqualification proceedings; hence, Atty. de Vera cannot be disqualified on the basis of the administrative findings of a hearing officer of the State Bar of California suspending him from the practice of law for three years. We held in that case that

There is nothing in the By-Laws which explicitly provides that one must be morally fit before he can run for IBP governorship. For one, this is so because the determination of moral fitness of a candidate lies in the individual judgment of the members of the House of Delegates. Indeed, based on each member's standard of morality, he is free to nominate and elect any member, so long as the latter possesses the basic requirements under the law. For another, basically the disqualification of a candidate involving lack of moral fitness should emanate from his disbarment or suspension from the practice of law by this Court, or conviction by final judgment of an offense which involves moral turpitude.[30]

What this simply means is that absent a final judgment by the Supreme Court in a proper case declaring otherwise, every lawyer aspiring to hold the position of IBP Regional Director is presumed morally fit. Any person who begs to disagree will not be able to find a receptive audience in the IBP through a petition for disqualification but must first file the necessary disbarment or suspension proceeding against the lawyer concerned. And this is precisely what complainant has chosen to do in the instant case. As his petition is sufficient in form and substance, we have given it due course pursuant to

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Rule 138 of the Rules of Court. And, considering that this case is not barred by the prior judgment in Adm. Case No. 6052, the only issue left for consideration is whether or not Atty. de Vera can be suspended or disbarred under the facts of the case and the evidence submitted by complainant.

The recommendation of the hearing officer of the State Bar of California, standing alone, is not proof of malpractice.

In the case of the Suspension From The Practice of Law In The Territory of Guam of Atty. Leon G. Maquera,[31] we were confronted with the question of whether or not a member of the Philippine Bar, who is concomitantly an attorney in a foreign jurisdiction and who was suspended from the practice of law in said foreign jurisdiction, can be sanctioned as member of the Philippine Bar for the same infraction committed in the foreign jurisdiction. We take the issue in Atty. Maquera one notch higher in the case of Atty. de Vera who was admitted to the practice of law in a foreign jurisdiction (State Bar of California, U.S.A.) and against whom charges were filed in connection with his practice in said jurisdiction. However, unlike the case of Atty. Maquera, no final judgment for suspension or disbarment was meted against Atty. de Vera despite a recommendation of suspension of three years as he surrendered his license to practice law before his case could be taken up by the Supreme Court of California. In Maquera, we emphasized that the judgment of suspension against a Filipino lawyer in a foreign jurisdiction does not automatically result in his suspension or disbarment in the Philippines as the acts giving rise to his suspension are not grounds for disbarment and suspension in this jurisdiction. Judgment of suspension against a Filipino lawyer may transmute into a similar judgment of suspension in the Philippines only if the basis of the foreign courts action includes any of the grounds for disbarment or suspension in this jurisdiction. We likewise held that the judgment of the foreign court merely constitutes prima facie evidence of unethical acts as lawyer.

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The Maquera ruling is consistent with Rule 39, Section 48, of the Rules of Court which provides:

Sec. 48. Effect of foreign judgments or final orders. - The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is as follows:

xxxx

(b) In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title.

In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.

In Philippine Aluminum Wheels, Inc. v. Fasgi Enterprises, Inc.,[32] we explained that *a+ foreign judgment is presumed to be valid and binding in the country from which it comes, until a contrary showing, on the basis of a presumption of regularity of proceedings and the giving of due notice in the foreign forum.

In herein case, considering that there is technically no foreign judgment to speak of, the recommendation by the hearing officer of the State Bar of California does not constitute prima facie evidence of unethical behavior by Atty. de Vera. Complainant must prove by substantial evidence the facts upon which the recommendation by the hearing officer was based. If he is successful in this, he must then prove that these acts are likewise unethical under Philippine law.

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There is substantial evidence of malpractice on the part of Atty. de Vera independent of the recommendation of suspension by the hearing officer of the State Bar of California

Section 27 of Rule 138 of our Rules of Court states:

SEC. 27. Disbarment or suspension of attorneys by Supreme Court; grounds therefor. A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a wilful disobedience of any lawful order of a superior court, or for corruptly or wilfully appearing as an attorney for a party to a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice. The disbarment or suspension of a member of the Philippine Bar by a competent court or other disciplinary agency in a foreign jurisdiction where he has also been admitted as an attorney is a ground for his disbarment or suspension if the basis of such action includes any of the acts hereinabove enumerated. The judgment, resolution or order of the foreign court or disciplinary agency shall be prima facie evidence of the ground for disbarment or suspension.[33]

Disciplinary action against a lawyer is intended to protect the court and the public from the misconduct of officers of the court and to protect the administration of justice by requiring that those who exercise this important function shall be competent, honorable and reliable men in whom courts and clients may repose confidence.[34] The statutory enunciation of the grounds for disbarment on suspension is not to be taken as a limitation on the general power of courts to suspend or disbar a lawyer. The inherent power of the court over its officers cannot be restricted.[35]

Malpractice ordinarily refers to any malfeasance or dereliction of duty committed by a lawyer. Section 27 gives a special and technical meaning to the term

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Malpractice.[36] That meaning is in consonance with the elementary notion that the practice of law is a profession, not a business.[37]

Unprofessional conduct in an attorney is that which violates the rules on ethical code of his profession or which is unbecoming a member of that profession.[38]

Now, the undisputed facts:

1.

An administrative case against Atty. de Vera was filed before the State Bar of California, docketed then as Adm. Case No. 86-0-18429. It arose from an insurance case Atty. de Vera handled involving Julius Willis, III who figured in an automobile accident in 1986. Atty. de Vera was authorized by the elder Willis (father of Julius who was given authority by the son to control the case because the latter was then studying in San Diego California) for the release of the funds in settlement of the case. Atty. de Vera received a check in settlement of the case which he then deposited to his personal account;[39]

2.

The Hearing referee in the said administrative case recommended that Atty. de Vera be suspended from the practice of law for three years;[40] and

3.

Atty. de Vera resigned from the California Bar which resignation was accepted by the Supreme Court of California.[41]

Atty. de Vera vehemently insists that the foregoing facts do not prove that he misappropriated his clients funds as the latters father (the elder Willis) gave him authority to use the same and that, unfortunately, the hearing officer did not consider this explanation notwithstanding the fact that the elder Willis testified under oath that he expected de Vera might use the money for a few days.

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By insisting that he was authorized by his clients father and attorney-in-fact to use the funds, Atty. de Vera has impliedly admitted the use of the Willis funds for his own personal use.

In fact, Atty. de Vera did not deny complainants allegation in the latters memorandum that he (de Vera) received US$12,000.00 intended for his client and that he deposited said amount in his personal account and not in a separate trust account and that, finally, he spent the amount for personal purposes.[42]

At this point, it bears stressing that in cases filed before administrative and quasijudicial bodies, a fact may be deemed established if it is supported by substantial evidence or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.[43] It means such evidence which affords a substantial basis from which the fact in issue can be reasonably inferred.[44]

Beyond doubt, the unauthorized use by a lawyer of his clients funds is highly unethical. Canon 16 of the Code of Professional Responsibility is emphatic about this, thus:

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

Rule 16.01. the client.

A lawyer shall account for all money or property collected or received for or from

Rule 16.02. A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him.

In Espiritu v. Ulep[45] we held that

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The relation between attorney and client is highly fiduciary in nature. Being such, it requires utmost good faith, loyalty, fidelity and disinterestedness on the part of the attorney. Its fiduciary nature is intended for the protection of the client.

The Code of Professional Responsibility mandates every lawyer to hold in trust all money and properties of his client that may come into his possession. Accordingly, he shall account for all money or property collected or received for or from the client. Even more specific is the Canon of Professional Ethics:

The lawyer should refrain from any action whereby for his personal benefit or gain he abuses or takes advantage of the confidence reposed in him by his client.

Money of the client or collected for the client or other trust property coming into the possession of the lawyer should be reported and accounted for promptly and should not under any circumstances be commingled with his own or be used by him.

Consequently, a lawyer's failure to return upon demand the funds or property held by him on behalf of his client gives rise to the presumption that he has appropriated the same for his own use to the prejudice of, and in violation of the trust reposed in him by, his client. It is a gross violation of general morality as well as of professional ethics; it impairs the public confidence in the legal profession and deserves punishment.

Lawyers who misappropriate the funds entrusted to them are in gross violation of professional ethics and are guilty of betrayal of public confidence in the legal profession. Those who are guilty of such infraction may be disbarred or suspended indefinitely from the practice of law. (Emphases supplied.)

In herein case, as it is admitted by Atty. de Vera himself that he used his clients money for personal use, he has unwittingly sealed his own fate since this admission constitutes more than substantial evidence of malpractice. Consequently, Atty. de Vera now has the burden of rebutting the evidence which he himself supplied.

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In his defense, Atty. de Vera claims that he was duly authorized by the elder Willis to use the funds intended for the latters son. Atty. de Vera also points out that he had restituted the full amount of US$12,000.00 even before the filing of the administrative case against him in the State Bar of California.[46]

Aside from these self-serving statements, however, we cannot find anywhere in the records of this case proof that indeed Atty. de Vera was duly authorized to use the funds of his client. In Radjaie v. Atty. Alovera[47] we declared that

When the integrity of a member of the bar is challenged, it is not enough that he denies the charges against him; he must meet the issue and overcome the evidence against him. He must show proof that he still maintains that degree of morality and integrity which at all times is expected of him.

Atty. de Vera cannot rely on the statement made by the hearing officer that the elder Willis had indeed testified that he expected de Vera might use the money for a few days. As Atty. de Vera had vigorously objected to the admissibility of the document containing this statement, he is now estopped from relying thereon. Besides, that the elder Willis expected de Vera might use the money for a few days was not so much an acknowledgment of consent to the use by Atty. de Vera of his clients funds as it was an acceptance of the probability that Atty. de Vera might, indeed, use his clients funds, which by itself did not speak well of the character of Atty. de Vera or the way such character was perceived.

In the instant case, the act of Atty. de Vera in holding on to his clients money without the latters acquiescence is conduct indicative of lack of integrity and propriety. It is clear that Atty. de Vera, by depositing the check in his own account and using the same for his own benefit is guilty of deceit, malpractice, gross misconduct and unethical behavior. He caused dishonor, not only to himself but to the noble profession to which he belongs. For, it cannot be denied that the respect of litigants to the profession is inexorably diminished whenever a member of the profession betrays their

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trust and confidence.[48] Respondent violated his oath to conduct himself with all good fidelity to his client.

Nevertheless, we do not agree with complainants plea to disbar respondent from the practice of law. The power to disbar must be exercised with great caution.[49] Where any lesser penalty can accomplish the end desired, disbarment should not be decreed.

In Mortera v. Pagatpatan,[50] we imposed upon Atty. Pagatpatan two years suspension from his practice of law for depositing the funds meant for his client to his personal account without the latters knowledge. In Reyes v. Maglaya;[51] Castillo v. Taguines;[52] Espiritu v. Atty. Cabredo IV,[53] the respondents were meted one year suspension each for failing to remit to their clients monies in the amounts of P1,500.00; P500.00, and P51,161.00, respectively, received by them for their clients without the latters permission. In Dumadag v. Atty. Lumaya,[54] we indefinitely suspended respondent for failure to remit to his client the amount of the measly sum of P4,344.00 representing the amount received pursuant to a writ of execution. Considering the amount involved here US$12,000.00, we believe that the penalty of suspension for two (2) years is appropriate.

Transferring IBP membership to a chapter where the lawyer is not a resident of is not a ground for his suspension or disbarment

Complainant insists that Atty. de Veras transfer of membership from the Pasay, Paraaque, Las Pias and Muntinlupa (PPLM) Chapter to the Agusan del Sur IBP Chapter is a circumvention of the rotation rule as it was made for the sole purpose of becoming IBP National President. Complainant stresses that Atty. de Vera is not a resident of Agusan del Sur nor does he hold office therein.

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In Adm. Case No. 6052, we held that Atty. de Veras act of transferring to another IBP Chapter is not a ground for his disqualification for the post of IBP Governor as the same is allowed under Section 19 of the IBP By-Laws with the qualification only that the transfer be made not less than three months immediately preceding any chapter election.

As it was perfectly within Atty. de Veras right to transfer his membership, it cannot be said that he is guilty of unethical conduct or behavior. And while one may incessantly argue that a legal act may not necessarily be ethical, in herein case, we do not see anything wrong in transferring to an IBP chapter that -- based on the rotation rule will produce the next IBP EVP who will automatically succeed to the National Presidency for the next term. Our Code of Professional Responsibility as well as the Lawyers Oath do not prohibit nor punish lawyers from aspiring to be IBP National President and from doing perfectly legal acts in accomplishing such goal.

Bar Matter No. 1227 Administrative Matter No. 05-5-15-SC

To resolve Bar Matter No. 1227 and Administrative Matter No. 05-5- 15-SC, the following issues must be addressed: I. Whether the IBP Board of Governors acted with grave abuse of discretion in removing Atty. de Vera as Governor and EVP of the IBP on 13 May 2005.

i. Whether the IBP Board of Governors complied with administrative due process in removing Atty. de Vera. ii. Whether the IBP removed Atty. De Vera for just and valid cause.

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II.

Whether Governor Salazar was validly elected as EVP of the IBP on 25 June 2005, and can consequently assume the Presidency of the IBP for the term 2005-2007.

The IBP Board observed due process in its removal of Atty. de Vera as IBP Governor

We start the discussion with the veritable fact that the IBP Board is vested with the power to remove any of its members pursuant to Section 44, Article VI of the IBP ByLaws, which states:

Sec. 44. Removal of members. If the Board of Governors should determine after proper inquiry that any of its members, elective or otherwise, has for any reason become unable to perform his duties, the Board, by resolution of the Majority of the remaining members, may declare his position vacant, subject to the approval of the Supreme Court.

Any member of the Board, elective or otherwise, may be removed for cause, including three consecutive absences from Board meetings without justifiable excuse, by resolution adopted by two-thirds of the remaining members of the Board, subject to the approval of the Supreme Court.

In case of any vacancy in the office of Governor for whatever cause, the delegates from the region shall by majority vote, elect a successor from among the members of the Chapter to which the resigned governor is a member to serve as governor for the unexpired portion of the term. (Emphasis supplied)

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Under the aforementioned section, a member of the IBP Board may be removed for cause by resolution adopted by two-thirds (2/3) of the remaining members of the Board, subject to the approval of this Court.

In the main, Atty. de Vera questions his removal from the Board of Governors on procedural and substantive grounds. He argues that he was denied very basic rights of due process recognized by the Honorable Court even in administrative cases like the right to answer formally or in writing and within reasonable time, the right to present witnesses in his behalf, the right to a fair hearing. Atty. de Vera protests the fact that he was not able to cross-examine the complainant, IBP Gov. Romulo H. Rivera (Atty. Rivera) and that Atty. Rivera voted as well for his expulsion which made him accuser, prosecutor and judge at the same time. Atty. de Vera emphasized the fact that Atty. Rivera initially inhibited himself from voting on his own motion. However, when his inhibition resulted in the defeat of his motion as the necessary 2/3 votes could not be mustered, Atty. Rivera asked for another round of voting so he could vote to support his own motion.

The IBP Board counters that since its members were present during the plenary session, and personally witnessed and heard Atty. de Veras actuations, an evidentiary or formal hearing was no longer necessary. Since they all witnessed and heard Atty. de Vera, it was enough that he was given an opportunity to refute and answer all the charges imputed against him. They emphasized that Atty. de Vera was given a copy of the complaint and that he was present at the Board Meeting on 13 May 2005 wherein the letter-complaint against him was part of the agenda. Therein, he was given the opportunity to be heard and that, in fact, Atty. de Vera did argue his case.

We are in agreement with the IBP Board.

First, it needs stressing that the constitutional provision on due process safeguards life, liberty and property.[55] It cannot be said that the position of EVP of the IBP is property within the constitutional sense especially since there is no right to security of tenure over said position as, in fact, all that is required to remove any member of the

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board of governors for cause is a resolution adopted by 2/3 of the remaining members of the board.

Secondly, even if the right of due process could be rightfully invoked, still, in administrative proceedings, the essence of due process is simply the opportunity to explain ones side.[56] At the outset, it is here emphasized that the term due process of law as used in the Constitution has no fixed meaning for all purposes due to the very nature of the doctrine which, asserting a fundamental principle of justice rather than a specific rule of law, is not susceptible of more than one general statement.[57] The phrase is so elusive of exact apprehension,[58] because it depends on circumstances and varies with the subject matter and the necessities of the situation.[59]

Due process of law in administrative cases is not identical with judicial process for a trial in court is not always essential to due process. While a day in court is a matter of right in judicial proceedings, it is otherwise in administrative proceedings since they rest upon different principles. The due process clause guarantees no particular form of procedure and its requirements are not technical. Thus, in certain proceedings of administrative character, the right to a notice or hearing are not essential to due process of law. The constitutional requirement of due process is met by a fair hearing before a regularly established administrative agency or tribunal. It is not essential that hearings be had before the making of a determination if thereafter, there is available trial and tribunal before which all objections and defenses to the making of such determination may be raised and considered. One adequate hearing is all that due process requires. What is required for hearing may differ as the functions of the administrative bodies differ.[60]

The right to cross-examine is not an indispensable aspect of due process.[61] Nor is an actual hearing always essential[62]especially under the factual milieu of this case where the members of the IBP Board -- upon whose shoulders the determination of the cause for removal of an IBP governor is placed subject to the approval of the Supreme Court all witnessed Atty. de Veras actuations in the IBP National Convention in question.

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It is undisputed that Atty. de Vera received a copy of the complaint against him and that he was present when the matter was taken up. From the transcript of the stenographic notes of the 13 May 2005 meeting wherein Atty. de Vera was removed, it is patent that Atty. de Vera was given fair opportunity to defend himself against the accusations made by Atty. Rivera.

Atty. de Vera, however, additionally questions the fact that Atty. Rivera, who authored the complaint against him, also voted for his expulsion making him accuser, prosecutor and judge at the same time. Atty. de Vera likewise laments the fact that Atty. Rivera initially inhibited himself from voting but when this resulted in the defeat of his motion for lack of the necessary 2/3 vote, he agreed to another round of voting and that, this time, he voted in favor of his motion.

For the record, of the nine governors comprising the IBP Board, six voted for Atty. de Veras expulsion (including Atty. Rivera) while 3 voted against it (including Atty. de Vera).

Section 44 (second paragraph) of the IBP By-Laws provides:

Any member of the Board, elective or otherwise, may be removed for cause, including three consecutive absences from Board meetings without justifiable excuse, by resolution adopted by two-thirds of the remaining members of the Board, subject to the approval of the Supreme Court. (Emphasis supplied.)

Under the rules, a resolution for expulsion of an IBP Governor is done via a resolution adopted by 2/3 of the remaining members. The phrase remaining members refers to the members exclusive of the complainant member and the respondent member. The reason therefore is that such members are interested parties and are thus presumed to be unable to resolve said motion impartially. This being the case, the votes of Attys. Rivera and de Vera should be stricken-off which means that only the votes of the seven remaining members are to be counted. Of the seven remaining members, five

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voted for expulsion while two voted against it which still adds up to the 2/3 vote requirement for expulsion.

The IBP Board removed Atty. de Vera as IBP Governor for just and valid cause

All the concerned parties to this case agree that what constitutes cause for the removal of an IBP Governor has not been defined by Section 44 of the IBP By-Laws albeit it includes three consecutive absences from Board meetings without justifiable excuse. Thus, the IBP Board argues that it is vested with sufficient power and authority to protect itself from an intractable member whose removal was caused not by his disagreement with the IBP Board but due to various acts committed by him which the IBP Board considered as inimical to the IBP Board in particular and the IBP in general.

Atty. de Vera, on the other hand, insists that speaking in disagreement with the Resolution of the Board during the Conventions Plenary Session is not a valid cause to remove or expel a duly-elected member of the IBP Board of Governors and the decision to remove him only shows that the right to freedom of speech or the right to dissent is not recognized by the IBP Board. After weighing the arguments of the parties and in keeping with the fundamental objective of the IBP to discharge its public responsibility more effectively, we hereby find that Atty. de Veras removal from the IBP Board was not capricious or arbitrary. Indubitably, conflicts and disagreements of varying degrees of intensity, if not animosity, are inherent in the internal life of an organization, but especially of the IBP since lawyers are said to disagree before they agree.

However, the effectiveness of the IBP, like any other organization, is diluted if the conflicts are brought outside its governing body for then there would be the impression

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that the IBP, which speaks through the Board of Governors, does not and cannot speak for its members in an authoritative fashion. It would accordingly diminish the IBPs prestige and repute with the lawyers as well as with the general public.

As a means of self-preservation, internecine conflicts must thus be adjusted within the governing board itself so as to free it from the stresses that invariably arise when internal cleavages are made public.

The doctrine of majority rule is almost universally used as a mechanism for adjusting and resolving conflicts and disagreements within the group after the members have been given an opportunity to be heard. While it does not efface conflicts, nonetheless, once a decision on a contentious matter is reached by a majority vote, the dissenting minority is bound thereby so that the board can speak with one voice, for those elected to the governing board are deemed to implicitly contract that the will of the majority shall govern in matters within the authority of the board.[63]

The IBP Board, therefore, was well within its right in removing Atty. de Vera as the latters actuations during the 10th National IBP Convention were detrimental to the role of the IBP Board as the governing body of the IBP. When the IBP Board is not seen by the bar and the public as a cohesive unit, it cannot effectively perform its duty of helping the Supreme Court enforce the code of legal ethics and the standards of legal practice as well as improve the administration of justice.

In view of the importance of retaining group cohesiveness and unity, the expulsion of a member of the board who insists on bringing to the public his disagreement with a policy/resolution approved by the majority after due discussion, cannot be faulted. The effectiveness of the board as a governing body will be negated if its pronouncements are resisted in public by a board member.

Indeed, when a member of a governing body cannot accept the voice of the majority, he should resign therefrom so that he could criticize in public the majority

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opinion/decision to his hearts content; otherwise, he subjects himself to disciplinary action by the body.

The removal of Atty. de Vera as member of the Board of Governors ipso facto meant his removal as EVP as well

The removal of Atty. de Vera as member of the Board of Governors ipso facto meant his removal as EVP as well. Section 47, Article VII of the By-Laws of the IBP provides:

SEC. 47. National Officers. The Integrated Bar of the Philippines shall have a President and Executive Vice President to be chosen by the Board of Governors from among nine (9) regional governors, as much as practicable, on a rotation basis. x x x

Thus, to be EVP of the IBP, one must necessarily be a member of IBP Board of Governors. Atty. de Veras removal from the Board of Governors, automatically disqualified him from acting as IBP EVP. To insist otherwise would be contrary to Section 47 of the IBP By-Laws.

The Court will not interfere with the Resolution of the IBP Board to remove Atty. de Vera since it was rendered without grave abuse of discretion

While it is true that the Supreme Court has been granted an extensive power of supervision over the IBP,[64] it is axiomatic that such power should be exercised prudently. The power of supervision of the Supreme Court over the IBP should not

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preclude the IBP from exercising its reasonable discretion especially in the administration of its internal affairs governed by the provisions of its By-Laws. The IBP By-Laws were precisely drafted and promulgated so as to define the powers and functions of the IBP and its officers, establish its organizational structure, and govern relations and transactions among its officers and members. With these By-Laws in place, the Supreme Court could be assured that the IBP shall be able to carry on its dayto-day affairs, without the Courts interference.

It should be noted that the general charge of the affairs and activities of the IBP has been vested in the Board of Governors. The members of the Board are elective and representative of each of the nine regions of the IBP as delineated in its By-Laws.[65] The Board acts as a collegiate body and decides in accordance with the will of the majority. The foregoing rules serve to negate the possibility of the IBP Board acting on the basis of personal interest or malice of its individual members. Hence, the actions and resolutions of the IBP Board deserve to be accorded the disputable presumption[66] of validity, which shall continue, until and unless it is overcome by substantial evidence and actually declared invalid by the Supreme Court. In the absence of any allegation and substantial proof that the IBP Board has acted without or in excess of its authority or with grave abuse of discretion, we shall not be persuaded to overturn and set aside the Boards action or resolution.

There is no question that the IBP Board has the authority to remove its members as provided in Article VI, Section 44[67] of the IBP By-Laws. Issue arises only as to whether the IBP Board abused its authority and discretion in resolving to remove Atty. de Vera from his post as an IBP Governor and EVP. As has been previously established herein, Atty. de Veras removal from the IBP Board was in accordance with due process and the IBP Board acted well within the authority and discretion granted to it by its ByLaws. There being no grave abuse of discretion on the part of the IBP Board, we find no reason to interfere in the Boards resolution to remove Atty. de Vera.

The election of Atty. Salazar by the IBP Board as IBP EVP in replacement of Atty. De Vera was conducted in accordance with the authority granted to the Board by the IBP By-Laws

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In the same manner, we find no reason to disturb the action taken by the 20032005 IBP Board of Governors in holding a special election to fill-in the vacant post resulting from the removal of Atty. de Vera as EVP of the IBP since the same is a purely internal matter, done without grave abuse of discretion, and implemented without violating the Rules and By-Laws of the IBP.

With the removal of Atty. de Vera from the Board, by virtue of the IBP Board Resolution dated 13 May 2005, he was also removed from his post as EVP; thus, there was a resultant vacancy in the position of IBP EVP.

Article VI, Section 41(g) of the IBP By-Laws expressly grants to the Board the authority to fill vacancies, however arising, in the IBP positions, subject to the provisions of Section 8 of the Integration Rule,[68] and Section 11 (Vacancies),[69] Section 44 (Removal of members),[70] Section 47 (National officers),[71] Section 48 (other officers),[72] and Section 49 (Terms of Office)[73]of the By-Laws. The IBP Board has specific and sufficient guidelines in its Rules and By-Laws on how to fill-in the vacancies after the removal of Atty. de Vera. We have faith and confidence in the intellectual, emotional and ethical competencies of the remaining members of the 2005-2007 Board in dealing with the situation within the bounds of the IBP Rules and By-Laws.

The election by the 2003-2005 IBP Board of Governors of a new EVP, who will assume the Presidency for the term 2005-2007, was well within the authority and prerogative granted to the Board by the IBP By-Laws, particularly Article VII, Section 47, which provides that *t+he EVP shall automatically become President for the next succeeding term. The phrase for the next succeeding term necessarily implies that the EVP that should succeed Atty. Cadiz as IBP President for the next succeeding term (i.e., 2005-2007) should come from the members of the 2003-2005 IBP Board of Governors. Hence, in A.M. No. 05-7-19-SC, we restrained now IBP EVP Feliciano Bautista from assuming the position of Acting President because we have yet to resolve the question as to who shall succeed Atty. Cadiz from the 2003-2005 IBP Board of Governors.

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Accordingly, the elections of Governor Santiago on 13 June 2005 as IBP EVP, and thereafter, Governor Salazar on 25 June 2005, as the new IBP EVP, upon the relinquishment of Gov. Santiago of the position, were valid.

Neither can this Court give credence to the argument of Atty. De Vera that, assuming his removal as IBP Governor and EVP was valid, his replacement as IBP EVP should come from Eastern Mindanao Region pursuant to the rotation rule set forth in Article VII, Section 47, of the IBP By-Laws.

According to Article VII, Section 47, of the IBP By-Laws, the EVP shall be chosen by the Board of Governors from among the nine Regional Governors, as much as practicable, on a rotation basis. This is based on our pronouncements in Bar Matter 491, wherein we ruled:

ORDER

xxxx

3. The former system of having the IBP President and Executive VicePresident elected by the Board of Governors (composed of the governors of the nine [9] IBP regions) from among themselves (as provided in Sec. 47, Art. VII, Original IBP By-Laws) should be restored. The right of automatic succession by the Executive Vice-President to the presidency upon the expiration of their two-year term (which was abolished by this Court's resolution dated July 9, 1985in Bar Matter No. 287) should be as it is hereby restored.

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4. At the end of the President's two-year term, the Executive VicePresident shall automatically succeed to the office of president. The incoming board of governors shall then elect an Executive Vice-President from among themselves.The position of Executive Vice-President shall be rotated among the nine (9) IBP regions. One who has served as president may not run for election as Executive Vice-President in a succeeding election until after the rotation of the presidency among the nine (9) regions shall have been completed; whereupon, the rotation shall begin anew.

xxxx (Emphasis Supplied)

In Bar Matter 491, it is clear that it is the position of IBP EVP which is actually rotated among the nine Regional Governors. The rotation with respect to the Presidency is merely a result of the automatic succession rule of the IBP EVP to the Presidency. Thus, the rotation rule pertains in particular to the position of IBP EVP, while the automatic succession rule pertains to the Presidency. The rotation with respect to the Presidency is but a consequence of the automatic succession rule provided in Section 47 of the IBP By-Laws.

In the case at bar, the rotation rule was duly complied with since upon the election of Atty. De Vera as IBP EVP, each of the nine IBP regions had already produced an EVP and, thus, the rotation was completed. It is only unfortunate that the supervening event of Atty. de Veras removal as IBP Governor and EVP rendered it impossible for him to assume the IBP Presidency. The fact remains, however, that the rotation rule had been completed despite the non-assumption by Atty. de Vera to the IBP Presidency.

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Moreover, the application of the rotation rule is not a license to disregard the spirit and purpose of the automatic succession rule, but should be applied in harmony with the latter. The automatic succession rule affords the IBP leadership transition seamless and enables the new IBP National President to attend to pressing and urgent matters without having to expend valuable time for the usual adjustment and leadership consolidation period. The time that an IBP EVP spends assisting a sitting IBP President on matters national in scope is in fact a valuable and indispensable preparation for the eventual succession. It should also be pointed out that this wisdom is further underscored by the fact that an IBP EVP is elected from among the members of the IBP Board of Governors, who are serving in a national capacity, and not from the members at large. It is intrinsic in the IBP By-Laws that one who is to assume the highest position in the IBP must have been exposed to the demands and responsibilities of national leadership.

It would therefore be consistent with the purpose and spirit of the automatic succession rule for Governor Salazar to assume the post of IBP President. By electing the replacement EVP from among the members of the 2003-2005 Board of Governors, the IBP benefits from the experience of the IBP EVP of 2003-2005 in this case, Governor Salazar who would have served in a national capacity prior to his assumption of the highest position.

It will also be inconsistent with the purpose and spirit of the automatic succession rule if the EVP for the term 2003-2005 will be elected exclusively by the members of the House of Delegates of the Eastern Mindanao region. This Court notes that the removal of Atty. De Vera in 13 May 2005 was about a month before the expiration of the term of office of the 2003-2005 Board of Governors. Hence, the replacement Governor would not have been able to serve in a national capacity for two years prior to assuming the IBP Presidency. In any case, Section 47 of the IBP Rules uses the phrase as much as practicable to clearly indicate that the rotation rule is not a rigid and inflexible rule as to bar exceptions in compelling and exceptional circumstances.

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It is in view of the foregoing that the argument advanced by Atty. De Vera that the IBP national presidency should be assumed by a nominee from Eastern Mindanao region from where he comes, can not hold water. It would go against the intent of the IBP ByLaws for such a nominee would be bereft of the wealth of experience and the perspective that only one who is honed in service while serving in a national post in the IBP would have. We therefore rule that the IBP Board of Governors acted in accordance with the IBP By-Laws, in electing Atty. Salazar as IBP EVP and in ensuring a succession in the leadership of the IBP. Had the Board of Governors not done so, there would have been no one qualified to assume the Presidency of the IBP on 1 July 2005, pursuant to Section 47 of the IBP By-Laws.

WHEREFORE, in view of the foregoing, we rule as follows:

1)

SUSPEND Atty. Leonard de Vera in A.C. No. 6697 from the practice of law for TWO (2) YEARS, effective from the finality of this Resolution. Let a copy of this Resolution be attached to the personal record of Atty. Leonard de Vera and copies furnished the Integrated Bar of the Philippines and the Office of the Court Administrator for dissemination to all courts;

2)

DISMISS the letter-complaint of Atty. Leonard de Vera, dated 18 May 2005, in A.M. No. 05-5-15-SC, praying for the disapproval of the Resolution, dated 13 May 2005, of the Board of Governors of the Integrated Bar of the Philippines removing him from his posts as Governor and Executive Vice President of the Integrated Bar of the Philippines, the said Resolution having been rendered without grave abuse of discretion;

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3)

AFFIRM the election by the Board of Governors of Atty. Jose Vicente B. Salazar as Executive Vice President of the Integrated Bar of the Philippines for the remainder of the term 2003-2005, such having been conducted in accordance with its By-Laws and absent any showing of grave abuse of discretion; and

4)

DIRECT Atty. Jose Vicente B. Salazar to immediately take his oath of office and assume the Presidency of the Integrated Bar of the Philippines for the term 2005-2007 in accordance with the automatic succession rule in Article VII, Section 47 of the IBP By-Laws, upon receipt of this Resolution.

SO ORDERED.

ARTEMIO V. PANGANIBAN Chief Justice

REYNATO S. PUNO Associate Justice

LEONARDO A. QUISUMBING Associate Justice

CONSUELO YNARES-SANTIAGO ANGELINA SANDOVAL-GUTIERREZ Associate Justice Associate Justice

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ANTONIO T. CARPIO Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

RENATO C. CORONA Associate Justice

CONCHITA CARPIO MORALES Associate Justice

ROMEO J. CALLEJO, SR. Associate Justice

ADOLFO S. AZCUNA Associate Justice

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-22320 July 29, 1968

MERCEDES RUTH COBB-PEREZ and DAMASO P. PEREZ, petitioners, vs. HON. GREGORIO LANTIN, Judge of the Court of First Instance of Manila, RICARDO P. HERMOSO and the CITY SHERIFF OF MANILA, respondents. Crispin D. Baizas and Associates for petitioners. Isidro T. Almeda for respondents. CASTRO, J.: This is a motion for partial reconsideration of this Court's decision of May 22, 1968, specifically directed against the following observation therein made: We feel compelled to observe that during the protracted litigation below, the petitioners resorted to a series of actions and petitions, at some stages alternatingly, abetted by their counsel, for the sole purpose of thwarting the execution of a simple money judgment which has long become final and executory. Some of the actions were filed, only to be abandoned or withdrawn. The petitioners and their counsel, far from viewing courts as sanctuaries for those who seek justice, have tried to use them to subvert the very ends of justice. Corollarily, this Court assessed treble costs against the petitioners, to "be paid by their counsel.". The herein movants, Attys. Crispin D. Baizas and A. N. Bolinas, counsels for the petitioners, while submitting to the judgment on the merits, seek reconsideration of the decision in so far as it reflects adversely upon their "professional conduct" and condemns them to pay the treble costs adjudged against their clients. At first blush, the motion for reconsideration presents a semblance of merit. After mature deliberation and patient reprobing into the records of the case, however, we are of the firmer conviction that the protracted litigation, alluded to in the above-quoted portion of our decision, was designed to cause delay, and the active participation of the petitioners' counsels in this adventure is patent. After November 15, 1962 when the Court of Appeals rendered judgment sustaining Damaso Perez' position with respect to the extent of the levy, the subsequent proceedings interposed alternatingly by the petitioner spouses were obviously quixotic maneuvers expected to be overthrown by the courts but calculated to delay an execution long overdue. Had the petitioners and their counsels seriously believed that the levied shares of stock were conjugal property, why did they not adopt this position from the very start, or, at the latest, in CA-G.R. 29962-R, wherein Damaso Perez challenged the legality of the levy's coverage, in order to end the litigation with reasonable dispatch? They chose, however, to attack the execution in a piecemeal fashion, causing the postponement of the projected execution sale six times. More than eight years after the finality of the judgment have passed, and the same has yet to be satisfied. In a determined effort to prolong the litigation, the Perez spouses, as represented by their counsels, sought the issuance of preliminary injunctions to restrain the execution of the final judgment in civil case 39407 from courts which did not have jurisdiction and which would, as expected, initially or ultimately deny their prayer.

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For instance, after Damaso Perez bowed out temporarily from the scene following the rendition of the aforementioned Court of Appeals decision, his wife, Mercedez, Ruth Cobb-Perez, intruded into the controversy and asked for an ex parte writ of preliminary injunction from the Court of First Instance of Rizal in connection with civil case 7532 which she filed with the said court, knowing fully well that the basic civil case 39407 was decided by the Court of First Instance of Manila (Branch VII presided by the respondent Judge Lantin), which latter court was the proper forum for any action relative to the execution. Judge Eulogio Mencias of the Court of First Instance of Rizal, looking to Acosta vs. Alvendia (L-14598, October 31, 1960), which held that courts of first instance have no power to restrain acts outside their territorial jurisdictions, lifted on October 4, 1963 the ex parte writ which he previously issued enjoining the respondent sheriff from carrying out the execution sale. It is clear, however, that Mrs. Perez and her counsels, the movants, knew or ought to have known beforehand that the Court of First Instance of Rizal did not have jurisdiction to issue the writ which Mrs. Perez herself sought, and, anticipating the recall of the writ improvidently issued, on September 3, 1963, a month before the said writ was actually lifted, filed in the basic civil case 39407 an urgent motion to lift the writ of execution issued on August 15, 1961, alleging as justification the conjugal nature of the levied shares of stock and the personal nature of Damaso Perez' judgment debt, the very same reasons advanced in civil case 7532 which was then still pending in the Court of First Instance of Rizal. Incidentally, Mrs. Perez failed to adduce any evidence in support of her aforesaid urgent motion, as in fact neither she nor her counsels appeared during the scheduled hearing, prompting the respondent judge to issue the following order: When the urgent motion to recall or lift writ of execution was called this morning for hearing, counsel for the movant did not appear despite the fact that he had been duly notified of the motion for hearing. In view thereof the court assumes that he is waiving his right to present evidence in support of his urgent motion to recall or lift writ of execution. Said urgent motion is therefore deemed submitted for resolution. Despite the recall of the aforementioned writ of injunction by Judge Mencias on a disclaimer of jurisdiction (since the execution sought to be enjoined was ordered by another tribunal), Mrs. Perez, now assisted by her husband who had staged a comeback, prayed for the issuance of another injunction, this time from Branch XXII of the Court of First Instance of Manila (not the same Branch which issued the controverted writ of execution), in connection with civil case 7532, then still pending in the Court of First Instance of Rizal. As most probably anticipated anew by the Perez spouses and their counsels, Judge Alikpala, presiding judge of Branch XXII, on November 8, 1963 denied the preliminary injunction sought, on the ground, among others, that he had no power to interfere by injunction with the judgment or decree of a court of concurrent or coordinate jurisdiction. On the very day the injunction was denied, Damaso Perez, as if expecting the reversal from Judge Alikpala, was already prepared with another "remedy," as in fact on that day, November 8, 1963, he filed in the basic civil case 39407 an "Urgent Motion for Reconsideration" of the order of October 19, 1963, which denied his wife's above-mentioned motion to recall the controverted writ of execution. The foregoing motion, far from seriously seeking the reconsideration of the order of October 19, 1963, which in the first place Damaso Perez could not legally do for he was not even a party to the denied "Urgent Motion to Recall Writ of Execution" (filed by his wife alone), was merely an offer to replace the levied stocks with supposed cash dividends due to the Perez spouses as stockholders in the Republic Bank.1 As a matter of fact, when the motion was set for hearing on December 21, 1963, the counsels for Damaso Perez promised to produce the said cash dividends within five days, but the promise was never fulfilled.2 Consequently, the respondent Judge on January 4, 1964, denied the said motion for reconsideration. The above exposition of the circumstances relative to the protracted litigation clearly negates the avowal of the movants that "in none of the various incidents in the case at bar has any particular counsel of petitioners acted with deliberate aforethought to delay the enforcement of the judgment in Civil Case No. 39407." From the chronology of antecedent events, the fact becomes inescapable that the Perez spouses, coached by their counsels, had sallied forth on a strategem of "remedies" projected to foil the lawful execution of a simple money judgment. It is equally obvious that they foreshadowed their own reversals in the "remedies" they ventured to adopt, such that even before, one remedy had been exhausted, they interposed another

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until the case reached this Court for the second time. 3 Meanwhile, justice was delayed, and more than one member of this Court are persuaded that justice was practically waylaid. The movants also contend that even this Court sanctions the aforesaid civil cases 7532 and 55292 as the "proper remedy" when we said that. In reality, what they attacked is not the writ of execution, the validity and regularity of which are unchallenged, but the levy made by the respondent Sheriff. In this regard, the remedy is not the recall of the writ, but an independent action to enjoin the Sheriff from proceeding with the projected sale, in which action the conjugal nature of the levied stocks should be established as a basis for the subsequent issuance of a permanent injunction, in the event of a successful claim. Incidentally, in the course of the protracted litigation, the petitioners had already availed of this remedy in civil cases 7532 and 55292, only to abandon it as they incessantly sought other, and often simultaneous, devices of thwarting satisfaction of the judgment debt. (Emphasis supplied) . And because of this statement, they now counter that the said cases could not be branded as having been instituted for delay. The reference we made to civil cases 7532 and 55292 in the above-quoted statement must not be considered out of context. We said that the petitioners incidentally had already availed of the suggested remedy only in the sense that said civil cases 7532 and 55292 were apparently instituted to prove the conjugal nature of the levied shares of stocks in question. We used the word incidentally advisedly to show that in their incessant search for devices to thwart the controverted execution, they accidentally stumbled on the suggested remedy. But the said civil cases were definitely not the "proper remedy" in so far as they sought the issuance of writs of preliminary injunction from the Court of First Instance of Rizal and the Court of First Instance of Manila (Branch XXII) where civil cases 7532 and 55292 were filed respectively, for the said courts did not have jurisdiction to restrain the enforcement of the writ of execution issued by the Court of First Instance of Manila (Branch VII) under the settled doctrines that Courts are without power to restrain acts outside of their territorial jurisdiction 4 or interfere with the judgment or decree of a court of concurrent or coordinate jurisdiction. 5 However, the recall and the denial of the writs of preliminary injunction in civil cases 7532 and 55292 did not amount to the termination or dismissal of the principal action in each case. Had the Perez spouses desired in earnest to continue with the said cases they could have done so. But the fact is that Mrs. Perez practically abandoned civil case 7532 when she instituted the above mentioned urgent motion to recall writ of execution in the basic civil case 39407, anchored on the same grounds which she advanced in the former case, until the said civil case 7532 was dismissed on November 9, 1963, upon her own motion. Anent civil case 55292, the Perez spouses virtually deserted the same when they instituted the herein petition for certiorari with urgent writ of preliminary injunction based on the same grounds proffered in the said civil case until the latter was also dismissed on March 20, 1964, with the consent of the parties because of the pendency then of the aforesaid petition for certiorari. The movants further contend that "If there was delay, it was because petitioners' counsel happened to be more assertive ... a quality of the lawyers (which) is not to be condemned." A counsel's assertiveness in espousing with candour and honesty his client's cause must be encouraged and is to be commended; what we do not and cannot countenance is a lawyer's insistence despite the patent futility of his client's position, as in the case at bar. It is the duty of a counsel to advise his client, ordinarily a layman to the intricacies and vagaries of the law, on the merit or lack of merit of his case. If he finds that his client's cause is defenseless, then it is his bounden duty to advise the latter to acquiesce and submit, rather than traverse the incontrovertible. A lawyer must resist the whims and caprices of his client, and temper his client's propensity to litigate. A lawyer's oath to uphold the cause of justice is superior to his duty to his client; its primacy is indisputable. The movants finally state that the "Petitioners have several counsel in this case but the participation of each counsel was rather limited implying that the decision of this Court ordering that "treble costs are assessed against the petitioners, which shall be paid by their counsel" is not clear. The word "counsel" may be either

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singular or plural in construction, so that when we said "counsel" we meant the counsels on record of the petitioners who were responsible for the inordinate delay in the execution of the final judgment in the basic civil case 39407, after the Court of Appeals had rendered its aforementioned decision of November 15, 1962. And it is on record that the movants are such counsels. Atty. Bolinas, upon his own admission, "entered his appearance in the case at bar about the time the Court of First Instance of Manila dismissed the petitioners' Petition for Relief in Civil Case No. 39407," or about August 3, 1961 and even prior to the Court of Appeals decision above-mentioned. Atty. Baizas claims that he "became petitioners' counsel only in October, 1963 when he filed, with Atty. A.N. Bolinao, Jr. Civil Case No. 55292 before the Court of First Instance of Manila presided by the Hon. Judge Alikpala although it appears on record that the urgent motion to recall writ of execution filed by Mrs. Perez in the basic civil case 39407 on September 3, 1963, was over the signature of one Ruby Zaida of the law firm of "Crispin Baizas & Associates" as counsel for Mrs. Perez. It is to be recalled that the said urgent motion is the same motion discussed above, which, curiously enough, antedated by at least one month the lifting of the writ of preliminary injunction issued in civil case 7532. ACCORDINGLY, the motion for partial reconsideration is denied. Our decision of May 22, 1968 is hereby modified in the sense that Attys. Crispin D. Baizas and A.N. Bolinao, Jr. shall pay jointly and severally the treble costs assessed against the petitioners. Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, and Angeles, JJ., concur. Concepcion C.J., voted for denial of the motion for reconsideration. Fernando, J., took no part. Footnotes
1

See "Urgent Motion for Reconsideration," Annex "G" of Petition for Certiorari with Urgent Writ of Preliminary Injunction.
2

See "Manifestation," Annex "2" of Answer.

On February 4, 1961, Damaso Perez and Gregorio Subong elevated the judgment in the basic civil case 39407 to this Court on a petition for certiorari, which was denied for lack of merit.
4

Acosta, et al. vs. Alvendia, et al., L-14598, October 31, 1960; Samar Mining Co., Inc. vs, Arnado, L17109, June 30, 1961; Alhambra Cigar and Cigarette Manufacturing Co., Inc. vs. The National Administrator of Regional Office No. 2, etc., et al., L-20491, August 31, 1965, and the cases cited therein.
5

Cabigao vs. Del Rosario, 44 Phil. 182; Philippine National Bank vs. Javellana, 92 Phil. 525; Araneta vs. Commonwealth Insurance Co., 103 Phil. 522.

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Republic of the Philippines SUPREME COURT Manila EN BANC DECISION June 30, 1961 G.R. No. L-14066 VENANCIO CASTAEDA, ET AL., plaintiffs-appellees, vs. PASTOR D. AGO, ET AL., defendants-appellants. Quijano and Azores and J.P. Arroyo for plaintiffs-appellees. Jose M. Luison for defendants-appellants. Dizon, J.: Appeal from the decision of the Court of First Instance of Manila dated May 30, 1957, and its order of March 7, 1958 (R.A. pp. 46-58 & 156-157). The former sentenced appellant Pastor D. Ago as follows: . . . to return to the plaintiffs the three pieces of machinery described in the complaint or to pay them jointly and severally the sum of P30,000. Said defendants are also hereby sentenced to pay the plaintiffs jointly and severally the sum of P1,750.00 for the month of August 3 to September 3, 1954 and from September 4, 1954 and until the three pieces of machinery are returned to the plaintiffs or paid them the sum of P30,000, the sum of P1,312.50 monthly, deducting therefrom the sum of P3,000.00 admitted by the plaintiffs to have been paid to them by the defendants, plus the sum of P2,000.00 as attorneys fees, with legal interest on all those amounts from the date the complaint was filed and until they are fully paid. Said defendants are also sentenced to pay the costs of these proceedings. The order appealed from denied appellants original and amended motion for reconsideration and new trial. Appellees commenced this action to recover from appellant the three pieces of machinery described in their complaint, the sum of P18,000.00, with interest thereon at the legal rate from the date of filing of the complaint, the additional sum of P2,000.00 as attorneys fees, and the costs of suit. The complaint alleged that appellee delivered to appellant the machineries described therein together with one D-7 Caterpillar Tractor with a Bulldozer, as their share in the capital of the logging business they had agreed to engage in with him for a period of one year from August 3, 1954; that their written contract provided that appellant and appellees would divide equally the profits that may be realized in the business in excess of the sum of P7,750.00, this amount having been agreed to be the least share of appellees in said profits, to which they would be entitled even if the profits realized were less than said sum; that the tractor was returned to appellees after one month use; that appellant had paid to appellees, on account of their share in the profits, only the sum of P3,000.00; that upon expiration of the period of one year agreed upon, appellees demanded from defendant the return of the three pieces of machinery, and the payment of their share in the profits of their business, but appellant refused to comply with such demand and instead asked that their agreement be renewed.

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Appellant filed his answer alleging that appellees had not complied with their obligation to furnish him with the spare parts and accessories necessary to place the machineries in working condition, to obtain which appellant had to spend the sum of P19,640.00; that the D-7 Caterpillar was not returned by him but was seized from him by virtue of a writ of replevin issued in another case. By way of counterclaim, appellant sought to recover damages resulting from the taking away from him of the D-7 Caterpillar Tractor and appellees failure to comply with other stipulations of their agreement. Because neither appellant nor his counsel appeared when the case was called for trial on August 14, 1956, appellees were allowed to present their evidence, and on May 30, 1957 the court rendered the decision appealed from. On July 1, 1957, appellant filed his original verified motion for reconsideration, the principal ground relied upon therein being that the notice of trial was sent to the Manila address of Atty. Mariano Yap who was no longer his attorney at that time; that in the latter part of December, 1955, appellant requested a clerk in the law office of his attorney Francisco Cupin to tell the latter to file his appearance in a substitution of Atty. Yap, but due to the fact that Atty. Francisco Cupin was busy at hat time with his election protest in connection with the 1955 mayoralty fight in Butuan City where Atty. Cupin was a candidate, as found out later by the defendant Mr. Ago, said clerk was unable to tell Atty. Cupin of this request and as a result no such change of counsels and addresses was duly made; that when the office of Atty. Yap received the notice of trial, his clerk sent the same by ordinary mail to appellant in Butuan City, which notice, however, was never received by him; that these circumstances caused his failure to appear at the trial. The above-mentioned motion for reconsideration, however was not accompanied by any affidavit of merits. Appellees, on July 19, 1957, opposed it precisely on this particular ground, and further contended that the negligence or mistake committed by appellant and counsel was not excusable. On January 31, 1958 appellees filed supplemental opposition alleging that appellants attorneys of record were Attys. Calo, Cupin and Yap; that was only after 15 months from the date of the trial and 5 months after appellant learned of the decision that said law firm withdrew its appearance from the case. In this connection it is worthy of notice that the original motion for reconsideration (R.A. pp. 64-68) was signed by Atty. Francisco R. Cupin a member of said law firm. On February 1, 1958, that is, seven months after the filing of the original motion for reconsideration, appellant filed a verified amended motion for reconsideration and new trial, supported by the affidavits of appellant Pastor D. Ago, in one of which he claimed that he had a good and valid defense showing contrary to the allegations made in his answer to the complaint to the effect that their agreement was renewed for one year that the written agreement attached to the complaint as Annex A and on which appellees based their cause of action had been cancelled prior to the filing of the complaint and upon the seizure by replevin of the D-7 Caterpillar Tractor with bulldozer mentioned therein which seizure took place only a month after the contract was entered into on August 3, 1954; that appellees had committed a breach of the aforesaid agreement by not furnishing appellant with the required spare parts and accessories to put the remaining machineries in running condition; that said breach on the part of appellees entitled appellant to withdraw from the agreement; that after the cancellation of the agreement on September 12, 1954, the parties thereto agreed that appellant would simply rent the remaining machineries at the rate of P750.00 per month, which rent appellant had been paying until the present

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action was commenced. Appellees objected to the consideration of the amended motion claiming that the same was filed without leave of court and not in accordance with the requirements of Section 3, Rule 17; that the affidavit of merits did not state facts but mere conclusions; that it was filed too late, that is, more than 7 months after appellant had received notice of the decision. After appellant had filed a reply to this opposition, the lower court issued its order of March 7, 1958, the pertinent portions of which read as follows: The original motion was patently defective; and to admit, and give due course to, the amended motion would in effect allow a motion for reconsideration or call it a petition for relief beyond the period or periods fixed by the Rules of Court. Indeed, the Court cannot accept defendants theory that they were not legally notified of the trial or that they have filed appropriate motion or petition with the necessary affidavits of merit within the reglementary period. WHEREFORE the motion for reconsideration as well as the amended motion for reconsideration is denied for lack of merit. The issue decisive of this appeal, therefore, is whether or not the lower court erred in denying the motion for reconsideration and the amended motion for reconsideration and new trial mentioned heretofore. In the light of the facts already stated above, we are constrained to hold that the lower court did not commit this error. The record discloses that the attorneys of record of appellant who filed his answer to the complaint were Attys. Calo, Cupin and Yap. On the other hand, appellant admits that the notice of the trial was sent to and was received by Atty. Mariano Yap, a member of said law firm. At that time no withdrawal of appearance had been filed neither by the aforesaid law firm itself nor by Atty. Yap alone. Consequently, appellants own allegations show that the service of the notice of the trial was proper and in accordance with the rules. Moreover, appellants original motion, as the lower court held, was fatally defective, firstly, because it did not sufficiently prove by affidavit or otherwise the alleged accident, mistake or excusable negligence relied upon, and secondly, the same was not supported by an affidavit of merit showing that appellant had a good and valid defense. This latter defect appellant obviously sought to cure more than seven months later when he filed his amended motion for reconsideration and new trial. It must be adverted to that when appellees, on July 19, 1957, filed a written opposition to appellants original motion for reconsideration, they pointed out as first ground in support thereof precisely the lack of affidavit of merits to support the aforesaid motion. Although appellant had notice of this defect of his motion since then, it was only on February 1, 1958, that is, almost seven months thereafter that he made a desperate attempt to cure it by filing an amended motion. Now, as far as appellants appeal from the decision of the lower court is concerned, little need be said. The evidence presented by appellees was uncontradicted and sufficiently supports the findings of fact made and conclusions of law drawn therefrom by the trial court. We agree, therefore, with the lower court that appellees are entitled to the return of the three pieces of machinery described in their complaint or to the payment of their value in the sum of P30,000.00, and that in accordance with the

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contract Exhibit A, they are further entitled to the sums of money specified in the dispositive part of the decision appealed from. WHEREFORE, the decision and the order appealed from are affirmed, with costs. Bengzon, C.J. Padilla, Labrador, Concepcion, Reyes, J.B.L., Paredes, De Leon and Natividad, JJ., concur. Bautista Angelo and Barrera, JJ., took no part.

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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 104599 March 11, 1994 JON DE YSASI III, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION (FOURTH DIVISION), CEBU CITY, and JON DE YSASI,respondents. F.B. Santiago, Nalus & Associates for petitioner. Ismael A. Serfino for private respondent.

REGALADO, J.: The adage that blood is thicker than water obviously stood for naught in this case, notwithstanding the vinculum of paternity and filiation between the parties. It would indeed have been the better part of reason if herein petitioner and private respondent had reconciled their differences in an extrajudicial atmosphere of familial amity and with the grace of reciprocal concessions. Father and son opted instead for judicial intervention despite the inevitable acrimony and negative publicity. Albeit with distaste, the Court cannot proceed elsewise but to resolve their dispute with the same reasoned detachment accorded any judicial proceeding before it. The records of this case reveal that petitioner was employed by his father, herein private respondent, as farm administrator of Hacienda Manucao in Hinigaran, Negros Occidental sometime in April, 1980. Prior thereto, he was successively employed as sales manager of Triumph International (Phil.), Inc. and later as operations manager of Top Form Manufacturing (Phil.), Inc. His employment as farm administrator was on a fixed salary, with other allowances covering housing, food, light, power, telephone, gasoline, medical and dental expenses. As farm administrator, petitioner was responsible for the supervision of daily activities and operations of the sugarcane farm such as land preparation, planting, weeding, fertilizing, harvesting, dealing with third persons in all matters relating to the hacienda and attending to such other tasks as may be assigned to him by private respondent. For this purpose, he lived on the farm, occupying the upper floor of the house there. Following his marriage on June 6, 1982, petitioner moved to Bacolod City with his wife and commuted to work daily. He suffered various ailments and was hospitalized on two separate occasions in June and August, 1982. In November, 1982, he underwent fistulectomy, or the surgical removal of the fistula, a deep sinuous ulcer. During his recuperation which lasted over four months, he was under the care of Dr. Patricio Tan. In June, 1983, he was confined for acute gastroenteritis and, thereafter, for infectious hepatitis from December, 1983 to January, 1984. During the entire periods of petitioner's illnesses, private respondent took care of his medical expenses and petitioner continued to receive compensation. However, in April, 1984, without due notice, private respondent ceased to pay the latter's salary. Petitioner made oral and written demands for an explanation for the sudden withholding of his salary from Atty. Apolonio Sumbingco, private respondent's auditor and legal adviser, as well as for the remittance of his salary. Both demands, however, were not acted upon.

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Petitioner then filed an action with the National Labor Relations Commission (NLRC, for brevity), Regional Arbitration Branch No. VI, Bacolod City, on October 17, 1984, docketed therein as RAB Case No. 0452-84, against private respondent for illegal dismissal with prayer for reinstatement without loss of seniority rights and payment of full back wages, thirteenth month pay for 1983, consequential, moral and exemplary damages, as well as attorney's fees. On July 31, 1991, said complaint for illegal dismissal was dismissed by the NLRC, 1 holding that petitioner abandoned his work and that the termination of his employment was for a valid cause, but ordering private respondent to pay petitioner the amount of P5,000.00 as penalty for his failure to serve notice of said termination of employment to the Department of Labor and Employment as required by Batas Pambansa Blg. 130 and consonant with this Court's ruling in Wenphil Corporation vs. National Labor Relations Commission, et al. 2 On appeal to the Fourth Division of the NLRC, Cebu City, said decision was affirmed in toto. 3 His motion for reconsideration 4 of said decision having been denied for lack of merit, 5 petitioner filed this petition presenting the following issues for resolution: (1) whether or not the petitioner was illegally dismissed; (2) whether or not he is entitled to reinstatement, payment of back wages, thirteenth month pay and other benefits; and (3) whether or not he is entitled to payment of moral and exemplary damages and attorney's fees because of illegal dismissal. The discussion of these issues will necessarily subsume the corollary questions presented by private respondent, such as the exact date when petitioner ceased to function as farm administrator, the character of the pecuniary amounts received by petitioner from private respondent, that is, whether the same are in the nature of salaries or pensions, and whether or not there was abandonment by petitioner of his functions as farm administrator. In his manifestation dated September 14, 1992, the Solicitor General recommended a modification of the decision of herein public respondent sustaining the findings and conclusions of the Executive Labor Arbiter in RAB Case No. 0452-84, 6 for which reason the NLRC was required to submit its own comment on the petition. In compliance with the Court's resolution of November 16, 1992, 7 NLRC filed its comment on February 12, 1992 largely reiterating its earlier position in support of the findings of the Executive Labor Arbiter. 8 Before proceeding with a discussion of the issues, the observation of the labor arbiter is worth noting:
This case is truly unique. What makes this case unique is the fact that because of the special relationship of the parties and the nature of the action involved, this case could very well go down (in) the annals of the Commission as perhaps the first of its kind. For this case is an action filed by an only son, his father's namesake, the only child and therefore the only heir against his own father. 9

Additionally, the Solicitor General remarked:

. . . After an exhaustive reading of the records, two (2) observations were noted that may justify why this labor case deserves special considerations. First, most of the complaints that petitioner and private respondent had with each other, were personal matters affecting father and son relationship. And secondly, if any of the complaints pertain to their work, they allow their personal relationship to come in the way. 10

I. Petitioner maintains that his dismissal from employment was illegal because of want of just cause therefor and non-observance of the requirements of due process. He also charges the NLRC with grave abuse of discretion in relying upon the findings of the executive labor arbiter who decided the case but did not conduct the hearings thereof. Private respondent, in refutation, avers that there was abandonment by petitioner of his functions as farm administrator, thereby arming private respondent with a ground to terminate his employment at Hacienda Manucao. It is also contended that it is wrong for petitioner to question the factual findings of the executive labor arbiter and the NLRC as only questions of law may be appealed for resolution by this Court.

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Furthermore, in seeking the dismissal of the instant petition, private respondent faults herein petitioner for failure to refer to the corresponding pages of the transcripts of stenographic notes, erroneously citing Sections 15(d) and 16(d), Rule 44 (should be Section 16[c] and [d], Rule 46 and Section 1[g], Rule 50) of the Rules of Court, which provide that want of page references to the records is a ground for dismissal of an appeal. Prefatorily, we take advertence of the provisions of Article 221 of the Labor Code that technical rules of evidence prevailing in courts of law and equity shall not be controlling, and that every and all reasonable means to speedily and objectively ascertain the facts in each case shall be availed of, without regard to technicalities of law or procedure in the interest of due process. It is settled that it is not procedurally objectionable for the decision in a case to be rendered by a judge, or a labor arbiter for that matter, other than the one who conducted the hearing. The fact that the judge who heard the case was not the judge who penned the decision does not impair the validity of the judgment, 11 provided that he draws up his decision and resolution with due care and makes certain that they truly and accurately reflect conclusions and final dispositions on the bases of the facts of and evidence submitted in the case. 12 Thus, the mere fact that the case was initially assigned to Labor Arbiter Ricardo T. Octavio, who conducted the hearings therein from December 5, 1984 to July 11, 1985, and was later transferred to Executive Labor Arbiter Oscar S. Uy, who eventually decided the case, presents no procedural infirmity, especially considering that there is a presumption of regularity in the performance of a public officer's functions, 13 which petitioner has not successfully rebutted. We are constrained to heed the underlying policy in the Labor Code relaxing the application of technical rules of procedure in labor cases in the interest of due process, ever mindful of the long-standing legal precept that rules of procedure must be interpreted to help secure, not defeat, justice. For this reason, we cannot indulge private respondent in his tendency to nitpick on trivial technicalities to boost his arguments. The strength of one's position cannot be hinged on mere procedural niceties but on solid bases in law and jurisprudence. The fundamental guarantees of security of tenure and due process dictate that no worker shall be dismissed except for just and authorized cause provided by law and after due process. 14 Article 282 of the Labor Code enumerates the causes for which an employer may validly terminate an employment, to wit: (a) serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; (b) gross and habitual neglect by the employee of his duties; (c) fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative; (d) commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and (e) other causes analogous to the foregoing. The employer may also terminate the services of any employee due to the installation of labor saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking, unless the closing is for the purpose of circumventing the pertinent provisions of the Labor Code, by serving a written notice on the workers and the Department of Labor and Employment at least one (1) month before the intended date thereof, with due entitlement to the corresponding separation pay rates provided by law.15 Suffering from a disease by reason whereof the continued employment of the employee is prohibited by law or is prejudicial to his and his co-employee's health, is also a ground for termination of his services provided he receives the prescribed separation pay. 16 On the other hand, it is well-settled that abandonment by an employee of his work authorizes the employer to effect the former's dismissal from employment. 17 After a careful review of the records of this case, we find that public respondent gravely erred in affirming the decision of the executive labor arbiter holding that petitioner abandoned his employment and was not illegally dismissed from such employment. For want of substantial bases, in fact or in law, we cannot give the stamp of finality and conclusiveness normally accorded to the factual findings of

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an administrative agency, such as herein public respondent NLRC, 18 as even decisions of administrative agencies which are declared "final" by law are not exempt from judicial review when so warranted. 19 The following perceptive disquisitions of the Solicitor General on this point deserve acceptance: It is submitted that the absences of petitioner in his work from October 1982 to December 1982, cannot be construed as abandonment of work because he has a justifiable excuse. Petitioner was suffering from perennial abscess in the peri-anal around the anus and fistula under the medical attention of Dr. Patricio Tan of Riverside Medical Center, Inc., Bacolod City (Tsn, Vol. III, Dr. Tan, February 19, 1986 at 20-44). This fact (was) duly communicated to private respondent by medical bills sent to Hacienda Manucao (Tsn, Vol. III, Dr. Tan, January 22, 1987 at 49-50). During the period of his illness and recovery, petitioner stayed in Bacolod City upon the instruction(s) of private respondent to recuperate thereat and to handle only administrative matters of the hacienda in that city. As a manager, petitioner is not really obliged to live and stay 24 hours a day inside Hacienda Manucao. xxx xxx xxx After evaluating the evidence within the context of the special circumstances involved and basic human experience, petitioner's illness and strained family relation with respondent Jon de Ysasi II may be considered as justifiable reason for petitioner Jon de Ysasi III's absence from work during the period of October 1982 to December 1982. In any event, such absence does not warrant outright dismissal without notice and hearing. xxx xxx xxx The elements of abandonment as a ground for dismissal of an employee are as follows: (1) failure to report for work or absence without valid or justifiable reason; and (2) clear intention to sever the employer-employee tie (Samson Alcantara, Reviewer in Labor and Social Legislation, 1989 edition, p. 133). This Honorable Court, in several cases, illustrates what constitute abandonment. In Dagupan Bus Company v. NLRC (191 SCRA 328), the Court rules that for abandonment to arise, there must be a concurrence of the intention to abandon and some overt act from which it may be inferred that the employee has no more interest to work. Similarly, in Nueva Ecija I Electric Cooperative, Inc. v. NLRC(184 SCRA 25), for abandonment to constitute a valid cause for termination of employment, there must be a deliberate, unjustified refusal of the employee to resume his employment. . . Mere absence is not sufficient; it must be accompanied by overt acts unerringly pointing to the fact that the employee simply does not want to work anymore.
There are significant indications in this case, that there is no abandonment. First, petitioner's absence and his decision to leave his residence inside Hacienda Manucao, is justified by his illness and strained family relations. Second he has some medical certificates to show his frail health. Third, once able to work, petitioner wrote a letter (Annex "J") informing private respondent of his intention to assume again his employment. Last, but not the least, he at once instituted a complaint for illegal dismissal when he realized he was unjustly dismissed. All these are indications that petitioner had no intention to abandon his employment. 20

The records show that the parties herein do not dispute the fact of petitioner's confinement in the hospital for his various afflictions which required medical treatment. Neither can it be denied that private respondent was

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well aware of petitioner's state of health as the former admittedly shouldered part of the medical and hospital bills and even advised the latter to stay in Bacolod City until he was fit to work again. The disagreement as to whether or not petitioner's ailments were so serious as to necessitate hospitalization and corresponding periods for recuperation is beside the point. The fact remains that on account of said illnesses, the details of which were amply substantiated by the attending physician, 21 and as the records are bereft of any suggestion of malingering on the part of petitioner, there was justifiable cause for petitioner's absence from work. We repeat, it is clear, deliberate and unjustified refusal to resume employment and not mere absence that is required to constitute abandonment as a valid ground for termination of employment. 22 With his position as farm administrator of Hacienda Manucao, petitioner unmistakably may be classified as a managerial employee 23 to whom the law grants an amount of discretion in the discharge of his duties. This is why when petitioner stated that "I assigned myself where I want to go," 24 he was simply being candid about what he could do within the sphere of his authority. His duties as farm administrator did not strictly require him to keep regular hours or to be at the office premises at all times, or to be subjected to specific control from his employer in every aspect of his work. What is essential only is that he runs the farm as efficiently and effectively as possible and, while petitioner may definitely not qualify as a model employee, in this regard he proved to be quite successful, as there was at least a showing of increased production during the time that petitioner was in charge of farm operations. If, as private respondent contends, he had no control over petitioner during the years 1983 to 1984, this is because that was the period when petitioner was recuperating from illness and on account of which his attendance and direct involvement in farm operations were irregular and minimal, hence the supervision and control exercisable by private respondent as employer was necessarily limited. It goes without saying that the control contemplated refers only to matters relating to his functions as farm administrator and could not extend to petitioner's personal affairs and activities. While it was taken for granted that for purposes of discharging his duties as farm administrator, petitioner would be staying at the house in the farm, there really was no explicit contractual stipulation (as there was no formal employment contract to begin with) requiring him to stay therein for the duration of his employment or that any transfer of residence would justify the termination of his employment. That petitioner changed his residence should not be taken against him, as this is undeniably among his basic rights, nor can such fact of transfer of residenceper se be a valid ground to terminate an employer-employee relationship. Private respondent, in his pleadings, asserted that as he was yet uncertain of his son's intention of returning to work after his confinement in the hospital, he kept petitioner on the payroll, reported him as an employee of thehacienda for social security purposes, and paid his salaries and benefits with the mandated deductions therefrom until the end of December, 1982. It was only in January, 1983 when he became convinced that petitioner would no longer return to work that he considered the latter to have abandoned his work and, for this reason, no longer listed him as an employee. According to private respondent, whatever amount of money was given to petitioner from that time until April, 1984 was in the nature of a pension or an allowance or mere gratuitous doles from a father to a son, and not salaries as, in fact, none of the usual deductions were made therefrom. It was only in April, 1984 that private respondent completely stopped giving said pension or allowance when he was angered by what he heard petitioner had been saying about sending him to jail. Private respondent capitalizes on the testimony of one Manolo Gomez taken on oral deposition regarding petitioner's alleged statement to him, "(h)e quemado los (p)ue(n)tes de Manucao" ("I have burned my bridges with Manucao") as expressive of petitioner's intention to abandon his job. In addition to insinuations of sinister motives on the part of petitioner in working at the farm and thereafter abandoning the job upon accomplishment of his objectives, private respondent takes the novel position that the agreement to support his son after the latter abandoned the administration of the farm legally converts the initial abandonment to implied voluntary resignation.25 As earlier mentioned, petitioner ripostes that private respondent undoubtedly knew about petitioner's illness and even paid for his hospital and other medical bills. The assertion regarding abandonment of work, petitioner argues, is further belied by his continued performance of various services related to the operations

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of the farm from May to the last quarter of 1983, his persistent inquiries from his father's accountant and legal adviser about the reason why his pension or allowance was discontinued since April, 1984, and his indication of having recovered and his willingness and capability to resume his work at the farm as expressed in a letter dated September 14, 1984. 26 With these, petitioner contends that it is immaterial how the monthly pecuniary amounts are designated, whether as salary, pension or allowance, with or without deductions, as he was entitled thereto in view of his continued service as farm administrator. 27 To stress what was earlier mentioned, in order that a finding of abandonment may justly be made there must be a concurrence of two elements, viz.: (1) the failure to report for work or absence without valid or justifiable reason, and (2) a clear intention to sever the employer-employee relationship, with the second element as the more determinative factor and being manifested by some overt acts. Such intent we find dismally wanting in this case. It will be recalled that private respondent himself admitted being unsure of his son's plans of returning to work. The absence of petitioner from work since mid-1982, prolonged though it may have been, was not without valid causes of which private respondent had full knowledge. As to what convinced or led him to believe that petitioner was no longer returning to work, private respondent neither explains nor substantiates by any reasonable basis how he arrived at such a conclusion. Moreover, private respondent's claim of abandonment cannot be given credence as even after January, 1983, when private respondent supposedly "became convinced" that petitioner would no longer work at the farm, the latter continued to perform services directly required by his position as farm administrator. These are duly and correspondingly evidenced by such acts as picking up some farm machinery/equipment from G.A. Machineries, Inc., 28 claiming and paying for additional farm equipment and machinery shipped by said firm from Manila to Bacolod through Zip Forwarders, 29 getting the payment of the additional cash advances for molasses for crop year 1983-1984 from Agrotex Commodities, Inc., 30 and remitting to private respondent through Atty. Sumbingco the sums collected along with receipts for medicine and oil. 31 It will be observed that all of these chores, which petitioner took care of, relate to the normal activities and operations of the farm. True, it is a father's prerogative to request or even command his child to run errands for him. In the present case, however, considering the nature of these transactions, as well as the property values and monetary sums involved, it is unlikely that private respondent would leave the matter to just anyone. Prudence dictates that these matters be handled by someone who can be trusted or at least be held accountable therefor, and who is familiar with the terms, specifications and other details relative thereto, such as an employee. If indeed petitioner had abandoned his job or was considered to have done so by private respondent, it would be awkward, or even out of place, to expect or to oblige petitioner to concern himself with matters relating to or expected of him with respect to what would then be his past and terminated employment. It is hard to imagine what further authority an employer can have over a dismissed employee so as to compel him to continue to perform work-related tasks: It is also significant that the special power of attorney 32 executed by private respondent on June 26, 1980 in favor of petitioner, specifically stating xxx xxx xxx That I, JON de YSASI, Filipino, of legal age, married, and a resident of Hda. Manucao, hereinafter called and referred to as PRINCIPAL, am a sugarcane planter, BISCOM Mill District, and a duly accredited planter-member of the BINALBAGAN-ISABELA PLANTERS' ASSOCIATION, INC.; That as such planter-member of BIPA, I have check/checks with BIPA representing payment for all checks and papers to which I am entitled to (sic) as such planter-member;

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That I have named, appointed and constituted as by these presents I HEREBY NAME, APPOINT AND CONSTITUTE as my true and lawful ATTORNEY-INFACT JON de YSASI III whose specimen signature is hereunder affixed, TO GET FOR ME and in my name, place and stead, my check/checks aforementioned, said ATTORNEY-IN-FACT being herein given the power and authority to sign for me and in my name, place and stead, the receipt or receipts or payroll for the said check/checks. PROVIDED, HOWEVER, that my said ATTORNEY-IN-FACT cannot cash the said check/checks, but to turn the same over to me for my proper disposition. That I HEREBY RATIFY AND CONFIRM the acts of my Attorney-in-Fact in getting the said check/checks and signing the receipts therefor. That I further request that my said check/checks be made a "CROSSED CHECK". xxx xxx xxx remained in force even after petitioner's employment was supposed to have been terminated by reason of abandonment. Furthermore, petitioner's numerous requests for an explanation regarding the stoppage of his salaries and benefits, 33 the issuance of withholding tax reports, 34 as well as correspondence reporting his full recovery and readiness to go back to work, 35 and, specifically, his filing of the complaint for illegal dismissal are hardly the acts of one who has abandoned his work. We are likewise not impressed by the deposition of Manolo Gomez, as witness for private respondent, ascribing statements to petitioner supposedly indicative of the latter's intention to abandon his work. We perceive the irregularity in the taking of such deposition without the presence of petitioner's counsel, and the failure of private respondent to serve reasonably advance notice of its taking to said counsel, thereby foreclosing his opportunity to cross-examine the deponent. Private respondent also failed to serve notice thereof on the Regional Arbitration Branch No. VI of the NLRC, as certified to by Administrative Assistant Celestina G. Ovejera of said office. 36 Fair play dictates that at such an important stage of the proceedings, which involves the taking of testimony, both parties must be afforded equal opportunity to examine and cross-examine a witness. As to the monthly monetary amounts given to petitioner, whether denominated as salary, pension, allowance or ex gratia handout, there is no question as to petitioner's entitlement thereto inasmuch as he continued to perform services in his capacity as farm administrator. The change in description of said amounts contained in the pay slips or in the receipts prepared by private respondent cannot be deemed to be determinative of petitioner's employment status in view of the peculiar circumstances above set out. Besides, if such amounts were truly in the nature of allowances given by a parent out of concern for his child's welfare, it is rather unusual that receipts therefor 37 should be necessary and required as if they were ordinary business expenditures. Neither can we subscribe to private respondent's theory that petitioner's alleged abandonment was converted into an implied voluntary resignation on account of the father's agreement to support his son after the latter abandoned his work. As we have determined that no abandonment took place in this case, the monthly sums received by petitioner, regardless of designation, were in consideration for services rendered emanating from an employer-employee relationship and were not of a character that can qualify them as mere civil support given out of parental duty and solicitude. We are also hard put to imagine how abandonment can be impliedly converted into a voluntary resignation without any positive act on the part of the employee conveying a desire to terminate his employment. The very concept of resignation as a ground for termination by the employee of his employment 38does not square with the elements constitutive of abandonment.

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On procedural considerations, petitioner posits that there was a violation by private respondent of the due process requirements under the Labor Code for want of notice and hearing. 39 Private respondent, in opposition, argues that Section 2, Rule XIV, Book V of the Omnibus Rules Implementing the Labor Code applies only to cases where the employer seeks to terminate the services of an employee on any of the grounds enumerated under Article 282 of the Labor Code, but not to the situation obtaining in this case where private respondent did not dismiss petitioner on any ground since it was petitioner who allegedly abandoned his employment. 40 The due process requirements of notice and hearing applicable to labor cases are set out in Rule XIV, Book V of the Omnibus Rules Implementing the Labor Code in this wise: Sec. 2. Notice of Dismissal. Any employer who seeks to dismiss a worker shall furnish him a written notice stating the particular acts or omission(s) constituting the grounds for his dismissal. In cases of abandonment of work, notice shall be served at the worker's last known address. xxx xxx xxx Sec. 5. Answer and hearing. The worker may answer the allegations as stated against him in the notice of dismissal within a reasonable period from receipt of such notice. The employer shall afford the worker ample opportunity to be heard and to defend himself with the assistance of his representative, if he so desires. Sec. 6. Decision to dismiss. The employer shall immediately notify a worker in writing of a decision to dismiss him stating clearly the reasons therefor. Sec. 7. Right to contest dismissal. Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the Regional Branch of the Commission. xxx xxx xxx Sec. 11. Report of dismissal. The employer shall submit a monthly report to the Regional Office having jurisdiction over the place of work at all dismissals effected by him during the month, specifying therein the names of the dismissed workers, the reasons for their dismissal, the dates of commencement and termination of employment, the positions last held by them and such other information as may be required by the Ministry for policy guidance and statistical purposes. Private respondent's argument is without merit as there can be no question that petitioner was denied his right to due process since he was never given any notice about his impending dismissal and the grounds therefor, much less a chance to be heard. Even as private respondent controverts the applicability of the mandatory twin requirements of procedural due process in this particular case, he in effect admits that no notice was served by him on petitioner. This fact is corroborated by the certification issued on September 5, 1984 by the Regional Director for Region VI of the Department of Labor that no notice of termination of the employment of petitioner was submitted thereto. 41 Granting arguendo that there was abandonment in this case, it nonetheless cannot be denied that notice still had to be served upon the employee sought to be dismissed, as the second sentence of Section 2 of the pertinent implementing rules explicitly requires service thereof at the employee's last known address, by way of substantial compliance. While it is conceded that it is the employer's prerogative to terminate an employee, especially when there is just cause therefor, the requirements of due process cannot be lightly taken. The law does not countenance the arbitrary exercise of such a power or prerogative when it has the effect of undermining the fundamental guarantee of security of tenure in favor of the employee. 42

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On the executive labor arbiter's misplaced reliance on the Wenphil case, the Solicitor General rejoins as follows: The Labor Arbiter held thus: While we are in full agreement with the respondent as to his defense of implied resignation and/or abandonment, records somehow showed that he failed to notify the Department of Labor and Employment for his sons' (sic)/complainants' (sic) aba(n)donment as required by BP 130. And for this failure, the other requisite for a valid termination by an employer was not complied with. This however, would not work to invalidate the otherwise (sic) existence of a valid cause for dismissal. The validity of the cause of dismissal must be upheld at all times provided however that sanctions must be imposed on the respondent for his failure to observe the notice on due process requirement. (Wenphil Corp. v. NLRC, G.R. No. 80587). (Decision Labor Arbiter, at 11-12, Annex "C" Petition), . . .
This is thus a very different case from Wenphil Corporation v. NLRC, 170 SCRA 69. In Wenphil, the rule applied to the facts is: once an employee is dismissed for just cause, he must not be rewarded re-employment and backwages for failure of his employer to observe procedural due process. The public policy behind this is that, it may encourage the employee to do even worse and render a mockery of the rules of discipline required to be observed. However, the employer must be penalized for his infraction of due process. In the present case, however, not only was petitioner dismissed without due process, but his dismissal is without just cause. Petitioner did not abandon his employment because he has a justifiable excuse. 43

II. Petitioner avers that the executive labor arbiter erred in disregarding the mandatory provisions of Article 279 of the Labor Code which entitles an illegally dismissed employee to reinstatement and back wages and, instead, affirmed the imposition of the penalty of P5,000.00 on private respondent for violation of the due process requirements. Private respondent, for his part, maintains that there was error in imposing the fine because that penalty contemplates the failure to submit the employer's report on dismissed employees to the DOLE regional office, as required under Section 5 (now, Section 11), Rule XIV of the implementing rules, and not the failure to serve notice upon the employee sought to be dismissed by the employer. Both the Constitution and the Labor Code enunciate in no uncertain terms the right of every worker to security of tenure. 44 To give teeth to this constitutional and statutory mandates, the Labor Code spells out the relief available to an employee in case of its denial: Art. 279. Security of Tenure. In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits of their monetary equivalent computed from the time his compensation was withheld from him up to the time of actual reinstatement. Clearly, therefore, an employee is entitled to reinstatement with full back wages in the absence of just cause for dismissal. 45 The Court, however, on numerous occasions has tempered the rigid application of said provision of the Labor Code, recognizing that in some cases certain events may have transpired as would militate against the practicability of granting the relief thereunder provided, and declares that where there are strained relations between the employer and the employee, payment of back wages and severance pay may be awarded instead of reinstatement, 46 and more particularly when managerial employees are concerned. 47 Thus, where reinstatement is no longer possible, it is therefore appropriate that the dismissed employee be given his fair and just share of what the law accords him. 48 We note with favor and give our imprimatur to the Solicitor General's ratiocination, to wit:

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As a general rule, an employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and to his backwages computed from the time his compensation was withheld up to the time of his reinstatement. (Morales vs. NLRC, 188 SCRA 295). But in Pacific Cement Company, Inc. vs. NLRC, 173 SCRA 192, this Honorable Court held that when it comes to reinstatement, differences should be made between managers and the ordinary workingmen. The Court concluded that a company which no longer trusts its managers cannot operate freely in a competitive and profitable manner. The NLRC should know the difference between managers and ordinary workingmen. It cannot imprudently order the reinstatement of managers with the same ease and liberality as that of rank and file workers who had been terminated. Similarly, a reinstatement may not be appropriate or feasible in case of antipathy or antagonism between the parties (Morales, vs. NLRC, 188 SCRA 295).
In the present case, it is submitted that petitioner should not be reinstated as farm administrator of Hacienda Manucao. The present relationship of petitioner and private respondent (is) so strained that a harmonious and peaceful employee-employer relationship is hardly possible. 49

III. Finally, petitioner insists on an award of moral damages, arguing that his dismissal from employment was attended by bad faith or fraud, or constituted oppression, or was contrary to morals, good customs or public policy. He further prays for exemplary damages to serve as a deterrent against similar acts of unjust dismissal by other employers. Moral damages, under Article 2217 of the Civil Code, may be awarded to compensate one for diverse injuries such as mental anguish, besmirched reputation, wounded feelings, and social humiliation, provided that such injuries spring from a wrongful act or omission of the defendant which was the proximate cause thereof. 50 Exemplary damages, under Article 2229, are imposed by way of example or correction for the public good, in addition to moral, temperate, liquidated or compensatory damages. They are not recoverable as a matter of right, it being left to the court to decide whether or not they should be adjudicated. 51 We are well aware of the Court's rulings in a number of cases in the past allowing recovery of moral damages where the dismissal of the employee was attended by bad faith or fraud, or constituted an act oppressive to labor, or was done in a manner contrary to morals, good customs or public policy, 52 and of exemplary damages if the dismissal was effected in a wanton, oppressive or malevolent manner. 53 We do not feel, however, that an award of the damages prayed for in this petition would be proper even if, seemingly, the facts of the case justify their allowance. In the aforestated cases of illegal dismissal where moral and exemplary damages were awarded, the dismissed employees were genuinely without fault and were undoubtedly victims of the erring employers' capricious exercise of power. In the present case, we find that both petitioner and private respondent can equally be faulted for fanning the flames which gave rise to and ultimately aggravated this controversy, instead of sincerely negotiating a peaceful settlement of their disparate claims. The records reveal how their actuations seethed with mutual antagonism and the undeniable enmity between them negates the likelihood that either of them acted in good faith. It is apparent that each one has a cause for damages against the other. For this reason, we hold that no moral or exemplary damages can rightfully be awarded to petitioner. On this score, we are once again persuaded by the validity of the following recommendation of the Solicitor General:
The Labor Arbiter's decision in RAB Case No. 0452-84 should be modified. There was no voluntary abandonment in this case because petitioner has a justifiable excuse for his absence, or such absence does not warrant outright dismissal without notice and hearing. Private respondent, therefore, is guilty of illegal dismissal. He should be ordered to pay backwages for a period not exceeding three years from date of dismissal. And in lieu of reinstatement, petitioner may be paid separation pay equivalent to one (1) month('s) salary for every year of service, a fraction of six months being considered as one (1) year in accordance with recent jurisprudence

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(Tan, Jr. vs. NLRC, 183 SCRA 651). But all claims for damages should be dismissed, for both parties are equally at fault. 54

The conduct of the respective counsel of the parties, as revealed by the records, sorely disappoints the Court and invites reproof. Both counsel may well be reminded that their ethical duty as lawyers to represent their clients with zeal 55 goes beyond merely presenting their clients' respective causes in court. It is just as much their responsibility, if not more importantly, to exert all reasonable efforts to smooth over legal conflicts, preferably out of court and especially in consideration of the direct and immediate consanguineous ties between their clients. Once again, we reiterate that the useful function of a lawyer is not only to conduct litigation but to avoid it whenever possible by advising settlement or withholding suit. He is often called upon less for dramatic forensic exploits than for wise counsel in every phase of life. He should be a mediator for concord and a conciliator for compromise, rather than a virtuoso of technicality in the conduct of litigation. 56 Rule 1.04 of the Code of Professional Responsibility explicitly provides that "(a) lawyer shall encourage his client to avoid, end or settle the controversy if it will admit of a fair settlement." On this point, we find that both counsel herein fell short of what was expected of them, despite their avowed duties as officers of the court. The records do not show that they took pains to initiate steps geared toward effecting a rapprochement between their clients. On the contrary, their acerbic and protracted exchanges could not but have exacerbated the situation even as they may have found favor in the equally hostile eyes of their respective clients. In the same manner, we find that the labor arbiter who handled this regrettable case has been less than faithful to the letter and spirit of the Labor Code mandating that a labor arbiter "shall exert all efforts towards the amicable settlement of a labor dispute within his jurisdiction." 57 If he ever did so, or at least entertained the thought, the copious records of the proceedings in this controversy are barren of any reflection of the same. One final word. This is one decision we do not particularly relish having been obliged to make. The task of resolving cases involving disputes among members of a family leaves a bad taste in the mouth and an aversion in the mind, for no truly meaningful and enduring resolution is really achieved in such situations. While we are convinced that we have adjudicated the legal issues herein squarely on the bases of law and jurisprudence, sanssentimentality, we are saddened by the thought that we may have failed to bring about the reconciliation of the father and son who figured as parties to this dispute, and that our adherence here to law and duty may unwittingly contribute to the breaking, instead of the strengthening, of familial bonds. In fine, neither of the parties herein actually emerges victorious. It is the Court's earnest hope, therefore, that with the impartial exposition and extended explanation of their respective rights in this decision, the parties may eventually see their way clear to an ultimate resolution of their differences on more convivial terms. WHEREFORE, the decision of respondent National Labor Relations Commission is hereby SET ASIDE. Private respondent is ORDERED to pay petitioner back wages for a period not exceeding three (3) years, without qualification or deduction, 58 and, in lieu of reinstatement, separation pay equivalent to one (1) month for every year of service, a fraction of six (6) months being considered as one (1) whole year. SO ORDERED. Narvasa, C.J., Padilla, Nocon and Puno, JJ., concur.

#Footnotes

1 Annex C, Petition; Rollo, 57-68; Original Record, Vol. II, 248-259; per Executive Labor Arbiter Oscar S. Uy.

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2 G.R. No. 80587, February 8, 1989, 170 SCRA 69. 3 Annex B, Petition; Rollo, 45-56; Original Record, 400-411; Comm. Irenea E. Ceniza, ponente, Pres. Comm. Ernesto G. Ladrido III and Comm. Bernabe S. Batuhan, concurring. 4 Original Record, Vol. II, 412-421. 5 Annex A, Petition, Rollo, 42-44; Original Record, Vol. II, 466-468. 6 Rollo, 136-149. 7 Ibid., 151. 8 Ibid., 175-180. 9 Original Record, Vol. I, 248. 10 Rollo, 140. 11 Abaya vs. People, et al., G.R. No. 96389, December 11, 1992, 216 SCRA 455. 12 LBC Aircargo, Inc. vs. NLRC, et al., G.R. No. 81815, October 3, 1990, 190 SCRA 274. 13 Sec. 3(m), Rule 131, Rules of Court. 14 Sec. 1, Rule XIV, Book V, Omnibus Rules Implementing the Labor Code. 15 Art. 283, Labor Code. 16 Art. 284, id. 17 A' Prime Security Services, Inc. vs. NLRC, et al., G.R. No. 93476, March 19, 1993, 220 SCRA 142. 18 Cf. Foodmine Inc. vs. NLRC, et al., G.R. No. 84688, August 20, 1990, 188 SCRA 748; Artex Development Co., Inc. vs. NLRC, et al., G.R. No. 65045, July 19, 1990, 187 SCRA 611; Tiu vs. NLRC, et al., G.R. No. 83433, November 12, 1992, 215 SCRA 469. 19 Chung Fu Industries (Phils.), Inc. vs. Court of Appeals, et al., G.R. No. 96283, February 25, 1992, 206 SCRA 545. 20 Rollo, 141, 143-144. 21 TSN, Vol. III, February 19, 1986, 20-43, 60. 22 Batangas Laguna Tayabas Bus Co. vs. NLRC, et al., G.R. No. 101858, August 21, 1992, 212 SCRA 792. 23 Sec. 2(b), Rule I, Book III, Omnibus Rules Implementing the Labor Code provides that employees are considered managerial employees if they meet all of the following conditions, namely: (1) Their primary duty consists of the management of the establishment in which they are employed or of a department or sub-division thereof; (2) They customarily and regularly direct the work of two or more

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employees therein; (3) They have the authority to hire or fire other employees of lower rank; or their suggestions and recommendations as to the hiring and firing and as to the promotion or any other change of status of other employees are given particular weight. 24 TSN, Vol. II, July 11, 1985, 74-75. 25 Rollo, 108-112. 26 Annex I, Petition; Rollo, 45. 27 Rollo, 16-19. 28 Exh. E; Formal Offer of Exhibits for Complainant, 42. 29 Exhs. F, G and H; Ibid., 43-45. 30 Exh. I; Ibid., 46. 31 Exh. J; Ibid., 47. 32 Exh. D; Ibid., 41. 33 Exh. BL; Ibid., 167. 34 Exhs. BH, BI and BJ; Ibid., 153-159. 35 Exh. BK, 160. 36 Original Record, Vol. I, 276. 37 Exhs. AM, AO, AQ, AS, AU, AW, AY; Formal offer of Exhibits for the complainant, 110128. 38 Sec. 285, Labor Code, provides that employment may be terminated by the employee without just cause by serving a written notice on the employer at least one (1) month in advance. An employee may also put an end to the relationship without serving notice on the employer for any of the following just causes: serious insult by the employer or his representatives on the honor and person of the employee, inhuman and unbearable treatment accorded the employee by the employer or his representative, commission of a crime or offense by the employer or his representative against the person of the employee or any of the immediate members of his family, and other causes similar to the foregoing. 39 Rollo, 27-29. 40 Ibid., 111-115. 41 Exh. BO; Formal Offer of Exhibits for the Complainant, 175. 42 Tan, Jr. vs. NLRC, et al., G.R. No. 85919, March 23, 1990, 183 SCRA 651; Kwikway Engineering Works vs. NLRC, et al., G.R. No. 85014, March 22, 1991, 195 SCRA 526; Ranara vs. NLRC, et al., G.R. No. 100969, August 14, 1992, 212 SCRA 631.

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43 Rollo, 146-147; See also Hua Bee Shirt Factory vs. NLRC, et al., G.R. No. 80389, June 18, 1990, 186 SCRA 586; Cathedral School of Technology, et al., vs. NLRC, et al., G.R. No. 101438, October 13, 1992, 214 SCRA 551. 44 Escareal vs. NLRC, et al., G.R. No. 99357, October 2, 1992, 213 SCRA 472. 45 Balasbas vs. NLRC, et al., G.R. No. 85286, August 24, 1992, 212 SCRA 803. 46 Radio Communications of the Philippines, Inc., vs. NLRC, et al., G.R. Nos. 101181-84, June 22, 1992, 210 SCRA 222; China City Restaurant vs. NLRC, et al., G.R. No. 97196, January 22, 1993, 218 SCRA 443. 47 GT Printers, et al., vs. NLRC, et al., G.R. No. 100749, April 24, 1992, 208 SCRA 321. 48 Sunday Machine Workers, Inc. vs. NLRC, et al., G.R. No. 95692, March 16, 1992, 207 SCRA 271. 49 Rollo, 147-148. 50 Guita vs. Court of Appeals, et al., G.R. No. 60409, November 11, 1985, 139 SCRA 576. 51 Art. 2233, Civil Code. 52 Primero vs. Intermediate Appellate Court, et al., G.R. No. 72644, December 14, 1987, 156 SCRA 435. 53 Spartan Security and Detective Agency, Inc. vs. NLRC, et al., G.R. No. 90693, September 3, 1992, 213 SCRA 528. 54 Rollo, 148. 55 Canon 19, Code of Professional Responsibility. 56 Agpalo, Legal Ethics, 1989 ed., 66. 57 See Art. 221, Labor Code. 58 Maranaw Resorts Corporation vs. Court of Appeals, et al., G.R. No. 103215, November 6, 1992, 215 SCRA 501; JAM Transportation Co., Inc. vs. Flores, et al., G.R. No. 82829, March 19, 1993, 218 SCRA 114.

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Republic of the Philippines SUPREME COURT Manila EN BANC DECISION November 29, 1969 G.R. No. L-29543 GLORIA PAJARES, petitioner-appellant, vs. JUDGE ESTRELLA ABAD SANTOS, MUNICIPAL COURT OF MANILA and UDHARAM BAZAR CO., respondents-appellees. Moises C. Nicomedes for petitioner-appellant. Tomas Lopez Valencia for respondents-appellees. Teehankee, J.: We dismiss as frivolous petitioner-appellants appeal from the lower Courts Order of dismissal of her petition for a writ of certiorariwith prayer for preliminary injunction against respondent judges order denying her motion for a bill of particulars as the defendant in a simple collection case. The origin of the case is narrated in the Court of Appeals Resolution dated August 16, 1968 certifying the appeal to this Court as involving purely questions of law: This is an appeal interposed by petitioner Gloria Pajares from the order dated July 21, 1962 issued by the Court of First Instance of Manila, dismissing her petition for certiorari with preliminary injunction against respondent Judge Estrella Abad Santos of the Municipal Court of Manila and respondent Udharam Bazar & Co. There is no dispute that on April 25, 1962, the Udharam Bazar & Co. sued Gloria Pajares before the Municipal Court of Manila for recovery of a certain sum of money. The lawsuit was docketed in the inferior court as Civil Case No. 97309 and was eventually assigned to the sala of the respondent Judge Abad Santos. In its complaint the Udharam Bazar & Co. averred, among others, as follows: 2. That defendant in 1961, ordered from the plaintiff quantities of ready made goods and delivered to her in good condition and same were already sold, but did not make the full payment up to the present time; 3. That defendant is still indebted to the plaintiff in the sum of P354.85, representing the balance of her account as the value of the said goods, which is already overdue and payable. Instead of answering the complaint against her, Gloria Pajares, however, moved for a bill of particulars praying the inferior court to require the Udharam Bazar & Co. to itemize the kinds of goods which she supposedly purchased from the said company, the respective dates they were taken and by whom they were received as well as their purchase prices, alleging that without this bill she would not be able to meet the issues raised in the complaint.

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After due hearing, the inferior court denied the motion of Gloria Pajares for a bill of particulars. Her motion for reconsideration having been denied too by the said court, she then brought the incident on certiorari to the Court of First Instance of Manila, alleging in support of her petition that in denying her motion for a bill of particulars, the respondent judge acted in grave abuse of discretion. But on July 19, 1962, herein respondent Udharam Bazar & Co. filed a motion to dismiss the petition for a writ of certiorari, as well as the petition for a writ of preliminary injunction, for the reasons: (1) that the allegations of the complaint filed by the said company in the inferior court, particularly paragraphs 2 and 3 thereof, are clear, specific and sufficiently appraise the defendant, now herein petitioner Gloria Pajares, of the nature of the cause of action against her so as to enable her to prepare for her defenses; and (2) that things asked for in the motion for a bill of particulars are evidentiary matters, which are beyond the pale of such bill. Convinced that the said motion of the company is well founded, the lower court accordingly dismissed the petition on April 21, 1962. Her subsequent motion for reconsideration having been similarly denied by the court below, Gloria Pajares undertook the present appeal to this Court, contending under her lone assignment of error to maintain her such appeal that the lower court erred in dismissing her petition for certiorari with preliminary injunction, in its order dated July 21, 1962, as amended by its order dated August 18, 1962. The only genuine issues involved in the case at bar are: (1) whether the allegations of the complaint sufficiently appraise Gloria Pajares of the nature of the cause of action against her; and (2) whether the items asked for by the said Gloria Pajares in her motion for a bill of particulars constitute evidentiary matters. To our mind these are purely legal questions. A perusal of the brief of the parties has shown that no genuine factual questions are at all involved in this appeal. It is plain and clear that no error of law, much less any grave abuse of discretion, was committed by respondent judge in denying appellants motion for a bill of particulars in the collection case instituted in the Municipal Court of Manila by private respondent-appellee for the recovery of her indebtedness of P354.85 representing the overdue balance of her account for ready-made goods ordered by and delivered to her in 1961. Appellees complaint precisely and concisely informed appellant of the ultimate or essential facts constituting the cause of action against her, in accordance with the requirements of the Rules of Court.1 It was therefore improper for appellant, through her counsel, to insist on her motion that appellee as plaintiff submit a bill of particulars, specifying therein in detail the goods represented by the alleged amount of P354.85, giving the dates and invoice numbers on which they were delivered to the defendant, the amount due on each such invoice and by whom they were received. These particulars sought all concerned evidentiary matters and do not come within the scope of Rule 12, section 1 of the Rules of Court which permits a party to move for a definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularly to enable him to prepare his responsive pleading or to prepare for trial. Since appellant admittedly was engaged in the business of buying and selling merchandise at her stall at the Sta. Mesa Market, Quezon City, and appellee was one of her creditors from whom she used to buy on credit ready made goods for resale, appellant had no need of the evidentiary particulars sought by her to enable her to prepare her answer to the complaint or to prepare for trial. These particulars were just as much within her knowledge as appellees. She could not logically pretend ignorance as to the same, for all she had to do was to check and verify her own records of her outstanding account with appellee and

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state in her answer whether from her records the outstanding balance of her indebtedness was in the sum of P354.85, as claimed by appellee, or in a lesser amount. The record shows, furthermore, that a month before appellee filed its collection case, it had written appellant a demand-letter for the payment of her outstanding account in the said sum of P354.85 within one week. Appellant, through her counsel, wrote appellee under date of March 23, 1962, acknowledging her said indebtedness but stating that Due to losses she has sustained in the operation of her stall, she would not be able to meet your request for payment of the full amount of P354.85 at once. I would therefore request you to be kind enough to allow her to continue paying you P10.00 every 15th and end of the month as heretofore. No error was therefore committed by the lower court in summarily dismissing appellants petition forcertiorari against respondent judges order denying her motion for a bill of particulars, as pretended by appellant in her lone assignment of error. Well may we apply to this appeal, the words of Mr. Justice J.B.L. Reyes in an analogous case,2 that the circumstances surrounding this litigation definitely prove that appeal is frivolous and a plain trick to delay payment and prolong litigation unnecessarily. Such attitude deserves condemnation, wasting as it does, the time that the courts could well devote to meritorious cases. Here, this simple collection case has needlessly clogged the court dockets for over seven years. Had appellant been but prudently advised by her counsel to confess judgment and ask from her creditor the reasonable time she needed to discharge her lawful indebtedness, the expenses of litigation that she has incurred by way of filing fees in the Court of First Instance, premiums for her appeal bond, appellate court docket fees, printing of her appellants brief, and attorneys fees would have been much more than sufficient to pay off her just debt to appellee. Yet, here she still remains saddled with the same debt, burdened by accumulated interests, after having spent uselessly much more than the amount in litigation in this worthless cause. As we recently said in another case,3 the cooperation of litigants and their attorneys is needed so that needless clogging of the court dockets with unmeritorious cases may be avoided. There must be more faithful adherence to Rule 7, section 5 of the Rules of Court which provides that the signature of an attorney constitutes a certificate by him that he has read the pleading and that to the best of his knowledge, information and belief, there is good ground to support it; and that it is not interposed for delay and expressly admonishes that for a willful violation of this rule an attorney may be subjected to disciplinary action. WHEREFORE, the order appealed from is affirmed, and petitioner-appellants counsel shall pay treble costs in all instances. This decision shall be noted in the personal record of the attorney for petitionerappellant in this Court for future reference. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Fernando and Barredo, JJ., concur. Footnotes 1 Rule 6, section 3, formerly Rule 6, section 1. 2 Uypuanco vs. Equitable Banking Corporation, 27 SCRA 1272 (April 30, 1969).

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3 J. P. Juan & Sons, Inc. vs. Lianga Industries, Inc., 28 SCRA 807 (July 28, 1969).

EN BANC

[A.C. No. 4500. April 30, 1999]

BAN

HUA U. FLORES, complainant, CHUA, respondent. DECISION

vs. ATTY.

ENRIQUE

S.

PER CURIAM:

In its Resolution No. XIII-98-288 in this Administrative Case, the Board of Governors of the Integrated Bar of the Philippines RESOLVED as follows:

to ADOPT and APPROVE the Report and Recommendation of the Investigating Commissioner in the above-entitled case, herein made part of this Resolution/Decision as Annex A, and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, respondent Atty. Enrique S. Chua is SUSPENDED from the practice of law for three (3) years.
We quote the 21-page report of the Investigating Commissioner, Atty. Jaime M. Vibar:

THE FACTS AND THE CASE Complainant Ban Hua U. Flores seeks the disbarment of respondent Atty. Enrique S. Chua, a practicing lawyer in the City of Bacolod (Complaint dated October 11, 1995) for various offenses amounting to malpractice, gross misconduct, violation of his lawyers oath, the Code of Professional Conduct and Responsibility, as well as the provisions of the laws of the Republic of the Philippines, to wit:
I.FRAUD AGAINST A DEFENSELESS WIDOW BY THE DEATHBED OF HER DECEASED SPOUSE THROUGH FALSIFICATION AND FORGERY OF PUBLIC DOCUMENT. II.FOISTING FALSEHOOD AND FABRICATED PUBLIC DOCUMENT TO MOLEST AND HARASS PARTIES CONCERNED AND DEPRIVED THEM OF THEIR PROPERTY RIGHTS TO THEIR PREJUDICE AND DETRIMENT. III.LIBEL, MISPRESENTATION AND UNLAWFUL ADVERTISEMENT THROUGH THE PREMATURE PUBLICATION OF PORTION OF A QUESTIONABLE DECISION WHICH IS PENDING APPEAL. IV.BRIBERY AND CORRUPTION AND BLACKMAIL OF THE JUDICIARY AMOUNTING TO MALPRACTICE. V.ILLEGAL TAPPING OF CONVERSATIONS IN VIOLATION OF REPUBLIC ACT NO. 4200.

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VI.COMMISSION OF PERJURY, FORUM SHOPPING, MISPRESENTATION, FILLING A FALSE SUIT AND MISLEADING THE CLERK OF COURT TO EVADE PAYMENT OF DOCKET FEES.

Respondent filed his comment on the complaint with a countercharge against complainant and counsel, dated January 24, 1996. Respondent denies the charges and alleges that:
1. Grounds I and II, referring to the forgery of the signature on a Deed of Sale notarized by respondent Chua, are presently the subject of an on-going litigation (Crim. Case No. 12036 or Annex A Complaint and SEC Case No. 3328 or Annex F or Sec Case No. 520 or Annex P, Complaint) whose termination or conclusion is far from over, thus it would be premature to impose now any sanction upon the respondent xxxx 2. Grounds III, III-A and III-B are presently litigated in the Libel Complaint docketed as BCI.S. No. 93-2801 filed by complainant against the respondent and her (Complainants) brother xxx and is still awaiting resolution. Said grounds are also intertwined with other pending cases. 3. Grounds IV, IV-A. IV-B and IV-C are absolutely baseless and false. 4. Other grounds mentioned are not valid and sufficient basis for respondents disbarment for the issues raised therein are still the subject of pending cases. Such grounds are flimsy and frivolous.

Respondent claims that the cases he is handling and subject of the complaint involve disputes between family members. As he represents the brother of complainant, the present administrative complaint has apparently been filed by complainant to vent her ire for failing to attain what she sought in the pending litigations against respondents client. In the trial of the case, complainant presented testimonial and documentary evidence, including decisions of courts and pleadings filed therein while respondent opted to submit the case for decision only on the basis of documents. He submitted resolutions, pleadings and orders issued in other pending cases adverted to in the complaint, to prove that the issues raised in the disbarment case are still the subject of pending actions, or that the complaint has no legal and factual basis. Let us examine the facts as established by the evidence adduced by the parties. GROUND I. On the charge that respondent Chua was guilty of falsification and criminal activities in connection with his office as lawyer and notary public. Complainant presented evidence on the notarization by respondent Chua of a Deed of Sale allegedly executed on December 5, 1989 (Exhibit E), or one (1) day before the death of Chua Beng, one of the owners of the property. In the transcript of stenographic notes taken in Criminal Case Nos. 12037 and 12036, a proceeding against respondent Chua for falsification and notarization of a falsified document, RTC-Bacolod City, Branch 53, it is revealed that during the wake of Chua Beng,

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Silvina Chua, the wife of the deceased, asked to sign a document by Yu Seng, her husbands helper or assistant, who represented to her that said document she signed was a deed of sale which conveyed a property of her husband located in Nandalagan, Bacolod City, containing 344 square meters and evidenced by Transfer Certificate of Title No. 151706. She also found out that her husbands signature was forged. The deed of sale purportedly transferred their property to Yu Seng and Benjamin Laudio. Silvina Chua gave testimony that her husband Chua Beng could not have signed the deed of sale as they were together all the time prior to his death and she did not see him sign any document (Exhibit G at pages 39, et seg.) The forgery of the signature of her husband was reported to authorities (Exhibit G at page 55) and a fingerprint expert in the person of Police Superintendent Rodolfo Castillo attested to such forgery (Exhibit F at page 48 et. seq.) The forgery and notarization of the document containing the said forged signature of Chua Beng became the basis of a criminal prosecution for falsification of notarial document against Atty. Chua, the above-mentioned Criminal Case Nos. 12037 and 12036. Respondent Chua has not rebutted evidence presented on his role in notarizing a deed of sale where the signatory did not appear before him as, in fact, the signature was a forgery. The Acknowledgment in the deed of sale states that Chua Beng appeared and signed the deed personally before respondent. In his defense, respondent claims that there is a criminal case still pending against him for his participation in the notarization and alleged falsification of the document so the administrative case cannot proceed until the decision is rendered in the criminal case. GROUND II. On the charge that respondent foisted falsehood and falsification to molest and harass parties concerned to their prejudice and detriment. The charge relates to the filing of a notice of lis pendens in connection with a case filed before the Securitie [sic] and Exchange Commission (SEC). It appears that a petition, dated April 6, 1988, was filed by the lawyers Ramon Encarnacion and Alberto de Joya in behalf of UBS Marketing Corporation and Johnny K.H. Uy. Complainant herein and other family members were the respondents. The action was for the turn over of Books of Accounts, Sums of Money and Damages with Writ of Preliminary Mandatory Injunction. Subsequently, or on April 26, 1995, a notice of lis pendens was sent to the Register of Deed of Bacolod City, informing of the filing of a SEC petition, docketed as Case No. 3328. The first page of the petition was altered by obliterating the entry pertaining to the nature of the suit appearing at the upper right hand portion of the caption of the case just below the case number. The complainant testified that the erasure was made to conceal the true nature of the suit and lack of basis of the notice so as to mislead the Register of Deeds into annotating the notice of lis pendens. The notice sent to the Register of

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Deeds, Exhibit J, Annex F, Disbarment Complaint, was signed for Ramon Encarnacion and Associates. It is further charged that the notice was unlawful and baseless as the owner (SK Realty, Inc.) of the properties subject thereof was not even a party to the SEC petition. The application for the annotation of the notice of lis pendens was denied by the Register of Deeds in a letter dated May 5, 1995, addressed to UBS Marketing Corp. and Johnny KH Uy c/o Atty. Enrique Chua on the ground that the ownership of the titles was never an issue in the case and the registered owner was not a party thereto. Respondent Chua, this time acting for the applicants, appealed the denial to the Land Registration Commission (LRC) en consulta. However, the LRC Administrator, in a Resolution dated September 21, 1995, denied the appeal, sustaining the ground stated by the Register of Deeds that the notice was not registrable as the registered owner of the affected properties was not a party to the SEC case. No contrary evidence was presented by respondent. GROUND III. On the third charge that respondent was guilty of libel, misrepresentation and unlawful conduct by causing the publication and advertisement of a portion of the SEC decision in a newspaper of general and wide circulation in the province, evidence is not disputed that indeed an advertisement/notice and news report came out in the Visayan Daily Star, in its issues of June 6, 1995 ad June 9, 1995 (Exhibits Q and R, Annexes L and M) respectively, relating to the decision of the hearing officer in the SEC Case No. 3328 holding complainant and other liable for P68 million. The decision as published included, among others, the cancellation of titles of SK Realty, Inc. and New Challenge Resources, Inc. In these publications, respondent was always in the forefront, claiming to be the lawyer of the winning parties and paying for the advertisement/notice of the SEC decision. (Annexes N and O). Complainant testified (TSN February 19, 1997 at page 54 et seq.) before this Commission and affirmed tat the decision of the hearing officer in SEC Case No. 3328 declared her and others in default and held liable for P68 million. Thereafter, Atty. Chua, who was not the counsel of petitioners in the proceedings, caused damage and embarrassment to the [sic] them when said respondent instigated and initiated the publication in a newspaper of general and wide circulation in the Visayas, the Visayan Daily Star issue of June 6, 1995, the issuance of the decision with the caption BUSINESSMEN ORDERED TO PAY P68 MILLION PESOS BY THE SECURITIES AND EXCHANGE COMMISSION. The publication reported that Atty. Chua was the counsel of the petitioners. Not content with the news report,

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respondent Chua himself caused and paid for the publication of a two (2) page notice/advertisement in the Visayan Daily Star in its issue of June 9, 1995, informing the public about the decision of the SEC finding the complainant and others liable for P68 million. Even non-parties, SK Realty, Inc. and New Challenge Resources were mentioned in the publication (Exhibit Q, Annex L, Complaint). The SEC decision adverted to in the publications had been appealed to the Commission en banc. A copy of the notice of appeal was sent by mail to the counsel of record on June 9, 1995. (Exhibit V, Annex P). While the SEC case was pending appeal, respondent Chua filed a case against SK Realty, complainant herein and others with the Regional Trial Court of Bacolod City, Case No. 95-9051 for Reconveyance of Property and Cancellation of Titles and/or Recovery of Ownership and Possession of Real Estate with Damages and Accounting. (Annex Q). In defense, respondent Chua submitted evidence to show that a complaint for libel filed by Ban Hua Flores against respondent, arising from the publication/advertisement of the decision in SEC No. 3328, was dismissed by the prosecutors office of Bacolod (Annex 1, Respondents Manifestation and Submission of Evidence dated February 15, 1997). He further alleged that while complainant filed an administrative complaint against the prosecutors, the said complaint was likewise dismissed for the acts complained of amounted merely to errors of judgment correctible by appeal or a petition for review and not by an administrative proceedings (Annex 3, Ibid). Respondent maintains that the complaint on the publication is, therefore, baseless. GROUND IV. On the charge that respondent was guilty of bribery, corruption and blackmail of the judiciary, as well as harassment of the prosecution arm through the filing of administrative and criminal cases against them, complainant presented evidence that respondent testified in Administrative Matter No. RTJ-92-863 and Administrative Matter No. RTJ No. 92-880, involving Judge Renato Abastillas and Judge Bethel Moscardon, respectively, whereat respondent Chua allegedly admitted having bribed and/or conspired to bribe then RTC Judge Abastillas in order to obtain a favorable ruling for his clients in Crim. Case Nos. 10009 and 10010. Failing to get a favorable action, respondent Chua squealed/fabricated Administrative Matter No. RTJ-92-863 against ex-Judge Abastillas. Complainant further charges respondent of having conspired to bribe Judge Moscardon, which illegal act he admitted in A.M. RTJ-92-880. Complainant also makes the sweeping accusation that respondent Chua has the propensity to either bribe or sue the judges and prosecutors. He is charged of having harassed Provincial Prosecutor Bartolome Facual.

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Respondent denies the accusation but admits that he has already been proceeded against and, in fact sternly warned for his misconduct in giving Judge Abastillas P20,000.00 for a case he was handling and for which acts he has already expressed rancor (A.M. No. RTJ-92-863). He emphasizes that the charges he acted irresponsibly by indiscriminately suing of harassing judges and others, while serious, are false and untrue. His actions, in fact, resulted in the dismissal of judges. Evidence adduced indeed prove that respondent Chua was previously found guilty for misconduct as a lawyer in Administrative Matter No. RTJ-92-863/Administrative Case No. 3815, and where Judge Renato Abastillas was ordered dismissed (Annex C, Complaint for Disbarment). Respondent was found to have bribed Judge Abastillas and sternly warned that a repetition of similar act or acts or violation committed by him in the future will be dealt with more severely. In Administrative Matter RTJ-92-880 (In re: Judge Bethel Moscardon), the Honorable Supreme Court directed the Bar Confidant to investigate Atty. Chuas conduct in negotiating with a judge for an increase in rent for his client and further noted that: Thus is not the first time that Atty. Chua was involved in a similar incident. In A.C. No. 3815 Atty. Chua admitted giving P20,000.00 bribe to another judge who was ordered dismissed. Atty. Chua was spared from prosecution but he was sternly warned that a repetition of a similar acts or acts or violation committed by him in the future would be dealt with more severely. The Honorable Supreme Court furnished the Department of Justice with a copy of the decision in A.M. RTJ-92-880 for investigation and possible criminal prosecution of persons concerned including respondent herein. A copy of said decision was also endorsed to the Bar Confidant for possible investigation and disciplinary action against respondent. Complainant further alleges that there is a pattern of conduct on the part of respondent that tends towards the frustration of justice. While not specifically alleged in the complaint, evidence was adduced that respondent resorted to dilatory tactics in the handling of his cases. The attempts to delay and impeded the natural course of justice has not remained unnoticed. In a Comment of the Office of the Solicitor General (Exhibit Z) filed in CA-G.R. No. 41329, a petition to question an order of the trial court which denied the accused petitioners Motion to Suspend Further Proceedings in a criminal case for Estafa filed in 1988, the Solicitor General revealed that the petitioner therein, who was assisted by Atty. Chua, filed (6) Motions to Disqualify Private Prosecutor/law firm, three (3) Motion for Reinvestigation, five (5) Motions to Quash/Dismiss/Suspend Proceedings, four (4) Motions to Recall Warrant of Arrest and several motions to inhibit the judges. These motions were all denied or dismissed. Aside from the motions, the accused succeeded in seeking the postponement of the arraignment twenty three (23)

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times. The filling of the petition in the Court of Appeals was part of the ploy to further delay the proceedings. The dilatory tactics of respondent Chua has not escaped the attention of the Court of Appeals in a petition for certiorari docketed as CA-G.R. No. 38798 (Exhibit A). This petition was filed by respondent Chua to seek the annulment of an Order of the trial court dated August 21, 1995 setting the case for further proceedings on various dates and the annulment of the April 27, 1998 Order which directs Atty. Reyanaldo Depasucat, counsel for the plaintiff, to put in writing his oral manifestation that respondent Chuas client has not honored a subpoena ad testificandum and subpoena duces tecum previously issued by the court. Petitioner likewise seeks to compel the trial court to dismiss and/or suspend the proceedings in Civil Case No. 7675. The Court of Appeals dismissed the petition but noted that: The petition is utterly without merit and is obviously intended to delay proceedings in the aforesaid civil case. The court looks with disfavor at the clear dilatory tactics employed by herein petitioner in delaying the proceedings in Civil Case No. 7635 by bringing the instant petition before this court when private respondent is merely being required to put in writing his oral manifestation that Sy Seng Cho refused to honor the subpoena duces tecum requiring him to produce the original of the minutes of the reconciliation meeting of the feuding Uy family of which he is the custodian. Quite obvious is the fact that herein petitioner is merely employing this petition to delay the case and thus delay likewise the motion to cite him for contempt. We will not be a part to the unreasonable and unnecessary delay of the proceedings in Civil Case No. 7635 which has dragged on since 1993 to the detriment of the proper administration of justice and has prolonged the long standing feud of the Uy family. We see that there is no valid issues that could arise from the order of the public respondent since the order merely directs counsel for the plaintiff (private respondent) to put in writing his oral manifestation as to the reason for the dishonor by the petitioner of the subpoena xxxx. Respondent claims that he has not caused a delay in the proceedings much less in Case No. 95-9597 or in Criminal Case Nos. 12037 and 12036. V. On the charge that respondent admitted in the administrative cases as aforesaid that he and his client tapped private conversations and that said acts allegedly violated the Anti-Wiretapping Act. RA No. 4200, no evidence was adduced, independent of what has been stated in the administrative cases, had been adduced by the complainant.

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VI. Respondent is further charged of forum shopping for his role as counsel for certain parties in instituting various actions in different judicial and quasi-judicial fora. These case have the same or similar causes of action and were allegedly instituted to defeat the ends of justice. The decision of the Regional Trial Court on a motion to dismiss the case entitled Johnny K.H. Uy & UBS vs. Sk Realty, et al. Civil Case No. 95-9051, RTC-Bacolod City, Branch 43 gives a summary of the cases instituted by respondent Chua in behalf of his clients and finds that there was forum shopping committed, thus: xxx defendants alleged that there are three pending case involving practically the same parties, subject matter and issues. The first is SEC AC Case No. 520 entitled UBS Marketing Corporation and Johnny K.H. Uy vs. Ban Hua U Flores, et al. which is an appeal from the decision of the Hearing Officer of the Securities and Exchange Commission (SEC Case No. 3528) to the SEC En Banc. The dispositive portion of the appealed decision ordered, among others, the cancellation and annulment of all Certificates of Title in the name of herein defendant S.K. Realty Inc. The present case, likewise, asks for the annulment and cancellation of transfer certificates of title in the name of defendant S.K. Realty, Inc. which properties are the very same properties covered by SEC AC No. 520. The second case, entitled S.K. Realty, Inc. et al. vs. Securities and Exchange Commission, UBS Marketing Corporation and Johnny K.H. Uy is CA-G.R. No. 37451 pending in the Court of Appeals. The issue raised thereto refers to the nullity of the decision rendered in SEC Case No. 3328 which awarded the real properties of S.K. Realty, Inc., to the herein plaintiffs. These properties are the very same subject matter of the present action between the same parties. The third case, Civil Case No. 95-8978 entitled SK Realty, Inc. vs. Johnny K.H. Uy and UBS Marketing Corporation pending in Branch 41 of this Court, is an action for damages due to the Notices of Lis Pendens effected by the herein plaintiffs on the real properties of the defendant SK Realty, Inc.
xxx

Finally it is the contention of plaintiffs that there is no forum shopping in the present case as the defendants even vehemently declared that defendant SK Realty is not and has never been a party to SEC Case Nos. 3318, 520 and 3328, therefore, is a total stranger to the said case. Neither can there be a similarity of causes in the petition with the Court of Appeals and Civil Case No. 95-8975, for the causes of action in these cases are distinct and the reliefs prayed for are different from the present case. The denial of defendants motion to dismiss is what plaintiffs seek for.

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A judicious scrutiny of the evidence on record led this Court to hold that defendants' position, as a whole, is impressed with merit. A perusal of the plaintiffs complaint in the instant case and SEC Case No. 5328 xxx which is now the subject of appeal docketed as SEC Case No. 520, disclosed that the plaintiffs in both instances assert rights founded on substantially the same set of facts giving to the same basic issues breach, on the defendants part, of the Family Agreement reached during the Family Reconciliation Meeting held on February 10, 11 and 12, 1987; and the validity of nullity of the Deed of Sale involving several parcels of land, executed by and between the defendants, to the prejudice of the rights and interest of the plaintiffs. While the case at bar is for the recovery of ownership and possession of real properties and on the other hand SEC Case No. 3328 (now pending appeal) involves, inter alia, an action for accounting and damages, ostensibly the cause of action in one is different from the other but in the final analysis the same aforementioned basic issues confront these cases. One must bear in mind that a party cannot, by varying the form of action or adopting a different method of presenting this case, escape the operation of the principle that one and the same cause of action shall not be twice litigated. (Aldez Realty, Inc. vs. Court of Appeals, 212 SCRA 623) It is evident that the aforementioned cases hinges on the same essential facts and circumstances. Though the parties impleaded in one are not entirely the same to that (sic) in the other, nevertheless, the same parties represent the same interest in both actions. What we have before us is a clear case of forum shopping. Respondent is thus accused of perjury in falsely certifying in his Complaint, Civil Case No. 95-9051 (Annex Q), that there are no pending cases with the same subject matter and cause of action. Likewise, it is charged that respondent, in not specifying the value of the real properties involved in the suit, misled the clerk of court in accepting the complaint without the correct filing fee being paid. FINDING AND RECOMMENDATION I. On the first charge (GROUND I) that respondent was guilty of fraud against a person in his deathbed by falsification and forgery of a deed of sale, there is no evidence that he actively conspired with any party, or actively participated, in the forgery of the signature of one Chua Beng, a purported party to the contract. However, complainants evidence supports the conclusion that the signature of Chua Beng on a Deed of Sale (Exhibit E) was forged. While the wife, Silvina Chua, admits that she signed a document during the wake of her husband,

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she denies that her husband signed a Deed of Sale (ANNEX E) on 5 December 1989, or one (1) day before her husbands death, concerning a property covered by TCT No. T-151706. We find the testimony of the wife on the forgery, which is supported by a handwriting expert, as truthful and credible. We cannot ignore the circumstances of the execution of the said deed of sale which purports to have been signed by Chua Beng before a Notary Public one day before his death. We find the statement in the Acknowledgment appearing on the second page of the deed stating that Chua Beng personally appeared before the Notary Public is an untruthful statement that amounts to falsification. While we note that there is a criminal case of falsification pending against respondent (Criminal Case No. 12036), the lack of a decision from the trial court on the matter should not dissuade us from making a finding of liability in this administrative proceedings against respondent, as, in fact, we find respondent Chua failed to exercise the required diligence and fealty to his office by attending to the fact that the alleged party, Chua Beng, appeared before him and signed the deed when in truth and in fact said person did not so participate in the execution thereof. Emphatically, this finding does not in any way preempt the trial court on whatever decision it will issue on the criminal cases against respondent Chua. II. We shall jointly discuss the second ground (Ground II) together with Ground VI, VI-A, VI-B, and VI-C, as said charges emanate from, or is related to, the filing of a case with the Securities and Exchange Commission (SEC Case No. 3328), involving the Uy family members and another case with the civil court (Case No. 959051) involving their properties. Complainant charges respondent Chua, under the second ground of her complaint, of foisting falsehood and falsified a document to obtain a notice of lis pendens. We find documentary evidence to sustain the conclusion that indeed a Notice of Lis Pendens was filed in relation to SEC Case No. 3328 (Exhibit J, Annex F, Complaint), to which was attached a copy of the Petition with page one thereof containing an apparent erasure to omit the statement that it is For: Turn over of Books of Account, Sums of Money and Damages with Writ of Preliminary Mandatory Injunction. However, the Petition and the Notice of Lis Pendens have been prepared and executed by Ramon Encarnacion or his law firm. It does not appear from the documents, neither is there credible testimonial evidence, that respondent Chua directly participated in the unlawful acts complained of. The fact that respondent Chua was not the lawyer for the petitioners in the said SEC case is even admitted by complainant in her complaint (Complaint, paragraph 15, page 11). However, there is evidence that respondent Chua subsequently took action to appeal the denial by the Registry of Deeds of the application for the registration of the Notice of Lis Pendens to the Land Registration Commission, which eventually sustained the decision of the former, in a Resolution dated September 21, 1995,

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which denied the application on the ground that the real party in interest in the SEC case, the registered property owner SK Realty, Inc., was not impleaded in the suit. It also appears that respondent Chua filed a similar action in the civil court while the SEC case was pending adjudication, an action claimed to amount to forum shopping, intended to enable respondents clients to annotate a notice of lis pendens on the titles of the properties which were the same subject of an earlier SEC petition and application for a notice of lis pendens. Respondent Chua cannot deny the institution of the civil complaint (Annex Q, Complaint for Disbarment). The civil complaint, Civil Case No. 95-9051, shows that SK Realty, Inc., which was not a party in the SEC case, was impleaded this time as partly plaintiff. The causes of action and the reliefs sought therein seem to differ from those stated in the SEC case. In the civil case, the plaintiffs seek judgment specifically as follows: 1. Declaring null and void the Deed of Absolute Sale (Annex A) and annulling and cancelling Transfer Certificates of Titles Nos. T-141057; 141059; 141060; 141061; 141062; 141063; 141064, standing in the name of defendant SK and reverting their ownership and possession to either of the plaintiffs; 2) Directing the defendants to render full and accurate account of income and revenues on the eight (8) parcels of land; 3) finding defendants, jointly and severally, liable for a) attorneys fees x x x x b) Moral Damages x x x c) Exemplary Damages x x x d) Nominal Damages x x x x x and e) Moderate Damages x x x. The controversy over the sale of, or the titles to, the real properties of the Uy family was, to respondent Chuas thinking, cognizable by the civil court and on the face of the SEC petition filed by another lawyer, it is not indicated that a relief for the annulment of titles was being sought. As admitted by complainant herself, SK Realty, Inc. was not a party litigant in the SEC case, while she is now a party in the civil case and perhaps rightly so considering that an owner of property is an indispensable party. We cannot, however, ignore the resolution of the trial court in Civil Case No. 959051, dated November 9, 1995, which found that while ostensibly the causes of action in the civil action is different from the SEC Case, it held that in the final analysis the same x x x issues confront these cases. (Exhibit P at page 5) and it, therefore, concluded that respondents clients were guilty of forum shopping. Indeed, while it would appear that respondent Chua was not the counsel of the petitioners in SEC CASE No. 3328, his action to have a notice of lis pendens annotated at the Register of Deeds and his appeal to the LRC indicate his clear knowledge of the pending action. Clearly, while there is no sufficient basis to hold respondent liable for the charge of committing fraud in the filing of notice of lis pendens in relation to the SEC case, or for falsification of page one of the SEC petition as attached to the notice, respondent not being privy thereto, we are not

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prepared, however, to say that he is off the hook on the forum shopping charge. As we have earlier pointed out, the pleadings in the SEC case and in Civil Case No. 95-9051, may appear to have different causes of action and parties. But here is the catch. The SEC rendered a decision, dated May 3, 1995, which directed, among others, the cancellation and annulment of the transfer certificate of titles in the name of Soon Kee Commercial, Inc. if any, the certificate of titles in the name of SK Realty, Inc., if any, and the certificate of titles in the name of New Challenge Resources, if still there is, and all the properties formerly belonging to and in the name of UBS, presently totalling eight (8) lots TCT No. 141057, TCT No. 141058. TCT No. 141059, TCT No. 141060, TCT No. 141061, TCT No. 141062, TCT No. 141063, TCT No. 14106 and reverting them back to UBS Marketing Corporation. The Decision was published and even quoted in the Visayan daily Star, the issue of June 6, 1995, at respondent Chuas behest and expense. The decision was later appealed to the SEC Commission en banc. Respondent Chua was undoubtedly aware that while the SEC petition did not make any references to the real properties, the decision of the SEC gave reliefs in relation thereto. Therefore, when respondent filed a complaint, Civil Case No. 95-9051 (Annex Q, Disbarment complaint), on September 18, 1995, he was aware that the forum shopping prohibition could be violated and yet he submitted a Verification in his civil complaint, which was for reconveyance and cancellation of titles, that there is no prior action or proceedings involving the same issues, as herein raised, has been filed with the Court of Appeals or Supreme Court or any other tribunal or agency. He knew that the controversy on the properties was pending with the SEC, or was pending appeal, initiated by SK Realty and New Challenge Resources, Inc., with the Court of Appeals (CA-G.R. No. 37541) and SEC Case No. 520). The fact that the relief granted by the SEC gearing officer has not yet been set aside when respondent instituted the civil case and that he was aware of this fact should be enough reason for him to be made answerable for making false representation and forum shopping. It is also worth noting the fact that when the civil complaint was filed on September 18, 1995, the appeal in Consulta No. 2334, with respect to the Notice of Lis Pendens, was still unresolved. The decision of the LRC Administrator came only on September 21, 1995 (Annex K, Disbarment Case). Ignorance of a pending action on the properties subject of the SEC case cannot, therefore, be invoked by respondent. Respondent is answerable for misconduct under Canon 12.02.

III. On the third ground (Ground III, III-A and III-B) that respondent Chua caused the publication of new reports and paid advertisement/notice about the issuance of a decision by the Securities ad Exchange Commission, there is sufficient evidence to sustain complainant's charges.

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Undeniably, respondent Chua did not act as counsel for any of the parties in the SEC case, although it is safe to say that he represented some of the protagonist in other matters or cases. It is likewise undenied that the decision of the SEC hearing officer in Case No. 3328 was favorable to respondent Chuas clients. Respondent Chua, being a lawyer, should have known that the said decision was appealable. When he published the decision, he courted a possible sanction for contempt. Here, we cannot excuse him from such misconduct for it behooves him to even exert earnest efforts towards the settlement of family disputes and certainly he should be the last to exacerbate and complicate the controversial situation in which family members are embroiled. By his publication, respondents has violated the canons of professional ethics and professional responsibility, particularly Canon 19, 27, 3.01, 13.02, 1.03 and 1.04. IV. The charges alleged in Ground IV, IV-A IV-B and IV-C, which imputes to respondent acts of blackmail, harassment of the judiciary, arbitrary filing of administrative and criminal cases, and the charges alleged in Ground V, which attributes to represent the crime of wire tapping private conversations in violation of RA No. 4200 should be dismissed for lack of evidence and for being without basis. Besides, the acts complained of were the subject of Administrative Case No. 92-863 and A.M. No. RTJ 92-880. The decision in said administrative matters will have a bearing on the imposition of the penalty on respondent who has been warned of a stiffer penalty in case another misconduct is committed. V. The charge alleged in Ground VI-D which assails the allegation of respondent in the civil complaint, paragraph 4 of Annex Q, Complaint for Disbarment, as a brazen lie should be dismissed for lack of merit. A reading of paragraph 4 of the Complaint shows that when respondent made a statement that these facts are within the judicial notice of the Court being a settled litigation passed upon with finality by the Supreme Court, he made a reference to a case docketed as Securities and Exchange Commission vs. Court of Appeals and JBS vs. Court of Appeals reported in 201 SCRA 124. The term these facts should not, therefore, be interpreted by complainant as referring to the facts alleged in the complainant or that there was an intention to mislead the trial court by invoking judicial notice of a court decision. VI. The charge against respondent, stated under Ground VI-E of the complaint, of allegedly misleading the Clerk of Court into accepting the filing of a civil complaint without the proper filing fee being paid should be dismissed for lack of merit. The insufficiency in the payment of filing should be better be threshed in the civil case rather than before the Commission. The intent to mislead the Clerk of Court cannot be deduced from the mere fact of filing, although real properties are involved in the case. We think that the charge lacks factual and legal basis. Finally, the Commission does not wish to see lawyers deeply involving themselves in a fractious and divisive family feud, nay aggravating a controversy by reckless

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resort to unnecessary legal actions that only tend to frustrate the ends of justice. Instead of working for the amicable settlement or a friendly end to the dispute, lawyers file pleadings, perhaps with the clients cheers and approval, that only cause delay and impede the normal course of justice until the solution to the family imbroglio has become unreachable. Under Rule 1.04, it is mandated that lawyers shall encourage (their) clients to avoid, end or settle a controversy if it will admit of a fair settlement. It appears that in the family conflicts in which the lawyers involved herein are also active participants, no earnest efforts have been exerted by said lawyers towards that end. It is pathetic that years have been wasted without any end in sight. While a lawyer has the solemn duty to defend his clients rights and is expected to display the utmost zeal in defense of a clients cause, the conduct must never be at the expense of truth. (People v. Susano Blancas, 45 SCRA 405; Caballero vs. Deiparine , 60 SCRA 136; Muoz v. People, 53 SCRA 190) A lawyer may be disbarred or suspended for any misconduct when he is wanting in moral character, in honesty, probity and good demeanor or unworthy to continue as an officer of the court. (Nadayag vs. Grageda, 237 SCRA 202). In view of our observation and finding that the charges against respondent for forum shopping, committing falsehood, injurious, willful and unprofessional conduct of publishing, or causing the publication, in a newspaper of general circulation, of a pending case, causing undue delay in the court proceedings and for notarizing a document without the party being present, to be supported by evidence and meritorious, it is hereby recommended that respondent be suspended for a total of three (3) years for all his acts of misconduct. Respondent Chua has, by his unprofessional conduct, violated Rule 10.01, 12.02, 12.04 (foisting or commission of false hood, forum shopping and causing delay in court proceedings), Canon 19 (failing to resort to lawful means in representing client), 27, 3.01, 13.02 (causing undue publication of pending action). Having been previously found guilty of misconduct by the Hon. Supreme Court and warned of a more stern penalty should he commit another breach of the Canons of Professional Responsibility, respondents penalty would even seem light. While the counsel for the complainant is not recommended for any disciplinary action, he is, however, advised to take note of the Rules of Professional Conduct (Rule 1.01) which requires him to take the necessary steps aimed at encouraging a fair amicable settlement of the long-running family disputes, brought to light in this administrative proceedings, where he is actively and deeply involved.
We fully agree with the Investigating Commissioner in his findings of facts and conclusion of culpability, and even in his own lament that the recommended penalty would even seem light. Indeed, the misconduct of respondent, which this case has unfolded, is grave and serious that brings dishonor to the legal profession. Committed in succession and within a short time, the misconduct exposes a habit, attitude, and mindset not only to abuse ones legal

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knowledge or training, but also to deliberately defy or ignore known virtues and values which the legal profession demands from its members. In respondents notarization of a forged deed of sale, we see not just an act of generosity lavishly extended. We see his active role to perpetuate a fraud, a deceitful act to prejudice a party. He did not deny knowing the supposed vendor. As a matter of fact, he certified in the acknowledgment that he knew the vendor and knew him to be the same person who executed the document. When he then solemnly declared that such vendor appeared before him and acknowledged to him that the document was the vendors free act and deed despite the fact that the vendor did not do so as his signature was forged, respondent deliberately made false representations. It must be stressed that under Section 1 of Public Act No. 2103,[1] a notary public, like herein respondent, shall certify that the person acknowledging or document is known to him and that he is the same person who executed it, and acknowledged that the same is his free act and deed. The purpose of the requirement of personal appearance by the acknowledging party before the notary public is to enable the latter to verify the genuineness of the signature of the former.[2] It may be added, too, that only by such personal appearance may the notary public be able to ascertain from the acknowledging party himself that the instrument or document is his own free act and deed. Needless to state, the personal appearances and acknowledgement by the party to the document are the core of the ritual that effectively convert a private document into a public document, making it admissible in court without further proof of its authenticity.[3] The role then of the notary public in this ritual cannot be taken lightly. Where the notary public is a lawyer, a graver responsibility is placed upon his shoulder by reason of his solemn oath to obey the laws and to do no falsehood or consent tot he doing of any. The Code of Professional Responsibility also commands him not to engage in unlawful, dishonest, immoral or deceitful conduct and to uphold at all times the integrity and dignity of the legal profession. In Maligsa v. Cabanting, we emphatically pronounced:

As a lawyer commissioned as notary public, respondent is mandated to subscribe to the sacred duties appertaining to his office, such duties being dictated by public policy impressed with public interest. Faithful observance and utmost respect of the legal solemnity of the oath in an acknowledgment or jurat is sacrosanct. Simply put, such responsibility is incumbent upon and failing therein, he must now accept the commensurate consequences of his professional indiscretion. By his effrontery of notarizing a fictitious or spurious document, he has made a mockery of the legal solemnity of the oath in an Acknowledgment.[4]
In said case, respondent Cabanting notarized a forged deed of quitclaim. Considering also his previous misconduct for which he was suspended from the practice of law for six months, we ordered him disbarred from the practice of law. In the instant case, respondent Enrique S. Chua also notarized a forged deed of sale. it must be recalled that in Lee v. Abastillas andAbastillas v. Chua,[5] we held respondent Enrique Chua administratively liable for violation of Rule 1.01 of the Code of Professional Responsibility for allegedly bribing Judge Abastillas; and, accordingly, we STERNLY WARNED [him] that a repetition of similar act or acts or violation committed by him in the future [would] be dealt with more severely. Respondent Chua should, on this score alone, deserve a similar deal with Cabanting. But, considering the other items of his misconduct

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enumerated in the Report of the Investigating Commissioner, which in their totality brought dishonor to the legal profession, for more reasons must we visit upon respondent the most severe permissible penalty. What we said in Maligsa v. Cabanting bears repeating:

A lawyer shall at all times uphold the integrity and dignity of the legal profession. The bar should maintain a high standard of legal proficiency as well as honesty and fair dealing. A lawyer brings honor to the legal profession by faithfully performing his duties to society, to the bar, to the courts and to his clients. To this end a member of the legal fraternity should refrain from doing any act which might lessen in any degree the confidence and trust reposed by the public in the fidelity, honesty and integrity of the legal profession.
IN VIEW OF ALL THE FOREGOING, we find respondent ENRIQUE S. CHUA guilty of grave misconduct rendering him unworthy of continuing membership in the legal profession. He is thus ordered DISBARRED from the practice of law and his name stricken off of the Roll of Attorneys, effective immediately. Let copies of this Resolution be furnished the Office of the Bar Confidant, which shall forthwith record it in the personal filed of respondent; all the Courts of the Philippines; the Integrated Bar of the Philippines, which shall disseminate copies thereof to all its Chapters; and all administrative and quasi-judicial agencies of the republic of the Philippines. SO ORDERED. Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, and Santiago, JJ., concur

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SC Dismisses Disbarment Case Against Lazaro Law Office Lawyers Posted: September 11, 2012; By Bianca M. Padilla The Supreme Court has recently dismissed the complaint for disbarment filed by Jasper Juno F. Rodica (Rodica) against, among others, Atty. Manuel M. Lazaro, Atty. Edwin M. Espejo, Atty. Abel M. Almario, Atty. Michelle B. Lazaro, and Atty. Joseph C. Tan for gross and serious misconduct, deceit, malpractice, grossly immoral conduct, and violation of the Code of Professional Responsibility. Atty. Manuel Lazaro, Atty. Espejo, Atty. Almario, and Atty. Michelle Lazaro are all lawyers of the M.M. Lazaro and Associates Law Office and counsel of William Strong (Strong), Rodicas live-in partner. Respondents expedited Strongs release from detention in the Bureau of Immigration as well as his departure from the Philippines. Rodica filed the disbarment compliant against the aforesaid Lazaro Law Office lawyers, alleging she was deceived by them into withdrawing her RTC case for the recovery of her Boracay property as a condition sine qua non for Strongs departure from the country. In her complaint, she alleged that Atty. Tan, the lawyer of defendant Hillview Marketing Corporation in the RTC case, initiated the immigration case of Strong which led to his detention. Allegedly conspiring with Atty. Manuel, he informed her that unless she withdrew the RTC case against his client as part of their settlement package, he would do something bad against her and her family. In the 18-page resolution penned by Justice Mariano C. Del Castillo, the Courts First Division unanimously held that Rodica had failed to overcome the presumption of innocence based on the totality of evidence presented by her. In suspension and disbarment proceedings, lawyers enjoy the presumption of innocence, and the burden of proof rests upon the complainant to clearly prove her allegations by preponderant evidence. In the absence of preponderant evidence, the presumption of innocence of a lawyer continues and the complaint against him must be dismissed, it declared. The Court also added that given the chronology of events, there can be no relation between the deportation case of William Strong (Strong) and the withdrawal of the RTC case of Rodica. Undisputed records show that the RTC case was dismissed on March 29, 2011 and Rodica filed for a motion for reconsideration on April 18, 2011. On May 5, 2011, Strong was arrested and detained. After the Bureau of Immigration granted Strongs Motion to Voluntarily Leave the Country on May 25, 2011, he left the country on May 31, 2011. It was only on June 6, 2011 that Rodica filed her Manifestation to Withdraw Motion for Reconsideration. Thus, the Court noted that the RTC case was filed long before Strong was arrested and detained. The RTC case had already been dismissed long before Strong engaged the legal services of Lazaro Law Office. It further noted that Rodica was not a client of the Lazaro Law Office nor was Strong a party to

209 the RTC case. Despite Atty. Espejos participation in writing the Manifestation to Withdraw Motion for Reconsideration and putting Lazaro Law Office in the pleading, the Court held there is no evidence to show that Rodica retained the Lazaro Law Office to handle her case as Atty. Ibutnande was shown to be her counsel of record. In fact, she admitted in her sworn affidavit that the lawyers from Lazaro Law Office were engaged by Strong to handle his case with the Philippine immigration authorities. This Court is more inclined to believe that the Lazaro Law Office agreed to handle only the deportation case of Strong and such acceptance cannot be construed as to include the RTC case. In fact, all the billings of Lazaro Law Office pertained to the immigration case and not to the RTC case, ruled the Court. Based on preponderance of evidence submitted, the Court held that it is clear that Rodicas purpose in withdrawing the RTC case was to facilitate the sale of the Boracay property to Philip Apostol, who was not interested in buying the property unless it was cleared of all pending cases in order to protect himself as the buyer. In fact, it found that Rodica eventually executed a Deed of Absolute Sale in favor of Apostol over the Boracay property. Atty. Espejo, however, was warned to be more circumspect and prudent in his actuations after it was proven that upon Rodicas request, he drafted and affixed his signature to Rodicas Manifestation and Motion to Withdraw Motion for Reconsideration of the dismissal of the RTC case despite Rodica having retained Atty. Joan I. Tabanar-Ibutnande as counsel for her in the said case. The Court took into consideration that Atty. Espejo is newly admitted to the Bar and that he filed a Motion to Withdraw Appearance even before the filing of the disbarment complaint. In the said Motion, he apologized and expressed remorse for wrongly employing the name of the Lazaro Law Office. (AC No. 9259, Rodica v. Lazaro, et. al., August 23, 2012)

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Republic of the Philippines SUPREME COURT Manila EN BANC A.C. No. L-1117 March 20, 1944

THE DIRECTOR OF RELIGIOUS AFFAIRS, complainant, vs. ESTANISLAO R. BAYOT, respondent. Office of the Solicitor General De la Costa and Solicitor Feria for complainant. Francisco Claravall for respondent. OZAETA, J.: The respondent, who is an attorney-at-law, is charged with malpractice for having published an advertisement in the Sunday Tribune of June 13, 1943, which reads as follows: Marriage license promptly secured thru our assistance & the annoyance of delay or publicity avoided if desired, and marriage arranged to wishes of parties. Consultation on any matter free for the poor. Everything confidential. Legal assistance service 12 Escolta, Manila, Room, 105 Tel. 2-41-60. Appearing in his own behalf, respondent at first denied having published the said advertisement; but subsequently, thru his attorney, he admitted having caused its publication and prayed for "the indulgence and mercy" of the Court, promising "not to repeat such professional misconduct in the future and to abide himself to the strict ethical rules of the law profession." In further mitigation he alleged that the said advertisement was published only once in the Tribune and that he never had any case at law by reason thereof. Upon that plea the case was submitted to the Court for decision. It is undeniable that the advertisement in question was a flagrant violation by the respondent of the ethics of his profession, it being a brazen solicitation of business from the public. Section 25 of Rule 127 expressly provides among other things that "the practice of soliciting cases at law for the purpose of gain, either personally or thru paid agents or brokers, constitutes malpractice." It is highly unethical for an attorney to advertise his talents or skill as a merchant advertises his wares. Law is a profession and not a trade. The lawyer degrades himself and his profession who stoops to and adopts the practices of mercantilism by advertising his services or offering them to the public. As a member of the bar, he defiles the temple of justice with mercenary activities as the money-changers of old defiled the temple of Jehovah. "The most worth and effective advertisement possible, even for a young lawyer, . . . is the establishment of a wellmerited reputation for professional capacity and fidelity to trust. This cannot be forced but must be the outcome of character and conduct." (Canon 27, Code of Ethics.) In In re Tagorda, 53 Phil., the respondent attorney was suspended from the practice of law for the period of one month for advertising his services and soliciting work from the public by writing circular letters. That

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case, however, was more serious than this because there the solicitations were repeatedly made and were more elaborate and insistent. Considering his plea for leniency and his promise not to repeat the misconduct, the Court is of the opinion and so decided that the respondent should be, as he hereby is, reprimanded. Yulo, C.J., Moran, Horrilleno, Paras and Bocobo, JJ., concur.

[1]

Entitled An Act Providing for the Acknowledgment and Authentication of Instruments and Documents Within the Philippine Islands.
[2] [3] [4] [5]

Maligsa v. Cabanting, 272 SCRA 408, 412 [1997]. Id., 413. Id., 414. 234 SCRA 29, 50 [1994].

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Republic of the Philippines SUPREME COURT Manila EN BANC March 23, 1929 In re LUIS B. TAGORDA, Duran & Lim for respondent. Attorney-General Jaranilla and Provincial Fiscal Jose for the Government. MALCOLM, J.: The respondent, Luis B. Tagorda, a practising attorney and a member of the provincial board of Isabela, admits that previous to the last general elections he made use of a card written in Spanish and Ilocano, which, in translation, reads as follows: LUIS B. TAGORDA Attorney Notary Public CANDIDATE FOR THIRD MEMBER Province of Isabela (NOTE. As notary public, he can execute for you a deed of sale for the purchase of land as required by the cadastral office; can renew lost documents of your animals; can make your application and final requisites for your homestead; and can execute any kind of affidavit. As a lawyer, he can help you collect your loans although long overdue, as well as any complaint for or against you. Come or write to him in his town, Echague, Isabela. He offers free consultation, and is willing to help and serve the poor.) The respondent further admits that he is the author of a letter addressed to a lieutenant of barrio in his home municipality written in Ilocano, which letter, in translation, reads as follows: ECHAGUE, ISABELA, September 18, 1928 MY DEAR LIEUTENANT: I would like to inform you of the approaching date for our induction into office as member of the Provincial Board, that is on the 16th of next month. Before my induction into office I should be very glad to hear your suggestions or recommendations for the good of the province in general and for your barrio in particular. You can come to my house at any time here in Echague, to submit to me any kind of suggestion or recommendation as you may desire. I also inform you that despite my membership in the Board I will have my residence here in Echague. I will attend the session of the Board of Ilagan, but will come back home on the following day here in Echague to live and serve with you as a lawyer and notary public. Despite my election as member of the Provincial Board, I will exercise my legal profession as a lawyer and notary public. In case you cannot see me at home on any week day, I assure you that you can always find me there on every Sunday. I also inform you that I will receive any work regarding preparations of documents of contract of sales and affidavits to be sworn to before me as notary public even on Sundays.

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I would like you all to be informed of this matter for the reason that some people are in the belief that my residence as member of the Board will be in Ilagan and that I would then be disqualified to exercise my profession as lawyer and as notary public. Such is not the case and I would make it clear that I am free to exercise my profession as formerly and that I will have my residence here in Echague. I would request you kind favor to transmit this information to your barrio people in any of your meetings or social gatherings so that they may be informed of my desire to live and to serve with you in my capacity as lawyer and notary public. If the people in your locality have not as yet contracted the services of other lawyers in connection with the registration of their land titles, I would be willing to handle the work in court and would charge only three pesos for every registration. Yours respectfully, (Sgd.) LUIS TAGORDA Attorney Notary Public. The facts being conceded, it is next in order to write down the applicable legal provisions. Section 21 of the Code of Civil Procedure as originally conceived related to disbarments of members of the bar. In 1919 at the instigation of the Philippine Bar Association, said codal section was amended by Act No. 2828 by adding at the end thereof the following: "The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice." The statute as amended conforms in principle to the Canons of Professionals Ethics adopted by the American Bar Association in 1908 and by the Philippine Bar Association in 1917. Canons 27 and 28 of the Code of Ethics provide: 27. ADVERTISING, DIRECT OR INDIRECT. The most worthy and effective advertisement possible, even for a young lawyer, and especially with his brother lawyers, is the establishment of a well-merited reputation for professional capacity and fidelity to trust. This cannot be forced, but must be the outcome of character and conduct. The publication or circulation of ordinary simple business cards, being a matter of personal taste or local custom, and sometimes of convenience, is not per se improper. But solicitation of business by circulars or advertisements, or by personal communications or interview not warranted by personal relations, is unprofessional. It is equally unprofessional to procure business by indirection through touters of any kind, whether allied real estate firms or trust companies advertising to secure the drawing of deeds or wills or offering retainers in exchange for executorships or trusteeships to be influenced by the lawyer. Indirect advertisement for business by furnishing or inspiring newspaper comments concerning the manner of their conduct, the magnitude of the interest involved, the importance of the lawyer's position, and all other like self-laudation, defy the traditions and lower the tone of our high calling, and are intolerable. 28. STIRRING UP LITIGATION, DIRECTLY OR THROUGH AGENTS. It is unprofessional for a lawyer to volunteer advice to bring a lawsuit, except in rare cases where ties of blood, relationship or trust make it his duty to do so. Stirring up strife and litigation is not only unprofessional, but it is indictable at common law. It is disreputable to hunt up defects in titles or other causes of action and inform thereof in order to the employed to bring suit, or to breed litigation by seeking out those with claims for personal injuries or those having any other grounds of action in order to secure them as clients, or to employ agents or runners for like purposes, or to pay or reward directly or indirectly, those who bring or influence the bringing of such cases to his office, or to remunerate policemen, court or prison officials, physicians, hospital attaches or others who may succeed, under the guise of giving disinterested friendly advice, in influencing the criminal, the sick and the injured, the ignorant or others, to seek his professional services. A duty to the public and to the profession devolves upon

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every member of the bar having knowledge of such practices upon the part of any practitioner immediately to inform thereof to the end that the offender may be disbarred. Common barratry consisting of frequently stirring up suits and quarrels between individuals was a crime at the common law, and one of the penalties for this offense when committed by an attorney was disbarment. Statutes intended to reach the same evil have been provided in a number of jurisdictions usually at the instance of the bar itself, and have been upheld as constitutional. The reason behind statutes of this type is not difficult to discover. The law is a profession and not a business. The lawyer may not seek or obtain employment by himself or through others for to do so would be unprofessional. (State vs. Rossman [1909], 53 Wash., 1; 17 Ann. Cas., 625; Peoplevs. Mac Cabe [1893], 19 L. R. A., 231; 2 R. C. L., 1097.) It becomes our duty to condemn in no uncertain terms the ugly practice of solicitation of cases by lawyers. It is destructive of the honor of a great profession. It lowers the standards of that profession. It works against the confidence of the community in the integrity of the members of the bar. It results in needless litigation and in incenting to strife otherwise peacefully inclined citizens. The solicitation of employment by an attorney is a ground for disbarment or suspension. That should be distinctly understood. Giving application of the law and the Canons of Ethics to the admitted facts, the respondent stands convicted of having solicited cases in defiance of the law and those canons. Accordingly, the only remaining duty of the court is to fix upon the action which should here be taken. The provincial fiscal of Isabela, with whom joined the representative of the Attorney-General in the oral presentation of the case, suggests that the respondent be only reprimanded. We think that our action should go further than this if only to reflect our attitude toward cases of this character of which unfortunately the respondent's is only one. The commission of offenses of this nature would amply justify permanent elimination from the bar. But as mitigating, circumstances working in favor of the respondent there are, first, his intimation that he was unaware of the impropriety of his acts, second, his youth and inexperience at the bar, and, third, his promise not to commit a similar mistake in the future. A modest period of suspension would seem to fit the case of the erring attorney. But it should be distinctly understood that this result is reached in view of the considerations which have influenced the court to the relatively lenient in this particular instance and should, therefore, not be taken as indicating that future convictions of practice of this kind will not be dealt with by disbarment. In view of all the circumstances of this case, the judgment of the court is that the respondent Luis B. Tagorda be and is hereby suspended from the practice as an attorney-at-law for the period of one month from April 1, 1929, Street, Johns, Romualdez, and Villa-Real, JJ., concur. Johnson, J., reserves his vote.

Separate Opinions OSTRAND, J., dissenting: I dissent. Under the circumstances of the case a reprimand would have been sufficient punishment.

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FIRST DIVISION

[A.C. No. 5299. August 19, 2003]

ATTY. ISMAEL G. KHAN, JR., Assistant Court Administrator and Chief, Public Information Office,complainant, vs. ATTY. RIZALINO T. SIMBILLO, respondent.

[G.R. No. 157053. August 19, 2003]

ATTY. RIZALINO T. SIMBILLO, petitioner, vs. IBP COMMISSION ON BAR DISCIPLINE and ATTY. ISMAEL G. KHAN, JR., in his capacity as Assistant Court Administrator and Chief, Public Information Office,respondents. RESOLUTION
YNARES-SANTIAGO, J.:

This administrative complaint arose from a paid advertisement that appeared in the July 5, 2000 issue of the newspaper, Philippine Daily Inquirer, which reads: ANNULMENT OF MARRIAGE Specialist 532-4333/521-2667.[1] Ms. Ma. Theresa B. Espeleta, a staff member of the Public Information Office of the Supreme Court, called up the published telephone number and pretended to be an interested party. She spoke to Mrs. Simbillo, who claimed that her husband, Atty. Rizalino Simbillo, was an expert in handling annulment cases and can guarantee a court decree within four to six months, provided the case will not involve separation of property or custody of children. Mrs. Simbillo also said that her husband charges a fee of P48,000.00, half of which is payable at the time of filing of the case and the other half after a decision thereon has been rendered. Further research by the Office of the Court Administrator and the Public Information Office revealed that similar advertisements were published in the August 2 and 6, 2000 issues of the Manila Bulletin and August 5, 2000 issue of The Philippine Star.[2] On September 1, 2000, Atty. Ismael G. Khan, Jr., in his capacity as Assistant Court Administrator and Chief of the Public Information Office, filed an administrative complaint against Atty. Rizalino T. Simbillo for improper advertising and solicitation of his legal services, in violation of Rule 2.03 and Rule 3.01 of the Code of Professional Responsibility and Rule 138, Section 27 of the Rules of Court.[3] In his answer, respondent admitted the acts imputed to him, but argued that advertising and solicitation per se are not prohibited acts; that the time has come to change our views about the prohibition on advertising and solicitation; that the interest of the public is not served

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by the absolute prohibition on lawyer advertising; that the Court can lift the ban on lawyer advertising; and that the rationale behind the decades-old prohibition should be abandoned. Thus, he prayed that he be exonerated from all the charges against him and that the Court promulgate a ruling that advertisement of legal services offered by a lawyer is not contrary to law, public policy and public order as long as it is dignified.[4] The case was referred to the Integrated Bar of the Philippines for investigation, report and recommendation.[5] On June 29, 2002, the IBP Commission on Bar Discipline passed Resolution No. XV-2002-306,[6] finding respondent guilty of violation of Rules 2.03 and 3.01 of the Code of Professional Responsibility and Rule 138, Section 27 of the Rules of Court, and suspended him from the practice of law for one (1) year with the warning that a repetition of similar acts would be dealt with more severely. The IBP Resolution was noted by this Court on November 11, 2002.[7] In the meantime, respondent filed an Urgent Motion for Reconsideration,[8] which was denied by the IBP in Resolution No. XV-2002-606 dated October 19, 2002[9] Hence, the instant petition for certiorari, which was docketed as G.R. No. 157053 entitled, Atty. Rizalino T. Simbillo, Petitioner versus IBP Commission on Bar Discipline, Atty. Ismael G. Khan, Jr., Asst. Court Administrator and Chief, Public Information Office, Respondents. This petition was consolidated with A.C. No. 5299 per the Courts Resolution dated March 4, 2003. In a Resolution dated March 26, 2003, the parties were required to manifest whether or not they were willing to submit the case for resolution on the basis of the pleadings. [10] Complainant filed his Manifestation on April 25, 2003, stating that he is not submitting any additional pleading or evidence and is submitting the case for its early resolution on the basis of pleadings and records thereof. [11] Respondent, on the other hand, filed a Supplemental Memorandum on June 20, 2003. We agree with the IBPs Resolutions Nos. XV-2002-306 and XV-2002-606. Rules 2.03 and 3.01 of the Code of Professional Responsibility read:

Rule 2.03. A lawyer shall not do or permit to be done any act designed primarily to solicit legal business. Rule 3.01. A lawyer shall not use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services.
Rule 138, Section 27 of the Rules of Court states:

SEC. 27. Disbarment and suspension of attorneys by Supreme Court, grounds therefor. A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice or other gross misconduct in such office, grossly immoral conduct or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before the admission to practice, or for a willful disobedience appearing as attorney for a party without authority to do so.

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It has been repeatedly stressed that the practice of law is not a business. [12] It is a profession in which duty to public service, not money, is the primary consideration. Lawyering is not primarily meant to be a money-making venture, and law advocacy is not a capital that necessarily yields profits.[13] The gaining of a livelihood should be a secondary consideration.[14] The duty to public service and to the administration of justice should be the primary consideration of lawyers, who must subordinate their personal interests or what they owe to themselves.[15] The following elements distinguish the legal profession from a business:

1. 2. 3. 4.

A duty of public service, of which the emolument is a by-product, and in which one may attain the highest eminence without making much money; A relation as an officer of the court to the administration of justice involving thorough sincerity, integrity and reliability; A relation to clients in the highest degree of fiduciary; A relation to colleagues at the bar characterized by candor, fairness, and unwillingness to resort to current business methods of advertising and encroachment on their practice, or dealing directly with their clients.
[16]

There is no question that respondent committed the acts complained of. He himself admits that he caused the publication of the advertisements. While he professes repentance and begs for the Courts indulgence, his contrition rings hollow considering the fact that he advertised his legal services again after he pleaded for compassion and after claiming that he had no intention to violate the rules. Eight months after filing his answer, he again advertised his legal services in the August 14, 2001 issue of the Buy & Sell Free Ads Newspaper.[17] Ten months later, he caused the same advertisement to be published in the October 5, 2001 issue of Buy & Sell.[18] Such acts of respondent are a deliberate and contemptuous affront on the Courts authority. What adds to the gravity of respondents acts is that in advertising himself as a self-styled Annulment of Marriage Specialist, he wittingly or unwittingly erodes and undermines not only the stability but also the sanctity of an institution still considered sacrosanct despite the contemporary climate of permissiveness in our society. Indeed, in assuring prospective clients that an annulment may be obtained in four to six months from the time of the filing of the case,[19] he in fact encourages people, who might have otherwise been disinclined and would have refrained from dissolving their marriage bonds, to do so. Nonetheless, the solicitation of legal business is not altogether proscribed. However, for solicitation to be proper, it must be compatible with the dignity of the legal profession. If it is made in a modest and decorous manner, it would bring no injury to the lawyer and to the bar.[20] Thus, the use of simple signs stating the name or names of the lawyers, the office and residence address and fields of practice, as well as advertisement in legal periodicals bearing the same brief data, are permissible. Even the use of calling cards is now acceptable.[21] Publication in reputable law lists, in a manner consistent with the standards of conduct imposed by the canon, of brief biographical and informative data is likewise allowable. As explicitly stated in Ulep v. Legal Clinic, Inc.:[22]

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Such data must not be misleading and may include only a statement of the lawyers name and the names of his professional associates; addresses, telephone numbers, cable addresses; branches of law practiced; date and place of birth and admission to the bar; schools attended with dates of graduation, degrees and other educational distinctions; public or quasi-public offices; posts of honor; legal authorships; legal teaching positions; membership and offices in bar associations and committees thereof, in legal and scientific societies and legal fraternities; the fact of listings in other reputable law lists; the names and addresses of references; and, with their written consent, the names of clients regularly represented. The law list must be a reputable law list published primarily for that purpose; it cannot be a mere supplemental feature of a paper, magazine, trade journal or periodical which is published principally for other purposes. For that reason, a lawyer may not properly publish his brief biographical and informative data in a daily paper, magazine, trade journal or society program. Nor may a lawyer permit his name to be published in a law list the conduct, management, or contents of which are calculated or likely to deceive or injure the public or the bar, or to lower dignity or standing of the profession. The use of an ordinary simple professional card is also permitted. The card may contain only a statement of his name, the name of the law firm which he is connected with, address, telephone number and special branch of law practiced. The publication of a simple announcement of the opening of a law firm or of changes in the partnership, associates, firm name or office address, being for the convenience of the profession, is not objectionable. He may likewise have his name listed in a telephone directory but not under a designation of special branch of law. (emphasis and italics supplied)
WHEREFORE, in view of the foregoing, respondent RIZALINO T. SIMBILLO is found GUILTY of violation of Rules 2.03 and 3.01 of the Code of Professional Responsibility and Rule 138, Section 27 of the Rules of Court. He is SUSPENDED from the practice of law for ONE (1) YEAR effective upon receipt of this Resolution. He is likewise STERNLY WARNED that a repetition of the same or similar offense will be dealt with more severely. Let copies of this Resolution be entered in his record as attorney and be furnished the Integrated Bar of the Philippines and all courts in the country for their information and guidance. SO ORDERED. Vitug, (Acting Chairman),Carpio, and Azcuna, JJ., concur. Davide, Jr., C.J., (Chairman ), abroad, on official business.

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Republic of the Philippines Supreme Court Manila

SECOND DIVISION FIDELA BENGCO AND TERESITA A.C. No. 6368 BENGCO, Complainants, Present: CARPIO, J., Chairperson, BRION, PEREZ, SERENO, and REYES, JJ. Promulgated: ATTY. PABLO S. BERNARDO, Respondent. June 13, 2012

-versus-

x-----------------------------------------------------------------------------------------x DECISION REYES, J.: This is a complaint[1] for disbarment filed by complainants Fidela G. Bengco (Fidela) and Teresita N. Bengco (Teresita) against respondent Atty. Pablo Bernardo (Atty. Bernardo) for deceit, malpractice, conduct unbecoming a member of the Bar and violation of his duties and oath as a lawyer. The acts of the respondent which gave rise to the instant complaint are as follows:
That sometime on or about the period from April 15, 1997 to July 22, 1997, Atty. Pablo Bernardo with the help and in connivance and collusion with a certain Andres Magat [wilfully] and illegally committed fraudulent act with intent to defraud herein complainants Fidela G. Bengco and Teresita N. Bengco by using false pretenses, deceitful words to the effect that he would expedite the titling of the land belonging to the Miranda family of Tagaytay City who are the acquaintance of complainants herein and they convinced herein complainant[s] that if they will finance and deliver to him the

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amount of [P]495,000.00 as advance money he would expedite the titling of the subject land and further by means of other similar deceit like misrepresenting himself as lawyer of William Gatchalian, the prospective buyer of the subject land, who is the owner of Plastic City at Canomay Street, Valenzuela, Metro Manila and he is the one handling William Gatchalians business transaction and that he has contracts at NAMREA, DENR, CENRO and REGISTER OF DEEDS which representation he well knew were false, fraudulent and were only made to induce the complainant[s] to give and deliver the said amount ([P]495,000.00) and once in possession of said amount, far from complying with his obligation to expedite and cause the titling of the subject land, [wilfully], unlawfully and illegally misappropriated, misapplied and converted the said amount to his personal use and benefit and despite demand upon him to return the said amount, he failed and refused to do so, which acts constitute deceit, malpractice, conduct unbecoming a member of the Bar and Violation of Duties and Oath as a lawyer.[2]

In support of their complaint, the complainants attached thereto Resolutions dated December 7, 1998[3] and June 22, 1999[4]of the Third Municipal Circuit Trial Court (MCTC) of Sto. Tomas and Minalin, Sto. Tomas, Pampanga and the Office of the Provincial Prosecutor of San Fernando, Pampanga, respectively, finding probable cause for the filing of the criminal information[5]against both Atty. Bernardo and Andres Magat (Magat) before the Regional Trial Court (RTC) of San Fernando, Pampanga, Branch 48, charging them with the crime of Estafa punishable under Article 315, par. 2(a) of the Revised Penal Code. The respondent was required to file his Comment.[6] On September 24, 2004, the respondent filed an undated Comment,[7]wherein he denied the allegations against him and averred the following:
2. He had not deceived both complainants between the period from April 15, 1997 to July 22, 1997 for purposes of getting from them the amount of [P]495,000.00. It was Andy Magat whom they contacted and who in turn sought the legal services of the respondent. It was Andy Magat who received the said money from them. 3. There was no connivance made and entered into by Andy Magat and respondent. The arrangement for titling of the land was made by Teresita N. Bengco and Andy Magat with no participation of respondent. 4. The acceptance of the respondent to render his legal service is legal and allowed in law practice.[8]

The case was referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.

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On February 16, 2005, the IBP ordered the respondent to submit a verified comment pursuant to Rule 139-B, Section 6 of the Rules of Court as it appeared that the respondents undated comment filed with the Court was not verified.[9] On March 15, 2005, respondent through counsel requested for an additional fifteen (15) days from March 17, 2005, or until April 1, 2005, within which to comply due to his medical confinement.[10] Thereafter, on April 4, 2005, the respondent filed a second motion[11] for extension praying for another 20 days, or until April 22, 2005, alleging that he was still recovering from his illness. On August 3, 2005, the case was set for mandatory conference.[12] The respondent failed to appear; thus, the IBP considered the respondent in default for his failure to appear and for not filing an answer despite extensions granted. The case was then submitted for report and recommendation.[13] Based on the records of the case, Investigating Commissioner Rebecca VillanuevaMaala made the following findings:
[O]n or before the period from 15 April 1997 to 22 July 1997, respondent with the help and in connivance and collusion with a certain Andres Magat (Magat), by using false pretenses and deceitful words, [wilfully] and illegally committed fraudulent acts to the effect that respondent would expedite the titling of the land belonging to the Miranda family of Tagaytay City, who were the acquaintance of complainants. Respondent and Magat convinced complainants that if they finance and deliver to them the amount of [P]495,000.00 as advance money, they would expedite the titling of the subject land. Respondent represented himself to be the lawyer of William Gatchalian, the owner of Plastic Citylocated at Canomay Street, Valenzuela, Metro Manila, who was allegedly the buyer of the subject land once it has been titled. Respondent and Magat also represented that they have contacts at NAMREA, DENR, CENRO and the Register of Deeds which representation they knew to be false, fraudulent and were only made to induce complainants to give and deliver to them the amount of [P]495,000.00. Once in possession of the said amount, far from complying with their obligation to expedite and cause the titling of the subject land, respondent and Magat [wilfully], unlawfully and illegally misappropriated, misapplied and converted the said amount to their personal use and benefit and despite demand upon them to return the said amount, they failed and refused to do so. In view of the deceit committed by respondent and Magat, complainants filed a complaint for Estafa against the former before the Third Municipal Circuit Trial Court, of Sto. Tomas and Minalin, Sto. Tomas, Pampanga. In the preliminary investigation conducted by the said court, it finds sufficient grounds to hold respondent and Magat for trial for the crime of Estafa defined under par. 2(a) of Art. 315 of the Revised Penal

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Code, as amended. The case was transmitted to the Office of the Provincial Prosecutor of Pampanga for appropriate action as per Order dated 7 December 1998. The Assistant Provincial Prosecutor of the Office of the Provincial Prosecutor of Pampanga conducted a re-investigation of the case. During the re-investigation thereof, Magat was willing to reimburse to complainants the amount of [P]200,000.00 because according to him the amount of [P]295,000.00 should be reimbursed by respondent considering that the said amount was turned over to respondent for expenses incurred in the documentation prior to the titling of the subject land. Both respondent and Magat requested for several extensions for time to pay back their obligations to the complainants. However, despite extensions of time granted to them, respondent and Magat failed to fulfil their promise to pay back their obligation. Hence, it was resolved that the offer of compromise was construed to be an implied admission of guilt. The Asst. Provincial Prosecutor believes that there was no reason to disturb the findings of the investigating judge and an Information for Estafa was filed against respondent and Magat on 8 July 1999 before the Regional Trial Court, San Fernando, Pampanga. The failure of the lawyer to answer the complaint for disbarment despite due notice on several occasions and appear on the scheduled hearings set, shows his flouting resistance to lawful orders of the court and illustrates his despiciency for his oath of office as a lawyer which deserves disciplinary sanction x x x. From the facts and evidence presented, it could not be denied that respondent committed a crime that import deceit and violation of his attorneys oath and the Code of Professional Responsibility under both of which he was bound to obey the laws of the land. The commission of unlawful acts, specially crimes involving moral turpitude, acts of dishonesty in violation of the attorneys oath, grossly immoral conduct and deceit are grounds for suspension or disbarment of lawyers (Rule 138, Section 27, RRC). The misconduct complained of took place in 1997 and complainants filed the case only on 16 April 2004. As provided for by the Rules of Procedure of the Commission of Bar Discipline, as amended, dated 24 March 2004, A complaint for disbarment, suspension or discipline of attorneys prescribes in two (2) years from the date of the professional misconduct (Section 1, Rule VIII).[14]

The Investigating Commissioner recommended that:

x x x [R]espondent ATTY. PABLO A. BERNARDO be SUSPENDED for a period of TWO YEARS from receipt hereof from the practice of his profession as a lawyer and as a member of the Bar. [15]

On February 1, 2007, the IBP Board of Governors issued Resolution No. XVII2007-065, 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

223 A; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, Atty. Pablo S. Bernardo is hereby ordered, the restitution of the amount of [P]200,000.00 within sixty (60) days from receipt of notice with Warning that if he does not return the amount with in sixty days from receipt of this Order then he will be meted the penalty of Suspension from the practice of law for one (1) year.[16]

On May 16, 2007, the respondent promptly filed a Motion for Reconsideration[17] of the aforesaid Resolution of the IBP. The respondent averred that: (1) the IBP resolution is not in accord with the rules considering that the complaint was filed more than two (2) years from the alleged misconduct and therefore, must have been dismissed outright; (2) he did not commit any misrepresentation in convincing Fidela to give him money to finance the titling of the land; (3) he was hired as a lawyer through Magat who transacted with Teresita as evidenced by a Memorandum of Agreement[18] signed by the latter; (4) he was denied due process when the Investigating Commissioner considered him as in default after having ignored the representative he sent during the hearing on August 3, 2005; and (5) he long restituted the amount of P225,000.00 not as an offer of compromise but based on his moral obligation as a lawyer due to Teresitas declaration that he had to stop acting as her legal counsel sometime in the third quarter of 1997. The respondent pointed out the admission made by Fidela in her direct testimony before the RTC that she received the amount, as evidenced by photocopies of receipts. In an Order[19] dated May 17, 2007 issued by the IBP, the complainant was required to comment within fifteen (15) days from receipt thereof. In her Comment,[20] Fidela explained that it took them quite some time in filing the administrative case because they took into consideration the possibility of an amicable settlement instead of a judicial proceeding since it would stain the respondents reputation as a lawyer; that the respondent went into hiding which prompted them to seek the assistance of CIDG agents from Camp Olivas in order to trace the respondents whereabouts; that the respondent was duly accorded the opportunity to be heard; and finally, that no restitution of the P200,000.00 plus corresponding interest has yet been made by the respondent. On June 21, 2008, Fidela filed a Manifestation[21] stating that the RTC rendered a decision in the criminal case for Estafa finding the accused, Atty. Bernardo and Magat guilty of conspiracy in the commission of Estafa under Article 315 par. 2(a) of the Revised Penal Code and both are sentenced to suffer six (6) years and one (1) day of Prision Mayor as minimum to twelve (12) years and one (1) day of Reclusion Temporal as maximum.[22]

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In a Letter[23] dated March 23, 2009, addressed to the IBP, Fidela sought the resolution of the present action as she was already 86 years of age. Later, an Ex-parte Motion to Resolve the Case[24] dated September 1, 2010 was filed by the complainants. In another Letter dated October 26, 2011, Fidela, being 88 years old, sought for Atty. Bernardos restitution of the amount ofP200,000.00 so she can use the money to buy her medicine and other needs. The Court adopts and agrees with the findings and conclusions of the IBP. It is first worth mentioning that the respondents defense of prescription is untenable. The Court has held that administrative cases against lawyers do not prescribe. The lapse of considerable time from the commission of the offending act to the institution of the administrative complaint will not erase the administrative culpability of a lawyer. Otherwise, members of the bar would only be emboldened to disregard the very oath they took as lawyers, prescinding from the fact that as long as no private complainant would immediately come forward, they stand a chance of being completely exonerated from whatever administrative liability they ought to answer for.[25] Further, consistent with his failure to file his answer after he himself pleaded for several extensions of time to file the same, the respondent failed to appear during the mandatory conference, as ordered by the IBP. As a lawyer, the respondent is considered as an officer of the court who is called upon to obey and respect court processes. Such acts of the respondent are a deliberate and contemptuous affront on the courts authority which can not be countenanced. It can not be overstressed that lawyers are instruments in the administration of justice. 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. In so doing, the peoples faith and confidence in the judicial system is ensured. Lawyers may be disciplined whether in their professional or in their private capacity for any conduct that is wanting in morality, honesty, probity and good demeanor.[26] Rules 2.03 and 3.01 of the Code of Professional Responsibility read:
Rule 2.03. A lawyer shall not do or permit to be done any act designed primarily to solicit legal business. Rule 3.01. A lawyer shall not use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services.

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There is no question that the respondent committed the acts complained of. He himself admitted in his answer that his legal services were hired by the complainants through Magat regarding the purported titling of land supposedly purchased. While he begs for the Courts indulgence, his contrition is shallow considering the fact that he used his position as a lawyer in order to deceive the complainants into believing that he can expedite the titling of the subject properties. He never denied that he did not benefit from the money given by the complainants in the amount of P495,000.00. The practice of law is not a business. It is a profession in which duty to public service, not money, is the primary consideration. Lawyering is not primarily meant to be a money-making venture, and law advocacy is not a capital that necessarily yields profits. The gaining of a livelihood should be a secondary consideration. The duty to public service and to the administration of justice should be the primary consideration of lawyers, who must subordinate their personal interests or what they owe to themselves.[27] It is likewise settled that a disbarment proceeding is separate and distinct from a criminal action filed against a lawyer despite having involved the same set of facts. Jurisprudence has it that a finding of guilt in the criminal case will not necessarily result in a finding of liability in the administrative case. Conversely, the respondents acquittal does not necessarily exculpate him administratively.[28] In Yu v. Palaa,[29] the Court held that:
Respondent, being a member of the bar, should note that administrative cases against lawyers belong to a class of their own. They are distinct from and they may proceed independently of criminal cases. A criminal prosecution will not constitute a prejudicial question even if the same facts and circumstances are attendant in the administrative proceedings. Besides, it is not sound judicial policy to await the final resolution of a criminal case before a complaint against a lawyer may be acted upon; otherwise, this Court will be rendered helpless to apply the rules on admission to, and continuing membership in, the legal profession during the whole period that the criminal case is pending final disposition, when the objectives of the two proceedings are vastly disparate. Disciplinary proceedings involve no private interest and afford no redress for private grievance. They are undertaken and prosecuted solely for the public welfare and for preserving courts of justice from the official ministration of persons unfit to practice law. The attorney is called to answer to the court for his conduct as an officer of the court.[30] (Citations omitted)

As the records reveal, the RTC eventually convicted the respondent for the crime of Estafa for which he was meted the penalty of sentenced to suffer six (6) years and one (1) day of Prision Mayor as minimum to twelve (12) years and one (1) day of Reclusion Temporal as maximum. Such criminal conviction clearly undermines the respondents moral fitness to be a member of the Bar. Rule 138, Section 27 provides that:

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SEC. 27. Disbarment and suspension of attorneys by Supreme Court, grounds therefor. A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice or other gross misconduct in such office, grossly immoral conduct or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before the admission to practice, or for a wilful disobedience appearing as attorney for a party without authority to do so.

In view of the foregoing, this Court has no option but to accord him the punishment commensurate to all his acts and to accord the complainants, especially the 88-year old Fidela, with the justice they utmost deserve. WHEREFORE, in view of the foregoing, respondent Atty. Pablo S. Bernardo is found guilty of violating the Code of Professional Responsibility. Accordingly, he is SUSPENDED from the practice of law for ONE (1) YEAR effective upon notice hereof. Further, the Court ORDERS Atty. Pablo S. Bernardo (1) to RETURN the amount of P200,000.00 to Fidela Bengco and Teresita Bengco within TEN (10) DAYS from receipt of this Decision and (2) to SUBMIT his proof of compliance thereof to the Court, through the Office of the Bar Confidant within TEN (10) DAYS therefrom; with a STERN WARNING that failure to do so shall merit him the additional penalty of suspension from the practice of law for one (1) year. Let copies of this Decision be entered in his record as attorney and be furnished the Integrated Bar of the Philippines and all courts in the country for their information and guidance. SO ORDERED.

BIENVENIDO L. REYES Associate Justice

WE CONCUR:

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ANTONIO T. CARPIO Senior Associate Justice Chairperson, Second Division

ARTURO D. BRION Associate Justice

JOSE PORTUGAL PEREZ Associate Justice

MARIA LOURDES P. A. SERENO Associate Justice

[1] [2] [3] [4] [5] [6] [7] [8] [9] [10] [11] [12]

Rollo, pp. 1-3 Id. at 1-2. Id. at 4-7. Id. at 8-10. Id. at 11. Resolution dated June 2, 2004; id. at 13. Id. at 17-18. Id. at 17. IBP Folder, Vol. II, p. 1 Id. at 2. Id. at 3. Id. at 4.

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Republic of the Philippines SUPREME COURT Manila EN BANC

Bar Matter No. 553 June 17, 1993 MAURICIO C. ULEP, petitioner, vs. THE LEGAL CLINIC, INC., respondent. R E SO L U T I O N

REGALADO, J.: Petitioner prays this Court "to order the respondent to cease and desist from issuing advertisements similar to or of the same tenor as that of annexes "A" and "B" (of said petition) and to perpetually prohibit persons or entities from making advertisements pertaining to the exercise of the law profession other than those allowed by law." The advertisements complained of by herein petitioner are as follows: Annex A SECRET MARRIAGE? P560.00 for a valid marriage. Info on DIVORCE. ABSENCE. ANNULMENT. VISA. THE Please call: 521-0767 LEGAL 5217232, 5222041 CLINIC, INC. 8:30 am 6:00 pm 7Flr. Victoria Bldg., UN Ave., Mla. Annex B GUAM DIVORCE. DON PARKINSON an Attorney in Guam, is giving FREE BOOKS on Guam Divorce through The Legal Clinic beginning Monday to Friday during office hours. Guam divorce. Annulment of Marriage. Immigration Problems, Visa Ext. Quota/Non-quota Res. & Special Retiree's Visa. Declaration of Absence. Remarriage to Filipina Fiancees. Adoption. Investment in the Phil. US/Foreign Visa for Filipina Spouse/Children. Call Marivic.
THE 7F Victoria Bldg. 429 UN Ave., LEGAL Ermita, Manila nr. US Embassy CLINIC, INC. 1 Tel. 521-7232; 521-7251; 522-2041; 521-0767

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It is the submission of petitioner that the advertisements above reproduced are champterous, unethical, demeaning of the law profession, and destructive of the confidence of the community in the integrity of the members of the bar and that, as a member of the legal profession, he is ashamed and offended by the said advertisements, hence the reliefs sought in his petition as hereinbefore quoted. In its answer to the petition, respondent admits the fact of publication of said advertisement at its instance, but claims that it is not engaged in the practice of law but in the rendering of "legal support services" through paralegals with the use of modern computers and electronic machines. Respondent further argues that assuming that the services advertised are legal services, the act of advertising these services should be allowed supposedly in the light of the case of John R. Bates and Van O'Steen vs. State Bar of Arizona, 2 reportedly decided by the United States Supreme Court on June 7, 1977. Considering the critical implications on the legal profession of the issues raised herein, we required the (1) Integrated Bar of the Philippines (IBP), (2) Philippine Bar Association (PBA), (3) Philippine Lawyers' Association (PLA), (4) U.P. Womens Lawyers' Circle (WILOCI), (5) Women Lawyers Association of the Philippines (WLAP), and (6) Federacion International de Abogadas (FIDA) to submit their respective position papers on the controversy and, thereafter, their memoranda. 3 The said bar associations readily responded and extended their valuable services and cooperation of which this Court takes note with appreciation and gratitude. The main issues posed for resolution before the Court are whether or not the services offered by respondent, The Legal Clinic, Inc., as advertised by it constitutes practice of law and, in either case, whether the same can properly be the subject of the advertisements herein complained of. Before proceeding with an in-depth analysis of the merits of this case, we deem it proper and enlightening to present hereunder excerpts from the respective position papers adopted by the aforementioned bar associations and the memoranda submitted by them on the issues involved in this bar matter. 1. Integrated Bar of the Philippines: xxx xxx xxx Notwithstanding the subtle manner by which respondent endeavored to distinguish the two terms, i.e., "legal support services" vis-a-vis "legal services", common sense would readily dictate that the same are essentially without substantial distinction. For who could deny that document search, evidence gathering, assistance to layman in need of basic institutional services from government or non-government agencies like birth, marriage, property, or business registration, obtaining documents like clearance, passports, local or foreign visas, constitutes practice of law? xxx xxx xxx The Integrated Bar of the Philippines (IBP) does not wish to make issue with respondent's foreign citations. Suffice it to state that the IBP has made its position manifest, to wit, that it strongly opposes the view espoused by respondent (to the effect that today it is alright to advertise one's legal services). The IBP accordingly declares in no uncertain terms its opposition to respondent's act of establishing a "legal clinic" and of concomitantly advertising the same through newspaper publications.
The IBP would therefore invoke the administrative supervision of this Honorable Court to perpetually restrain respondent from undertaking highly unethical activities in the field of law practice as aforedescribed. 4

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xxx xxx xxx A. The use of the name "The Legal Clinic, Inc." gives the impression that respondent corporation is being operated by lawyers and that it renders legal services. While the respondent repeatedly denies that it offers legal services to the public, the advertisements in question give the impression that respondent is offering legal services. The Petition in fact simply assumes this to be so, as earlier mentioned, apparently because this (is) the effect that the advertisements have on the reading public. The impression created by the advertisements in question can be traced, first of all, to the very name being used by respondent "The Legal Clinic, Inc." Such a name, it is respectfully submitted connotes the rendering of legal services for legal problems, just like a medical clinic connotes medical services for medical problems. More importantly, the term "Legal Clinic" connotes lawyers, as the term medical clinic connotes doctors. Furthermore, the respondent's name, as published in the advertisements subject of the present case, appears with (the) scale(s) of justice, which all the more reinforces the impression that it is being operated by members of the bar and that it offers legal services. In addition, the advertisements in question appear with a picture and name of a person being represented as a lawyer from Guam, and this practically removes whatever doubt may still remain as to the nature of the service or services being offered. It thus becomes irrelevant whether respondent is merely offering "legal support services" as claimed by it, or whether it offers legal services as any lawyer actively engaged in law practice does. And it becomes unnecessary to make a distinction between "legal services" and "legal support services," as the respondent would have it. The advertisements in question leave no room for doubt in the minds of the reading public that legal services are being offered by lawyers, whether true or not. B. The advertisements in question are meant to induce the performance of acts contrary to law, morals, public order and public policy. It may be conceded that, as the respondent claims, the advertisements in question are only meant to inform the general public of the services being offered by it. Said advertisements, however, emphasize to Guam divorce, and any law student ought to know that under the Family Code, there is only one instance when a foreign divorce is recognized, and that is: Article 26. . . . Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine Law. It must not be forgotten, too, that the Family Code (defines) a marriage as follows: Article 1. Marriage is special contract of permanent union between a man and woman entered into accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relation during the marriage within the limits provided by this Code.

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By simply reading the questioned advertisements, it is obvious that the message being conveyed is that Filipinos can avoid the legal consequences of a marriage celebrated in accordance with our law, by simply going to Guam for a divorce. This is not only misleading, but encourages, or serves to induce, violation of Philippine law. At the very least, this can be considered "the dark side" of legal practice, where certain defects in Philippine laws are exploited for the sake of profit. At worst, this is outright malpractice. Rule 1.02. A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system. In addition, it may also be relevant to point out that advertisements such as that shown in Annex "A" of the Petition, which contains a cartoon of a motor vehicle with the words "Just Married" on its bumper and seems to address those planning a "secret marriage," if not suggesting a "secret marriage," makes light of the "special contract of permanent union," the inviolable social institution," which is how the Family Code describes marriage, obviously to emphasize its sanctity and inviolability. Worse, this particular advertisement appears to encourage marriages celebrated in secrecy, which is suggestive of immoral publication of applications for a marriage license. If the article "Rx for Legal Problems" is to be reviewed, it can readily be concluded that the above impressions one may gather from the advertisements in question are accurate. The Sharon Cuneta-Gabby Concepcion example alone confirms what the advertisements suggest. Here it can be seen that criminal acts are being encouraged or committed (a bigamous marriage in Hong Kong or Las Vegas) with impunity simply because the jurisdiction of Philippine courts does not extend to the place where the crime is committed. Even if it be assumed, arguendo, (that) the "legal support services" respondent offers do not constitute legal services as commonly understood, the advertisements in question give the impression that respondent corporation is being operated by lawyers and that it offers legal services, as earlier discussed. Thus, the only logical consequence is that, in the eyes of an ordinary newspaper reader, members of the bar themselves are encouraging or inducing the performance of acts which are contrary to law, morals, good customs and the public good, thereby destroying and demeaning the integrity of the Bar. xxx xxx xxx It is respectfully submitted that respondent should be enjoined from causing the publication of the advertisements in question, or any other advertisements similar thereto. It is also submitted that respondent should be prohibited from further performing or offering some of the services it presently offers, or, at the very least, from offering such services to the public in general. The IBP is aware of the fact that providing computerized legal research, electronic data gathering, storage and retrieval, standardized legal forms, investigators for gathering of evidence, and like services will greatly benefit the legal profession and should not be stifled but instead encouraged. However, when the conduct of such business by non-members of the Bar encroaches upon the practice of law, there can be no choice but to prohibit such business. Admittedly, many of the services involved in the case at bar can be better performed by specialists in other fields, such as computer experts, who by reason of their having devoted time and effort exclusively to such field cannot fulfill the exacting requirements for admission to the Bar. To prohibit them from "encroaching" upon the legal profession will deny the profession of the great benefits and advantages of modern technology. Indeed, a lawyer using a computer will be doing better than a lawyer using a typewriter, even if both are (equal) in skill.

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Both the Bench and the Bar, however, should be careful not to allow or tolerate the illegal practice of law in any form, not only for the protection of members of the Bar but also, and more importantly, for the protection of the public. Technological development in the profession may be encouraged without tolerating, but instead ensuring prevention of illegal practice. There might be nothing objectionable if respondent is allowed to perform all of its services, but only if such services are made available exclusively to members of the Bench and Bar. Respondent would then be offering technical assistance, not legal services. Alternatively, the more difficult task of carefully distinguishing between which service may be offered to the public in general and which should be made available exclusively to members of the Bar may be undertaken. This, however, may require further proceedings because of the factual considerations involved. It must be emphasized, however, that some of respondent's services ought to be prohibited outright, such as acts which tend to suggest or induce celebration abroad of marriages which are bigamous or otherwise illegal and void under Philippine law. While respondent may not be prohibited from simply disseminating information regarding such matters, it must be required to include, in the information given, a disclaimer that it is not authorized to practice law, that certain course of action may be illegal under Philippine law, that it is not authorized or capable of rendering a legal opinion, that a lawyer should be consulted before deciding on which course of action to take, and that it cannot recommend any particular lawyer without subjecting itself to possible sanctions for illegal practice of law. If respondent is allowed to advertise, advertising should be directed exclusively at members of the Bar, with a clear and unmistakable disclaimer that it is not authorized to practice law or perform legal services.
The benefits of being assisted by paralegals cannot be ignored. But nobody should be allowed to represent himself as a "paralegal" for profit, without such term being clearly defined by rule or regulation, and without any adequate and effective means of regulating his activities. Also, law practice in a corporate form may prove to be advantageous to the legal profession, but before allowance of such practice may be considered, the corporation's Article of Incorporation and Bylaws must conform to each and every provision of the Code of Professional Responsibility and the Rules of Court. 5

2. Philippine Bar Association: xxx xxx xxx. Respondent asserts that it "is not engaged in the practice of law but engaged in giving legal support services to lawyers and laymen, through experienced paralegals, with the use of modern computers and electronic machines" (pars. 2 and 3, Comment). This is absurd. Unquestionably, respondent's acts of holding out itself to the public under the trade name "The Legal Clinic, Inc.," and soliciting employment for its enumerated services fall within the realm of a practice which thus yields itself to the regulatory powers of the Supreme Court. For respondent to say that it is merely engaged in paralegal work is to stretch credulity. Respondent's own commercial advertisement which announces a certainAtty. Don Parkinson to be handling the fields of law belies its pretense. From all indications, respondent "The Legal Clinic, Inc." is offering and rendering legal services through its reserve of lawyers. It has been held that the practice of law is not limited to the conduct of cases in court, but includes drawing of deeds, incorporation, rendering opinions, and advising clients as to their legal right and then take them to an attorney and ask the latter to look after their case in court See Martin, Legal and Judicial Ethics, 1984 ed., p. 39).

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It is apt to recall that only natural persons can engage in the practice of law, and such limitation cannot be evaded by a corporation employing competent lawyers to practice for it. Obviously, this is the scheme or device by which respondent "The Legal Clinic, Inc." holds out itself to the public and solicits employment of its legal services. It is an odious vehicle for deception, especially so when the public cannot ventilate any grievance for malpractice against the business conduit. Precisely, the limitation of practice of law to persons who have been duly admitted as members of the Bar (Sec. 1, Rule 138, Revised Rules of Court) is to subject the members to the discipline of the Supreme Court. Although respondent uses its business name, the persons and the lawyers who act for it are subject to court discipline. The practice of law is not a profession open to all who wish to engage in it nor can it be assigned to another (See 5 Am. Jur. 270). It is a personal right limited to persons who have qualified themselves under the law. It follows that not only respondent but also all the persons who are acting for respondent are the persons engaged in unethical law practice. 6

3. Philippine Lawyers' Association: The Philippine Lawyers' Association's position, in answer to the issues stated herein, are wit: 1. The Legal Clinic is engaged in the practice of law; 2. Such practice is unauthorized; 3. The advertisements complained of are not only unethical, but also misleading and patently immoral; and 4. The Honorable Supreme Court has the power to supress and punish the Legal Clinic and its corporate officers for its unauthorized practice of law and for its unethical, misleading and immoral advertising. xxx xxx xxx Respondent posits that is it not engaged in the practice of law. It claims that it merely renders "legal support services" to answers, litigants and the general public as enunciated in the Primary Purpose Clause of its Article(s) of Incorporation. (See pages 2 to 5 of Respondent's Comment). But its advertised services, as enumerated above, clearly and convincingly show that it is indeed engaged in law practice, albeit outside of court. As advertised, it offers the general public its advisory services on Persons and Family Relations Law, particularly regarding foreign divorces, annulment of marriages, secret marriages, absence and adoption; Immigration Laws, particularly on visa related problems, immigration problems; the Investments Law of the Philippines and such other related laws. Its advertised services unmistakably require the application of the aforesaid law, the legal principles and procedures related thereto, the legal advices based thereon and which activities call for legal training, knowledge and experience.
Applying the test laid down by the Court in the aforecited Agrava Case, the activities of respondent fall squarely and are embraced in what lawyers and laymen equally term as "the practice of law." 7

4. U.P. Women Lawyers' Circle: In resolving, the issues before this Honorable Court, paramount consideration should be given to the protection of the general public from the danger of being exploited by unqualified persons or entities who may be engaged in the practice of law.

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At present, becoming a lawyer requires one to take a rigorous four-year course of study on top of a four-year bachelor of arts or sciences course and then to take and pass the bar examinations. Only then, is a lawyer qualified to practice law. While the use of a paralegal is sanctioned in many jurisdiction as an aid to the administration of justice, there are in those jurisdictions, courses of study and/or standards which would qualify these paralegals to deal with the general public as such. While it may now be the opportune time to establish these courses of study and/or standards, the fact remains that at present, these do not exist in the Philippines. In the meantime, this Honorable Court may decide to make measures to protect the general public from being exploited by those who may be dealing with the general public in the guise of being "paralegals" without being qualified to do so.
In the same manner, the general public should also be protected from the dangers which may be brought about by advertising of legal services. While it appears that lawyers are prohibited under the present Code of Professional Responsibility from advertising, it appears in the instant case that legal services are being advertised not by lawyers but by an entity staffed by "paralegals." Clearly, measures should be taken to protect the general public from falling prey to those who advertise legal services without being qualified to offer such services. 8

A perusal of the questioned advertisements of Respondent, however, seems to give the impression that information regarding validity of marriages, divorce, annulment of marriage, immigration, visa extensions, declaration of absence, adoption and foreign investment, which are in essence, legal matters , will be given to them if they avail of its services. The Respondent's name The Legal Clinic, Inc. does not help matters. It gives the impression again that Respondent will or can cure the legal problems brought to them. Assuming that Respondent is, as claimed, staffed purely by paralegals, it also gives the misleading impression that there are lawyers involved in The Legal Clinic, Inc., as there are doctors in any medical clinic, when only "paralegals" are involved in The Legal Clinic, Inc.
Respondent's allegations are further belied by the very admissions of its President and majority stockholder, Atty. Nogales, who gave an insight on the structure and main purpose of Respondent corporation in the aforementioned "Starweek" article." 9

5. Women Lawyer's Association of the Philippines: Annexes "A" and "B" of the petition are clearly advertisements to solicit cases for the purpose of gain which, as provided for under the above cited law, (are) illegal and against the Code of Professional Responsibility of lawyers in this country. Annex "A" of the petition is not only illegal in that it is an advertisement to solicit cases, but it is illegal in that in bold letters it announces that the Legal Clinic, Inc., could work out/cause the celebration of a secret marriage which is not only illegal but immoral in this country. While it is advertised that one has to go to said agency and pay P560 for a valid marriage it is certainly fooling the public for valid marriages in the Philippines are solemnized only by officers authorized to do so under the law. And to employ an agency for said purpose of contracting marriage is not necessary. No amount of reasoning that in the USA, Canada and other countries the trend is towards allowing lawyers to advertise their special skills to enable people to obtain from qualified practitioners legal services for their particular needs can justify the use of advertisements such as are the subject matter of the petition, for one (cannot) justify an illegal act even by whatever merit the illegal act may serve. The law has yet to be amended so that such act could become justifiable.

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We submit further that these advertisements that seem to project that secret marriages and divorce are possible in this country for a fee, when in fact it is not so, are highly reprehensible. It would encourage people to consult this clinic about how they could go about having a secret marriage here, when it cannot nor should ever be attempted, and seek advice on divorce, where in this country there is none, except under the Code of Muslim Personal Laws in the Philippines. It is also against good morals and is deceitful because it falsely represents to the public to be able to do that which by our laws cannot be done (and) by our Code of Morals should not be done.
In the case (of) In re Taguda, 53 Phil. 37, the Supreme Court held that solicitation for clients by an attorney by circulars of advertisements, is unprofessional, and offenses of this character justify permanent elimination from the Bar. 10

6. Federacion Internacional de Abogados: xxx xxx xxx 1.7 That entities admittedly not engaged in the practice of law, such as management consultancy firms or travel agencies, whether run by lawyers or not, perform the services rendered by Respondent does not necessarily lead to the conclusion that Respondent is not unlawfully practicing law. In the same vein, however, the fact that the business of respondent (assuming it can be engaged in independently of the practice of law) involves knowledge of the law does not necessarily make respondent guilty of unlawful practice of law. . . . . Of necessity, no one . . . . acting as a consultant can render effective service unless he is familiar with such statutes and regulations. He must be careful not to suggest a course of conduct which the law forbids. It seems . . . .clear that (the consultant's) knowledge of the law, and his use of that knowledge as a factor in determining what measures he shall recommend, do not constitute the practice of law . . . . It is not only presumed that all men know the law, but it is a fact that most men have considerable acquaintance with broad features of the law . . . . Our knowledge of the law accurate or inaccurate moulds our conduct not only when we are acting for ourselves, but when we are serving others. Bankers, liquor dealers and laymen generally possess rather precise knowledge of the laws touching their particular business or profession. A good example is the architect, who must be familiar with zoning, building and fire prevention codes, factory and tenement house statutes, and who draws plans and specification in harmony with the law. This is not practicing law. But suppose the architect, asked by his client to omit a fire tower, replies that it is required by the statute. Or the industrial relations expert cites, in support of some measure that he recommends, a decision of the National Labor Relations Board. Are they practicing law? In my opinion, they are not, provided no separate fee is charged for the legal advice or information, and the legal question is subordinate and incidental to a major non-legal problem. It is largely a matter of degree and of custom. If it were usual for one intending to erect a building on his land to engage a lawyer to advise him and the architect in respect to the building code and the like, then an architect who performed this function would probably be considered to be trespassing on territory reserved for licensed attorneys. Likewise, if the industrial relations field had been pre-empted by lawyers, or

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custom placed a lawyer always at the elbow of the lay personnel man. But this is not the case. The most important body of the industrial relations experts are the officers and business agents of the labor unions and few of them are lawyers. Among the larger corporate employers, it has been the practice for some years to delegate special responsibility in employee matters to a management group chosen for their practical knowledge and skill in such matter, and without regard to legal thinking or lack of it. More recently, consultants like the defendants have the same service that the larger employers get from their own specialized staff. The handling of industrial relations is growing into a recognized profession for which appropriate courses are offered by our leading universities. The court should be very cautious about declaring [that] a widespread, well-established method of conducting business is unlawful, or that the considerable class of men who customarily perform a certain function have no right to do so, or that the technical education given by our schools cannot be used by the graduates in their business. In determining whether a man is practicing law, we should consider his work for any particular client or customer, as a whole. I can imagine defendant being engaged primarily to advise as to the law defining his client's obligations to his employees, to guide his client's obligations to his employees, to guide his client along the path charted by law. This, of course, would be the practice of the law. But such is not the fact in the case before me. Defendant's primarily efforts are along economic and psychological lines. The law only provides the frame within which he must work, just as the zoning code limits the kind of building the limits the kind of building the architect may plan. The incidental legal advice or information defendant may give, does not transform his activities into the practice of law. Let me add that if, even as a minor feature of his work, he performed services which are customarily reserved to members of the bar, he would be practicing law. For instance, if as part of a welfare program, he drew employees' wills. Another branch of defendant's work is the representations of the employer in the adjustment of grievances and in collective bargaining, with or without a mediator. This is not per se the practice of law. Anyone may use an agent for negotiations and may select an agent particularly skilled in the subject under discussion, and the person appointed is free to accept the employment whether or not he is a member of the bar. Here, however, there may be an exception where the business turns on a question of law. Most real estate sales are negotiated by brokers who are not lawyers. But if the value of the land depends on a disputed right-of-way and the principal role of the negotiator is to assess the probable outcome of the dispute and persuade the opposite party to the same opinion, then it may be that only a lawyer can accept the assignment. Or if a controversy between an employer and his men grows from differing interpretations of a contract, or of a statute, it is quite likely that defendant should not handle it. But I need not reach a definite conclusion here, since the situation is not presented by the proofs. Defendant also appears to represent the employer before administrative agencies of the federal government, especially before trial examiners of the National Labor Relations Board. An agency of the federal government, acting by virtue of an authority granted by the Congress, may regulate the representation of parties before such agency. The State of New Jersey is without power to interfere with such determination or to forbid representation before the agency by one whom the agency admits. The rules of the National

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Labor Relations Board give to a party the right to appear in person, or by counsel, or by other representative. Rules and Regulations, September 11th, 1946, S. 203.31. 'Counsel' here means a licensed attorney, and ther representative' one not a lawyer. In this phase of his work, defendant may lawfully do whatever the Labor Board allows, even arguing questions purely legal. (Auerbacher v. Wood, 53 A. 2d 800, cited in Statsky, Introduction to Paralegalism [1974], at pp. 154-156.). 1.8 From the foregoing, it can be said that a person engaged in a lawful calling (which may involve knowledge of the law) is not engaged in the practice of law provided that: (a) The legal question is subordinate and incidental to a major non-legal problem;. (b) The services performed are not customarily reserved to members of the bar; . (c) No separate fee is charged for the legal advice or information. All these must be considered in relation to the work for any particular client as a whole. 1.9. If the person involved is both lawyer and non-lawyer, the Code of Professional Responsibility succintly states the rule of conduct: Rule 15.08 A lawyer who is engaged in another profession or occupation concurrently with the practice of law shall make clear to his client whether he is acting as a lawyer or in another capacity. 1.10. In the present case. the Legal Clinic appears to render wedding services (See Annex "A" Petition). Services on routine, straightforward marriages, like securing a marriage license, and making arrangements with a priest or a judge, may not constitute practice of law. However, if the problem is as complicated as that described in "Rx for Legal Problems" on the Sharon Cuneta-Gabby Concepcion-Richard Gomez case, then what may be involved is actually the practice of law. If a non-lawyer, such as the Legal Clinic, renders such services then it is engaged in the unauthorized practice of law. 1.11. The Legal Clinic also appears to give information on divorce, absence, annulment of marriage and visas (See Annexes "A" and "B" Petition). Purely giving informational materials may not constitute of law. The business is similar to that of a bookstore where the customer buys materials on the subject and determines on the subject and determines by himself what courses of action to take. It is not entirely improbable, however, that aside from purely giving information, the Legal Clinic's paralegals may apply the law to the particular problem of the client, and give legal advice. Such would constitute unauthorized practice of law. It cannot be claimed that the publication of a legal text which publication of a legal text which purports to say what the law is amount to legal practice. And the mere fact that the principles or rules stated in the text may be accepted by a particular reader as a solution to his problem does not affect this. . . . . Apparently it is urged that the conjoining of these two, that is, the text and the forms, with advice as to how the forms should be filled out, constitutes the unlawful practice of law. But that is the situation with many approved and accepted texts. Dacey's book is sold to the public at large. There is no personal contact or relationship with a particular individual. Nor does there exist that relation of confidence and trust so necessary to the status of attorney and client. THIS IS THE ESSENTIAL OF LEGAL PRACTICE

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THE REPRESENTATION AND ADVISING OF A PARTICULAR PERSON IN A PARTICULAR SITUATION. At most the book assumes to offer general advice on common problems, and does not purport to give personal advice on a specific problem peculiar to a designated or readily identified person. Similarly the defendant's publication does not purport to give personal advice on a specific problem peculiar to a designated or readily identified person in a particular situation in their publication and sale of the kits, such publication and sale did not constitutes the unlawful practice of law . . . . There being no legal impediment under the statute to the sale of the kit, there was no proper basis for the injunction against defendant maintaining an office for the purpose of selling to persons seeking a divorce, separation, annulment or separation agreement any printed material or writings relating to matrimonial law or the prohibition in the memorandum of modification of the judgment against defendant having an interest in any publishing house publishing his manuscript on divorce and against his having any personal contact with any prospective purchaser. The record does fully support, however, the finding that for the change of $75 or $100 for the kit, the defendant gave legal advice in the course of personal contacts concerning particular problems which might arise in the preparation and presentation of the purchaser's asserted matrimonial cause of action or pursuit of other legal remedies and assistance in the preparation of necessary documents (The injunction therefore sought to) enjoin conduct constituting the practice of law, particularly with reference to the giving of advice and counsel by the defendant relating to specific problems of particular individuals in connection with a divorce, separation, annulment of separation agreement sought and should be affirmed. (State v. Winder, 348, NYS 2D 270 [1973], cited in Statsky, supra at p. 101.). 1.12. Respondent, of course, states that its services are "strictly non-diagnostic, nonadvisory. "It is not controverted, however, that if the services "involve giving legal advice or counselling," such would constitute practice of law (Comment, par. 6.2). It is in this light that FIDA submits that a factual inquiry may be necessary for the judicious disposition of this case. xxx xxx xxx 2.10. Annex "A" may be ethically objectionable in that it can give the impression (or perpetuate the wrong notion) that there is a secret marriage. With all the solemnities, formalities and other requisites of marriages (See Articles 2, et seq., Family Code), no Philippine marriage can be secret.
2.11. Annex "B" may likewise be ethically objectionable. The second paragraph thereof (which is not necessarily related to the first paragraph) fails to state the limitation that only "paralegal services?" or "legal support services", and not legal services, are available." 11

A prefatory discussion on the meaning of the phrase "practice of law" becomes exigent for the proper determination of the issues raised by the petition at bar. On this score, we note that the clause "practice of law" has long been the subject of judicial construction and interpretation. The courts have laid down general principles and doctrines explaining the meaning and scope of the term, some of which we now take into account. Practice of law means any activity, in or out of court, which requires the application of law, legal procedures, knowledge, training and experience. To engage in the practice of law is to perform those acts which are characteristic of the profession. Generally, to practice law is to give advice or render any kind of service that involves legal knowledge or skill. 12

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The practice of law is not limited to the conduct of cases in court. It includes legal advice and counsel, and the preparation of legal instruments and contract by which legal rights are secured, although such matter may or may not be pending in a court. 13 In the practice of his profession, a licensed attorney at law generally engages in three principal types of professional activity: legal advice and instructions to clients to inform them of their rights and obligations, preparation for clients of documents requiring knowledge of legal principles not possessed by ordinary layman, and appearance for clients before public tribunals which possess power and authority to determine rights of life, liberty, and property according to law, in order to assist in proper interpretation and enforcement of law. 14 When a person participates in the a trial and advertises himself as a lawyer, he is in the practice of law. 15 One who confers with clients, advises them as to their legal rights and then takes the business to an attorney and asks the latter to look after the case in court, is also practicing law. 16 Giving advice for compensation regarding the legal status and rights of another and the conduct with respect thereto constitutes a practice of law. 17 One who renders an opinion as to the proper interpretation of a statute, and receives pay for it, is, to that extent, practicing law. 18 In the recent case of Cayetano vs. Monsod, 19 after citing the doctrines in several cases, we laid down the test to determine whether certain acts constitute "practice of law," thus: Black defines "practice of law" as: The rendition of services requiring the knowledge and the application of legal principles and technique to serve the interest of another with his consent. It is not limited to appearing in court, or advising and assisting in the conduct of litigation, but embraces the preparation of pleadings, and other papers incident to actions and special proceedings, conveyancing, the preparation of legal instruments of all kinds, and the giving of all legal advice to clients. It embraces all advice to clients and all actions taken for them in matters connected with the law. The practice of law is not limited to the conduct of cases on court.(Land Title Abstract and Trust Co. v. Dworken , 129 Ohio St. 23, 193N. E. 650). A person is also considered to be in the practice of law when he: . . . . for valuable consideration engages in the business of advising person, firms, associations or corporations as to their right under the law, or appears in a representative capacity as an advocate in proceedings, pending or prospective, before any court, commissioner, referee, board, body, committee, or commission constituted by law or authorized to settle controversies and there, in such representative capacity, performs any act or acts for the purpose of obtaining or defending the rights of their clients under the law. Otherwise stated, one who, in a representative capacity, engages in the business of advising clients as to their rights under the law, or while so engaged performs any act or acts either in court or outside of court for that purpose, is engaged in the practice of law. (State ex. rel. Mckittrick v. C.S. Dudley and Co., 102 S. W. 2d 895, 340 Mo. 852). This Court, in the case of Philippines Lawyers Association v. Agrava (105 Phil. 173, 176-177),stated: The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings and other papers incident to actions and special proceedings, the management of such actions and proceedings on behalf of clients before judges and courts, and in addition, conveying. In general, all advice to clients, and all action taken for them in matters connected with the law incorporation services, assessment and condemnation services contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy and insolvency proceedings, and conducting proceedings in attachment, and in matters or estate and guardianship have been held to

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constitute law practice, as do the preparation and drafting of legal instruments, where the work done involves the determination by the trained legal mind of the legal effect of facts and conditions. (5 Am. Jr. p. 262, 263). Practice of law under modern conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety of subjects and the preparation and execution of legal instruments covering an extensive field of business and trust relations and other affairs. Although these transactions may have no direct connection with court proceedings, they are always subject to become involved in litigation. They require in many aspects a high degree of legal skill, a wide experience with men and affairs, and great capacity for adaptation to difficult and complex situations. These customary functions of an attorney or counselor at law bear an intimate relation to the administration of justice by the courts. No valid distinction, so far as concerns the question set forth in the order, can be drawn between that part of the work of the lawyer which involves appearance in court and that part which involves advice and drafting of instruments in his office. It is of importance to the welfare of the public that these manifold customary functions be performed by persons possessed of adequate learning and skill, of sound moral character, and acting at all times under the heavy trust obligations to clients which rests upon all attorneys. (Moran, Comments on the Rules o Court, Vol. 3 [1973 ed.], pp. 665-666, citing In Re Opinion of the Justices [Mass], 194 N. E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 197 A. 139, 144). The practice of law, therefore, covers a wide range of activities in and out of court. Applying the aforementioned criteria to the case at bar, we agree with the perceptive findings and observations of the aforestated bar associations that the activities of respondent, as advertised, constitute "practice of law." The contention of respondent that it merely offers legal support services can neither be seriously considered nor sustained. Said proposition is belied by respondent's own description of the services it has been offering, to wit:
Legal support services basically consists of giving ready information by trained paralegals to laymen and lawyers, which are strictly non-diagnostic, non-advisory, through the extensive use of computers and modern information technology in the gathering, processing, storage, transmission and reproduction of information and communication, such as computerized legal research; encoding and reproduction of documents and pleadings prepared by laymen or lawyers; document search; evidence gathering; locating parties or witnesses to a case; fact finding investigations; and assistance to laymen in need of basic institutional services from government or non-government agencies, like birth, marriage, property, or business registrations; educational or employment records or certifications, obtaining documentation like clearances, passports, local or foreign visas; giving information about laws of other countries that they may find useful, like foreign divorce, marriage or adoption laws that they can avail of preparatory to emigration to the foreign country, and other matters that do not involve representation of clients in court; designing and installing computer systems, programs, or software for the efficient management of law offices, corporate legal departments, courts and other entities engaged in dispensing or administering legal services. 20

While some of the services being offered by respondent corporation merely involve mechanical and technical knowhow, such as the installation of computer systems and programs for the efficient management of law offices, or the computerization of research aids and materials, these will not suffice to justify an exception to the general rule. What is palpably clear is that respondent corporation gives out legal information to laymen and lawyers. Its contention that such function is non-advisory and non-diagnostic is more apparent than real. In providing information, for example, about foreign laws on marriage, divorce and adoption, it strains the credulity of this Court that all the respondent corporation will simply do is look for the law, furnish a copy thereof to the client, and stop there as if it were merely a bookstore. With its attorneys and so called paralegals, it will necessarily

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have to explain to the client the intricacies of the law and advise him or her on the proper course of action to be taken as may be provided for by said law. That is what its advertisements represent and for the which services it will consequently charge and be paid. That activity falls squarely within the jurisprudential definition of "practice of law." Such a conclusion will not be altered by the fact that respondent corporation does not represent clients in court since law practice, as the weight of authority holds, is not limited merely giving legal advice, contract drafting and so forth. The aforesaid conclusion is further strengthened by an article published in the January 13, 1991 issue of the Starweek/The Sunday Magazine of the Philippines Star, entitled "Rx for Legal Problems," where an insight into the structure, main purpose and operations of respondent corporation was given by its own "proprietor," Atty. Rogelio P. Nogales: This is the kind of business that is transacted everyday at The Legal Clinic, with offices on the seventh floor of the Victoria Building along U. N. Avenue in Manila. No matter what the client's problem, and even if it is as complicated as the Cuneta-Concepcion domestic situation, Atty. Nogales and his staff of lawyers, who, like doctors are "specialists" in various fields can take care of it. The Legal Clinic, Inc. has specialists in taxation and criminal law, medico-legal problems, labor, litigation, and family law. These specialist are backed up by a battery of paralegals, counsellors and attorneys. Atty. Nogales set up The Legal Clinic in 1984. Inspired by the trend in the medical field toward specialization, it caters to clients who cannot afford the services of the big law firms. The Legal Clinic has regular and walk-in clients. "when they come, we start by analyzing the problem. That's what doctors do also. They ask you how you contracted what's bothering you, they take your temperature, they observe you for the symptoms and so on. That's how we operate, too. And once the problem has been categorized, then it's referred to one of our specialists. There are cases which do not, in medical terms, require surgery or follow-up treatment. These The Legal Clinic disposes of in a matter of minutes. "Things like preparing a simple deed of sale or an affidavit of loss can be taken care of by our staff or, if this were a hospital the residents or the interns. We can take care of these matters on a while you wait basis. Again, kung baga sa hospital, out-patient, hindi kailangang ma-confine. It's just like a common cold or diarrhea," explains Atty. Nogales.
Those cases which requires more extensive "treatment" are dealt with accordingly. "If you had a rich relative who died and named you her sole heir, and you stand to inherit millions of pesos of property, we would refer you to a specialist in taxation. There would be real estate taxes and arrears which would need to be put in order, and your relative is even taxed by the state for the right to transfer her property, and only a specialist in taxation would be properly trained to deal with the problem. Now, if there were other heirs contesting your rich relatives will, then you would need a litigator, who knows how to arrange the problem for presentation in court, and gather evidence to support the case. 21

That fact that the corporation employs paralegals to carry out its services is not controlling. What is important is that it is engaged in the practice of law by virtue of the nature of the services it renders which thereby brings it within the ambit of the statutory prohibitions against the advertisements which it has caused to be published and are now assailed in this proceeding. Further, as correctly and appropriately pointed out by the U.P. WILOCI, said reported facts sufficiently establish that the main purpose of respondent is to serve as a one-stop-shop of sorts for various legal problems wherein a client may avail of legal services from simple documentation to complex litigation and corporate undertakings. Most of these services are undoubtedly beyond the domain of paralegals, but rather, are exclusive functions of lawyers engaged in the practice of law. 22

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It should be noted that in our jurisdiction the services being offered by private respondent which constitute practice of law cannot be performed by paralegals. Only a person duly admitted as a member of the bar, or hereafter admitted as such in accordance with the provisions of the Rules of Court, and who is in good and regular standing, is entitled to practice law. 23 Public policy requires that the practice of law be limited to those individuals found duly qualified in education and character. The permissive right conferred on the lawyers is an individual and limited privilege subject to withdrawal if he fails to maintain proper standards of moral and professional conduct. The purpose is to protect the public, the court, the client and the bar from the incompetence or dishonesty of those unlicensed to practice law and not subject to the disciplinary control of the court. 24 The same rule is observed in the american jurisdiction wherefrom respondent would wish to draw support for his thesis. The doctrines there also stress that the practice of law is limited to those who meet the requirements for, and have been admitted to, the bar, and various statutes or rules specifically so provide. 25 The practice of law is not a lawful business except for members of the bar who have complied with all the conditions required by statute and the rules of court. Only those persons are allowed to practice law who, by reason of attainments previously acquired through education and study, have been recognized by the courts as possessing profound knowledge of legal science entitling them to advise, counsel with, protect, or defend the rights claims, or liabilities of their clients, with respect to the construction, interpretation, operation and effect of law. 26 The justification for excluding from the practice of law those not admitted to the bar is found, not in the protection of the bar from competition, but in the protection of the public from being advised and represented in legal matters by incompetent and unreliable persons over whom the judicial department can exercise little control. 27 We have to necessarily and definitely reject respondent's position that the concept in the United States of paralegals as an occupation separate from the law profession be adopted in this jurisdiction. Whatever may be its merits, respondent cannot but be aware that this should first be a matter for judicial rules or legislative action, and not of unilateral adoption as it has done. Paralegals in the United States are trained professionals. As admitted by respondent, there are schools and universities there which offer studies and degrees in paralegal education, while there are none in the Philippines.28 As the concept of the "paralegals" or "legal assistant" evolved in the United States, standards and guidelines also evolved to protect the general public. One of the major standards or guidelines was developed by the American Bar Association which set up Guidelines for the Approval of Legal Assistant Education Programs (1973). Legislation has even been proposed to certify legal assistants. There are also associations of paralegals in the United States with their own code of professional ethics, such as the National Association of Legal Assistants, Inc. and the American Paralegal Association. 29 In the Philippines, we still have a restricted concept and limited acceptance of what may be considered as paralegal service. As pointed out by FIDA, some persons not duly licensed to practice law are or have been allowed limited representation in behalf of another or to render legal services, but such allowable services are limited in scope and extent by the law, rules or regulations granting permission therefor. 30 Accordingly, we have adopted the American judicial policy that, in the absence of constitutional or statutory authority, a person who has not been admitted as an attorney cannot practice law for the proper administration of justice cannot be hindered by the unwarranted intrusion of an unauthorized and unskilled person into the practice of law. 31 That policy should continue to be one of encouraging persons who are unsure of their legal rights and remedies to seek legal assistance only from persons licensed to practice law in the state. 32 Anent the issue on the validity of the questioned advertisements, the Code of Professional Responsibility provides that a lawyer in making known his legal services shall use only true, honest, fair, dignified and objective information or statement of facts. 33 He is not supposed to use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services. 34 Nor shall he pay or give something of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business. 35 Prior to the adoption of the code

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of Professional Responsibility, the Canons of Professional Ethics had also warned that lawyers should not resort to indirect advertisements for professional employment, such as furnishing or inspiring newspaper comments, or procuring his photograph to be published in connection with causes in which the lawyer has been or is engaged or concerning the manner of their conduct, the magnitude of the interest involved, the importance of the lawyer's position, and all other like self-laudation. 36 The standards of the legal profession condemn the lawyer's advertisement of his talents. A lawyer cannot, without violating the ethics of his profession. advertise his talents or skill as in a manner similar to a merchant advertising his goods. 37 The prescription against advertising of legal services or solicitation of legal business rests on the fundamental postulate that the that the practice of law is a profession. Thus, in the case of The Director of Religious Affairs. vs. Estanislao R. Bayot 38 an advertisement, similar to those of respondent which are involved in the present proceeding, 39 was held to constitute improper advertising or solicitation. The pertinent part of the decision therein reads: It is undeniable that the advertisement in question was a flagrant violation by the respondent of the ethics of his profession, it being a brazen solicitation of business from the public. Section 25 of Rule 127 expressly provides among other things that "the practice of soliciting cases at law for the purpose of gain, either personally or thru paid agents or brokers, constitutes malpractice." It is highly unethical for an attorney to advertise his talents or skill as a merchant advertises his wares. Law is a profession and not a trade. The lawyer degrades himself and his profession who stoops to and adopts the practices of mercantilism by advertising his services or offering them to the public. As a member of the bar, he defiles the temple of justice with mercenary activities as the money-changers of old defiled the temple of Jehovah. "The most worthy and effective advertisement possible, even for a young lawyer, . . . . is the establishment of a well-merited reputation for professional capacity and fidelity to trust. This cannot be forced but must be the outcome of character and conduct." (Canon 27, Code of Ethics.). We repeat, the canon of the profession tell us that the best advertising possible for a lawyer is a well-merited reputation for professional capacity and fidelity to trust, which must be earned as the outcome of character and conduct. Good and efficient service to a client as well as to the community has a way of publicizing itself and catching public attention. That publicity is a normal by-product of effective service which is right and proper. A good and reputable lawyer needs no artificial stimulus to generate it and to magnify his success. He easily sees the difference between a normal by-product of able service and the unwholesome result of propaganda. 40 Of course, not all types of advertising or solicitation are prohibited. The canons of the profession enumerate exceptions to the rule against advertising or solicitation and define the extent to which they may be undertaken. The exceptions are of two broad categories, namely, those which are expressly allowed and those which are necessarily implied from the restrictions. 41 The first of such exceptions is the publication in reputable law lists, in a manner consistent with the standards of conduct imposed by the canons, of brief biographical and informative data. "Such data must not be misleading and may include only a statement of the lawyer's name and the names of his professional associates; addresses, telephone numbers, cable addresses; branches of law practiced; date and place of birth and admission to the bar; schools attended with dates of graduation, degrees and other educational distinction; public or quasi-public offices; posts of honor; legal authorships; legal teaching positions; membership and offices in bar associations and committees thereof, in legal and scientific societies and legal fraternities; the fact of listings in other reputable law lists; the names and addresses of references; and, with their written consent, the names of clients regularly represented." 42 The law list must be a reputable law list published primarily for that purpose; it cannot be a mere supplemental feature of a paper, magazine, trade journal or periodical which is published principally for other purposes. For that reason, a lawyer may not properly publish his brief biographical and informative data in a

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daily paper, magazine, trade journal or society program. Nor may a lawyer permit his name to be published in a law list the conduct, management or contents of which are calculated or likely to deceive or injure the public or the bar, or to lower the dignity or standing of the profession. 43 The use of an ordinary simple professional card is also permitted. The card may contain only a statement of his name, the name of the law firm which he is connected with, address, telephone number and special branch of law practiced. The publication of a simple announcement of the opening of a law firm or of changes in the partnership, associates, firm name or office address, being for the convenience of the profession, is not objectionable. He may likewise have his name listed in a telephone directory but not under a designation of special branch of law. 44 Verily, taking into consideration the nature and contents of the advertisements for which respondent is being taken to task, which even includes a quotation of the fees charged by said respondent corporation for services rendered, we find and so hold that the same definitely do not and conclusively cannot fall under any of the above-mentioned exceptions. The ruling in the case of Bates, et al. vs. State Bar of Arizona, 45 which is repeatedly invoked and constitutes the justification relied upon by respondent, is obviously not applicable to the case at bar. Foremost is the fact that the disciplinary rule involved in said case explicitly allows a lawyer, as an exception to the prohibition against advertisements by lawyers, to publish a statement of legal fees for an initial consultation or the availability upon request of a written schedule of fees or an estimate of the fee to be charged for the specific services. No such exception is provided for, expressly or impliedly, whether in our former Canons of Professional Ethics or the present Code of Professional Responsibility. Besides, even the disciplinary rule in the Bates case contains a proviso that the exceptions stated therein are "not applicable in any state unless and until it is implemented by such authority in that state." 46 This goes to show that an exception to the general rule, such as that being invoked by herein respondent, can be made only if and when the canons expressly provide for such an exception. Otherwise, the prohibition stands, as in the case at bar. It bears mention that in a survey conducted by the American Bar Association after the decision in Bates, on the attitude of the public about lawyers after viewing television commercials, it was found that public opinion dropped significantly 47 with respect to these characteristics of lawyers: Trustworthy from 71% to 14% Professional from 71% to 14% Honest from 65% to 14% Dignified from 45% to 14% Secondly, it is our firm belief that with the present situation of our legal and judicial systems, to allow the publication of advertisements of the kind used by respondent would only serve to aggravate what is already a deteriorating public opinion of the legal profession whose integrity has consistently been under attack lately by media and the community in general. At this point in time, it is of utmost importance in the face of such negative, even if unfair, criticisms at times, to adopt and maintain that level of professional conduct which is beyond reproach, and to exert all efforts to regain the high esteem formerly accorded to the legal profession. In sum, it is undoubtedly a misbehavior on the part of the lawyer, subject to disciplinary action, to advertise his services except in allowable instances 48 or to aid a layman in the unauthorized practice of law. 49 Considering that Atty. Rogelio P. Nogales, who is the prime incorporator, major stockholder and proprietor of The Legal Clinic, Inc. is a member of the Philippine Bar, he is hereby reprimanded, with a warning that a repetition of the same or similar acts which are involved in this proceeding will be dealt with more severely. While we deem it necessary that the question as to the legality or illegality of the purpose/s for which the Legal Clinic, Inc. was created should be passed upon and determined, we are constrained to refrain from lapsing into an obiter on that aspect since it is clearly not within the adjudicative parameters of the present proceeding which is merely administrative in nature. It is, of course, imperative that this matter be promptly

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determined, albeit in a different proceeding and forum, since, under the present state of our law and jurisprudence, a corporation cannot be organized for or engage in the practice of law in this country. This interdiction, just like the rule against unethical advertising, cannot be subverted by employing some socalled paralegals supposedly rendering the alleged support services. The remedy for the apparent breach of this prohibition by respondent is the concern and province of the Solicitor General who can institute the corresponding quo warranto action, 50 after due ascertainment of the factual background and basis for the grant of respondent's corporate charter, in light of the putative misuse thereof. That spin-off from the instant bar matter is referred to the Solicitor General for such action as may be necessary under the circumstances. ACCORDINGLY, the Court Resolved to RESTRAIN and ENJOIN herein respondent, The Legal Clinic, Inc., from issuing or causing the publication or dissemination of any advertisement in any form which is of the same or similar tenor and purpose as Annexes "A" and "B" of this petition, and from conducting, directly or indirectly, any activity, operation or transaction proscribed by law or the Code of Professional Ethics as indicated herein. Let copies of this resolution be furnished the Integrated Bar of the Philippines, the Office of the Bar Confidant and the Office of the Solicitor General for appropriate action in accordance herewith. Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Davide, Jr., Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur

Footnotes 1 Rollo, 5. A facsimile of the scales of justice is printed together with and on the left side of "The Legal Clinic, Inc." in both advertisements which were published in a newspaper of general circulation. 2 433 U.S. 350, 53 L Ed 2d 810, 97 S Ct. 2691. 3 Resolution dated January 15, 1991, Rollo, 60; Resolution dated December 10, 1991, Rollo, 328. 4 Position Paper prepared by Atty. Basilio H. Alo, IBP Director for Legal Affairs, 1, 10; Rollo, 209, 218. 5 Memorandum prepared by Atty. Jose A. Grapilon, Chairman, Committee on Bar Discipline, and Atty. Kenny H. Tantuico, 16-18, 27-29, Rollo 414-416, 425-427. 6 Position Paper prepared by Atty. Rafael D. Abiera, Jr., Chairman, Committee on Lawyers' Rights and Legal Ethics, and Atty. Arturo M. del Rosario, President, 5-6; Rollo, 241-242. 7 Position Paper prepared by Atty. Lorenzo Sumulong, President, and Atty. Mariano M. Magsalin, Vice-President, 2, 4-5; Rollo, 93, 95-96. 8 Position Paper prepared by Atty. Victoria C. de los Reyes, 1-2; Rollo, 105-106. 9 Memorandum prepared by Atty. Victoria C. de los Reyes, 10-11; Rollo, 370-371. 10 Position Paper prepared by Atty. Leticia E. Sablan, Officer-in-Charge, WLAP Free Legal Aid Clinic, 1-2; Rollo, 169-170.

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11 Position Paper prepared by Atty. Lily C. Limpe, President, and Atty. Barbara Anne C. Migallos, 8-12, 23-24; Rollo, 139-143, 154-155. 12 Annotation: 111 ALR 23. 13 Howton vs. Morrow, 269 Ky. 1. 14 West Virginia State Bar vs. Earley, 109 S.E. 2d 420, 144 W.Va. 504; Rhode Island Bar Assoc. vs. Automobile Service Assoc. (R.I.) 179 A. 139, 144. 15 People vs. Castleman, 88 Colo. 229. 16 Depew, et al. vs. Witchita Assn. of Credit Men., Inc., 142 Kan. 403. 17 Fitchette vs. Taylor, 94 ALR 356. 18 Mandelaum vs. Gilbert and Barker Mfg. Co., 290 NYS 46218. 19 201 SCRA 210 (1991). 20 Comment of Respondent, 3; Rollo, 15. 21 Rollo, 130-131. 22 Memorandum of U.P. WILOCI, 12-13; Rollo, 372-373. 23 Sec. 1, Rule 138, Rules of Court. 24 Phil. Ass'n. of Free Labor Unions, et al. vs. Binalbagan-Isabela Sugar Co., et al., 42 SCRA 302 (1971). 25 7 C.J.S., Attorney and Client, 863, 864. 26 Mounier vs. Regcinh, 170 So. 567. 27 Lowell Bar Ass'n. vs. Loeb. 52 N.E. 2d 27, 315 Mass. 176; 7 C.J.S., Attorney and Client 64, 865. 28 Comment of Respondent, 2; Rollo, 14. 29 Position Paper, U.P. Women Lawyers' Circle (WILOCI), 11-12, citing Statsky, Introduction to Paralegalism, 214-224, West Publishing Co. (1974) and Shayne, The Paralegal Profession, Oceana Publications, 1977, Appendix II and III; Rollo, 116-117. 30 Illustrations: (a) A law student who has successfully completed his third year of the regular four-year prescribed law curriculum and is enrolled in a recognized law school's clinical legal education program approved by the Supreme Court (Rule 138-A, Rules of Court); (b) An official or other person appointed or designated in accordance with law to appear for the Government of the Philippines in a case in which the government has an interest (Sec. 33, Rule 138,id.);

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(c) An agent or friend who aids a party-litigant in a municipal court for the purpose of conducting the litigation (Sec. 34, Rule 138, id.); (d) A person, resident of the province and of good repute for probity and ability, who is appointed counsel de oficio to defend the accused in localities where members of the bar are not available (Sec. 4, Rule 116, id.); (e) Persons registered or specially recognized to practice in the Philippine Patent Office (now known as the Bureau of Patents, Trademarks and Technology Transfer) in trademark, service mark and trade name cases (Rule 23, Rules of Practice in Trademark Cases); (f) A non-lawyer who may appear before the National Labor Relations Commission or any Labor Arbiter only if (1) he represents himself as a party to the case; (2) he represents an organization or its members, provided that he shall be made to present written proof that he is properly authorized; or (3) he is duly-accredited members of any legal aid office duly recognized by the Department of Justice or the Integrated Bar of the Philippines in cases referred thereto by the latter (New Rules of Procedure of the National Labor Relations Commission); (g) An agent, not an attorney, representing the lot owner or claimant in a case falling under the Cadastral Act (Sec. 9, Act No. 2259); and (h) Notaries public for municipalities where completion and passing the studies of law in a reputable university or school of law is deemed sufficient qualification for appointment (Sec. 233, Administrative Code of 1917). See Rollo, 144-145. 31 7 C.J.S., Attorney and Client, 866; Johnstown Coal and Coke Co. of New York vs. U.S., 102 Ct. Cl. 285. 32 Florida Bar vs. Brumbaugth, 355 So. 2d 1186. 33 Canon 3, Code of Professional Responsibility. 34 Rule 3.01, id. 35 Rule 3.04, id. 36 Canon 27, Canons of Professional Ethics. 37 People vs. Smith, 93 Am. St. Rep. 206. 38 74 Phil. 579 (1944). 39 The advertisement in said case was as follows: "Marriage license promptly secured thru our assistance and the annoyance of delay or publicity avoided if desired, and marriage arranged to wishes of parties. Consultation on any matter free for the poor. Everything confidential.". 40 Agpalo, Legal Ethics, Fourth Edition (1989), 79-80. 41 Op. cit., 80. 43 * * * Missing * * * .

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44 Op. cit., 81, citing A.B.A. Op. 11 (May 11, 1927); A.B.A. Op. 24 (Jan. 24, 1930); A.B.A. Ops. 53 (Dec. 14, 1931), 123 (Dec. 14, 1934), (July 12, 1941), 241 (Feb. 21, 1942), 284 (Aug. 1951); and 286 (Sept. 25, 1952). . 45 Supra, Fn 2. 46 Id., 810, 825. 47 Position Paper of the Philippine Bar Association, 12, citing the American Bar Association Journal, January, 1989, p. 60; Rollo, 248. 48 In re Tagorda, 53 Phil. 37 (1929); The Director of Religious Affairs vs. Bayot, supra, Fn 38. 49 U.S. vs. Ney and Bosque, 8 Phil. 146 (1907); People vs. Luna, 102 Phil. 968 (1958). 50 Secs. 2 and 3, Rule 66, Rules of Court, in relation to Sec. 6(1), P.D. No. 902-A and Sec. 121, Corporation Code.

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Republic of the Philippines SUPREME COURT Manila EN BANC A. M. No. 2104 August 24, 1989 NARCISO MELENDREZ and ERLINDA DALMAN, complainants, vs. ATTY. REYNERIO I. DECENA, respondent.

PER CURIAM: In a sworn complaint 1 dated 25 September 1979, the spouses Erlinda Dalman and Narciso Melendrez charged Reynerio I. Decena, a member of the Philippine Bar, with malpractice and breach of trust. The complainant spouses alleged, among others, that respondent had, by means of fraud and deceit, taken advantage of their precarious financial situation and his knowledge of the law to their prejudice, succeeded in divesting them of their only residential lot in Pagadian City; that respondent, who was their counsel in an estafa case against one Reynaldo Pineda, had compromised that case without their authority. In his answer dated 18 March 1980, respondent denied all the charges levelled against him and prayed for the dismissal of the complaint. By resolution dated 14 April 1980, the administrative complaint was referred to the Office of the Solicitor General for investigation, report and recommendation. Accordingly, the Solicitor General forthwith deputized the City Fiscal of Pagadian City, Jorge T. Almonte, to conduct the necessary investigation, with instructions to submit thereafter this report and recommendation thereon. Fiscal Almonte held several hearings on the administrative case until 15 July 1982, when he requested the Solicitor General to release him from the duty of investigating the case. On 10 September 1982, the Solicitor General granted Fiscal Almonte's request and in his stead appointed the Provincial Fiscal of Zamboanga del Sur, Pedro S. Jamero, who resumed hearings on 15 June 1983. Respondent filed with this Court on 9 June 1987, a motion seeking to inhibit Fiscal Jamero from hearing the case followed by an urgent motion for indefinite postponement of the investigation. Both motions were denied by the Court in a Resolution dated 21 September 1987 with instructions to the Solicitor General to complete the investigation of the administrative case and to render his report and recommendation thereon within thirty (30) days from notice. On 19 July 1988, the Solicitor General submitted his Report and Recommendation 2 dated 21 June 1988. In as Report, after setting out the facts and proceedings held in the present case, the Solicitor General presented the following: FINDINGS Complainants allege that on August 5, 1975, they obtained from respondent a loan of P 4,000.00. This loan was secured by a real estate mortgage (Annex C, Complainants' Complaint, p. 16, records). In the said Real Estate Mortgage document, however, it was made to appear that the amount borrowed by complainants was P5,000.00. Confronted by this discrepancy, respondent assured complainants that said document was a mere formality, and upon such assurance, complainants signed the same. The document was
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brought by complainant Narciso Melendres to a Notary Public for notarization. After the same was notarized, he gave the document to respondent. Despite the assurance, respondent exacted from complainants P500.00 a month as payment for what is beyond dispute usurious interest on the P5,000.00 loan. Complainants religiously paid the obviously usurious interest for three months: September, October and November, 1975. Then they stopped paying due to financial reverses. In view of their failure to pay said amounts as interest, respondent prepared a new document on May 7, 1976, a Real Estate Mortgage (Annex D, Complaint, p. 18, records) over the same lot 3125-C, replacing the former real estate mortgage dated August 5, 1975, but this time the sum indicated in said new contract of mortgage is P 10,000.00, purportedly with interest at 19% per annum. In this new Real Estate Mortgage, a special power of attorney in favor of respondent was inserted, authorizing him to sell the mortgaged property at public auction in the event complainants fail to pay their obligation on or before May 30, 1976. Without explaining the provisions of the new contract to complainants, respondent insisted that complainants sign the same, again upon the assurance that the document was a mere formality. Unsuspecting of the motive of respondent, complainants signed the document. Complainants Narciso Melendres again brought the same document to a Notary Public for notarization. After the document was notarized, he brought the same to respondent without getting a copy of it. Complainants, relying on the assurance of the respondent that the second Real Estate Mortgage was but a formality, neither bothered to ask from respondent the status of their lot nor tried to pay their obligation. For their failure to pay the obligation, the respondent on October 12, 1976, applied for the extrajudicial foreclosure of the second real estate mortgage (Exhibit 16, Respondent's Position Paper). All the requirements of Act No. 3135, as amended, re extrajudicial sale of mortgage were ostensibly complied with by respondent. Hence, finally, title was transferred to him, and on June 20, 1979, respondent sold the involved property to Trinidad Ylanan for P12,000.00. When informed of the above by one Salud Australlado on the first week of March 1979 (see Sworn Statement of complainant Narciso Melendres, p. 6, Folder No. 2 of case), and not having known the legal implications of the provisions of the second Real Estate Mortgage which they had executed, complainants could not believe that title to their lot had already been transferred to respondent and that respondent had already sold the same to a third person. Upon learning of the sale in March, 1979, complainants tried to raise the amount of P10,000.00 and went to respondent's house on May 30, 1979 to pay their obligation, hoping that they could redeem their property, although three years had already lapsed from the date of the mortgage. Respondent did not accept the proffered P10,000.00, but instead gave complainants a sheet of paper (Annex B, Complainants' Position Paper), which indicated that the total indebtedness had soared to P20,400.00. The computation was made in respondent's own handwriting. Complainants went home with shattered hopes and with grief in their hearts. Hence, the instant competent for disbarment against respondent filed on October 5, 1979. Respondent DENIES all the allegations of complainants. He maintains that what appears on the two documents allegedly executed by complainants, i.e., that they obtained a loan of P5,000.00 on August 5, 1975 and another P10,000.00 on May 7,1976, is allegedly the truth, and claims that he in truth delivered the alleged amount of P5,000.00 to complainants and not P4,000.00. With respect to the second loan, respondent claims that he delivered to complainants P8,000.00, plus the P2,000.00 loan previously extended [to] complainants [by] one Regino Villanueva, which loan had been indorsed to respondent for collection, thus making a total of P10,000.00, as appearing on said document. Respondent denies that he exacted usurious interest of 10% a month or P500.00 from complainants. He asserts that the fact that complainants were able to secure a loan from the Insular Bank of Asia and America

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(IBAA) only proves the truth of his allegation that the title of the property, at the time complainants obtained a loan from IBAA on April 1976, was clear of any encumbrance, since complainants had already paid the original loan of P5,000.00 obtained from respondent; that complainants knew fully well all the conditions of said mortgage; and that his acquisition of the property in question was in accordance with their contract and the law on the matter. Thus, he denies that he has violated any right of the complainants. After weighing the evidence of both complainants and respondent, we find against respondent. While complainants are correct in their claim that they actually obtained an actual cash of P4,000.00, they are only partly correct in the claim that out of the P10,000.00 appearing in the second Real Estate Mortgage, P6,000.00 was applied to interest considering that not all the P6,000.00 but only P4,000.00 was applied to interest, computed as follows: the first loan of P5,000.00 was supposedly due on August 31, 1975. Complainants paid 10% monthly interest or P500.00 on September 30, 1975, October 31, 1975 and November 30, 1975. Consequently, beginning December 31, 1975 up to May 31, 1976 (the date of the execution of the second Real Estate Mortgage) a total of six (6) months lapsed. Six (6) months at P500.00 equals P 3,000.00, which amount plus the P2,000.00 complainants' loan to one Engr. Villanueva (indorsed to respondent for collection) totals P5,000.00. Adding this amount to the previous P5,000.00 indicated loan secured by the first mortgage results in P10,000.00, the amount appearing in the second Real Estate Mortgage. Section 7, Rule 130 of the Rules of Court provides: SEC. 7. Evidence of written agreements. When the terms of an agreement have been reduced to writing, it is to be considered as complaining all such terms, and, therefore, there can be, as between the parties and their successors in interest, no evidence of the terms of the agreement other than the contents of the writing, except in the following cases: (a) Where a mistake or imperfection of the writing, or its failure to express the true intent and agreement of the parties, or the validity of the agreement is put in issue by the pleadings; (b) Where there is an intrinsic ambiguity in the writing. The term "agreement" includes wills. There is no dispute that the two documents denominated Real Estate Mortgages covering the supposed original loan of P5,000.00 and the inflated P10,000.00, respectively, were voluntarily signed by the complainants. The general rule is that when the parties have reduced their agreement to writing, it is presumed that they have made the writing the only repository and memorial of the truth, and whatever is not found in the writing must be understood to have been waived and abandoned. However, the rule is not absolute as it admits of some exceptions, as aforequoted. One of the exceptions, that is, failure to express the true intent and agreement of the parties, applies in this case.From the facts obtaining in the case, it is clear that the complainants were induced to sign the Real Estate Mortgage documents by the false and fraudulent representations of respondent that each of the successive documents was a are formality. While it may be true that complainants are not at all illiterate, respondent, being a lawyer, should have at least explained to complainants the legal implications of the provisions of the real estate mortgage, particularly the provision appointing him as the complainants' attorneyin-fact in the event of default in payments on the part of complainants. While it may be conceded that it is presumed that in practice the notary public apprises complainants of the legal implications of the contract, it is of common knowledge that most notaries public do not go through the desired practice. Respondent at least could have informed the complainants by sending a demand letter to them to pay their obligation as otherwise he would proceed to sell the lot at public auction as per their contract. This respondent failed to do, despite the

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fact that he knew fully wen that complainants were trying their best to raise money to be able to pay their obligation to him, as shown by the loan obtained by complainants from the IBAA on April 8, 1976. In this connection, it may be stated that complainants, per advice of respondent himself, returned the proceeds of the IBAA loan to the bank immediately on April 30, 1976, considering that the net proceeds of the loan from said bank was only P4,300.00 and not enough to pay the indicated loan from respondent of P5,000.00, which per computation of respondent would already have earned interest of P2,500.00 for five (5) months (December 1975 to April, 1976). Respondent claims that complainants had paid him the original loan of P5,000.00, and that this was the reason why complainants were able to mortgage the lot to the bank free from any encumbrance. This claim is incorrect. The reason why the title (T-2684) was free from any encumbrance was simply because of the fact that the first Real Estate Mortgage for the indicated loan of P5,000.00 (the actual amount was only P 4,000.00) had not been annotated at the back of the title (see Annex B, p. 14, rec.). Respondent also denies that complainants offered to him the amount of Pl0,000. 00 as payment of the loan, alleging that if the offer were true, he could have readily accepted the same since he sold the lot for almost the same amount, for only P12,000.00, a difference of a few thousand pesos. Respondent's denial is spacious. Indeed, complainants made the offer, but respondent refused the same for the simple reason that the offer was made on May 30,1979, three (3) years after the execution of the mortgage on May 31, 1976. With its lapse of time, respondent demanded obviously the payment of the accumulated substantial interest for three years, as shown by his own computation in as own handwriting on a sheet of paper (Annex C, Complainants' Position Paper, Folder No. 2).
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In view of all the foregoing, the observation made by the Hearing Officer is worth quoting: In the humble opinion of the undersigned the pivotal question with respect to this particular charge is whose version is to be believed. Is it the version of the complainants or the version of the respondent. In resolving this issue the possible motive on the part of the complainants in filing the present complaint against the respondent must be carefully examined and considered. At the beginning there was a harmonious relationship between the complainants and the respondent so much so that respondent was even engaged as counsel of the complainants and it is but human nature that when respondent extended a loan to the complainants the latter would be grateful to the former. However, in the case at bar, complainants filed a complaint against the respondent in spite of the great disparity between the status of the complainants and the respondent. Admittedly, respondent is in a better position financially, socially and intellectually. To the mind of the undersigned, complainants were only compelled to file the above entitled complaint against the respondent because they felt that they are so aggrieved of what the respondent has done to them. It is for this reason therefore that the undersigned is inclined to believe the version of the complainants rather than of the respondent. In addition thereto, the respondent as a lawyer could really see to it that the transaction between the complainants and himself on papers appear legal and in order. Besides, there is ample evidence in the records of its case that respondent is actually engaged in lending money at least in a limited way and that the interest at the rate of ten per cent a month is but common among money lenders during the time of the transactions in question' Going now into the second charge, complainants alleged that respondent, who was their counsel (private prosecutor) in Criminal Case No. 734, for estafa, against accused Reynaldo Pineda, compromised the case with the accused without their consent and received the

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amount of P500.00 as advance payment for the amicable settlement, without however, giving to the complainants the Id amount nor informing them of said settlement and payment. Again, respondent denies the allegation and claims that the amicable settlement was with the consent of complainant wife Erlinda Dalman Melendre[z]. We are inclined to believe the version of the complainants. It is admitted that complainants were not interested in putting the accused Reynaldo Pineda to jail but rather in merely recovering their money of P2,000.00. At this stage, relationship between complainants and respondent was not yet strained, and respondent, as counsel of the complainants in this case, knew that complainants were merely interested in said recovery. Knowing this, respondent on his own volition talked to accused and tried to settle the case amicably for P2,000.00. He accepted the amount of P500.00 as advance payment, being then the only amount carried by the accused Pineda. A receipt was signed by both respondent and accused Pineda (Annex M, p. 34, record). However, respondent did not inform complainants about this advance payment, perhaps because he was still waiting for the completion of the payment of P2,000.00 before turning over the whole amount to complainants. At any rate, complainants saw accused Pineda give the abovementioned P500.00 to respondent, but they were ashamed then to ask directly of respondent what the money was all about. On June 27, 1979, barely a month after May 30, 1979, when the complainants had already lost their trust and respect and/or confidence in respondent upon knowing what happened to their lot and, more so, upon respondent's refusal to accept the Pl0,000.00 offered by complainants to redeem the same, Narciso Melendre[z] saw the accused Pineda on his way home and confronted him on the P500.00 that had been given to respondent. Accused then showed complainant Melendres the receipt (Annex M, Id.) showing that the P500.00 was an advance payment for the supposed settlement/dismissal of the case filed by complainants against him. Sensing or feeling that respondent was fooling them, complainants then filed a motion before the court which was trying the criminal case and relieved respondent as their counsel. The Investigating Fiscal, who heard the case and saw the demeanor of the witnesses in testifying, had this to say: With respect to the second charge, the fact that respondent received P500.00 from Reynaldo Pineda is duly established. Both the complainants and the respondent agreed that the said amount was given to the respondent in connection with a criminal case wherein the complainants were the private offended parties: that Reynaldo Pineda is the accused and that the respondent is the private prosecutor of the said case. The pivotal issue in this particular charge is whether the respondent received the amount of P500.00 from Reynaldo Pineda as an advance payment of an amicable settlement entered into by the complainants and the accused or the respondent received said amount from the accused without the knowledge and consent of the complainants. If it is true as alleged by the respondent that he only received it for and in behalf of the complainants as advance payment of an amicable settlement why is it that the same was questioned by the complainants? Why is it that it was not the complainants who signed the receipt for the said amount? How come that as soon as complainants knew that the said amount was given to the respondent, the former filed a motion in court to relieve respondent as their counsel on the ground that they have lost faith and confidence on him? If it is really true that complainants have knowledge and have consented to this amicable settlement they should be grateful to the efforts of their private prosecutor yet the fact is that they resented the same and went to the extent of disqualifying

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the respondent as their private prosecutor. Reynaldo Pineda himself executed an affidavit belying the claim of the respondent.' Clearly, the complained acts as described and levelled against respondent Decena are contrary to justice, honesty, modesty, or good morals for which he may be suspended. The moral turpitude for which an attorney may be disbarred may consist of misconduct in either his professional or non- professional attitude (Royong v. Oblena, 7 SCRA 859). The complained acts of respondent imply something immoral in themselves, regardless of the fact whether they are punishable by law. The doing of the act itself, and not its prohibition by statute, fixes the moral turpitude (Bartos vs. U.S. Dist. Court for District of Nebraska C.C.C. Neb] 19 F [2d] 722). A parting comment. All the above is not to say that complainants themselves are faultless. Complainants should likewise be blamed for trusting the respondent too much. They did not bother to keep a copy of the documents they executed and considering that they admitted they did not understand the contents of the documents, they did not bother to have them explained by another lawyer or by any knowledgeable person in their locality. Likewise, for a period of three years, they did not bother to ask for respondent the status of their lot and/or their obligation to him. Their complacency or apathy amounting almost to negligence contributed to the expedient loss of their property thru the legal manuevers employed by respondent. Hence, respondent's liability merits mitigation. (Emphasis supplied) and made the following recommendation:
WHEREFORE, it is respectfully recommended that Atty. Reynerio I. Decena be suspended from the practice of law for a period of five (5) years. 3

The Office of the Solicitor General, through Fiscals Almonte and Jamero, held several hearings during the investigation of the present administrative case: City Fiscal Jorge T. Almonte was able to hold six (6) actual hearings out of twenty-five (25) resettings 4 While only five (5) actual hearings, out of forty (40) resettings 5 were held under Provincial Fiscal Pedro S. Jamero. In those hearings, the complainants presented a number of witnesses who, after their direct testimony, were cross-examined by the counsel for respondent; complainant Narciso Melendrez also testified and was accordingly cross-examined. Considering the long delay incurred in the investigation of the administrative case and having been pressed by the Solicitor General immediately to complete the investigation, Fiscal Jamero posed a change of procedure, from trial type proceedings to requiring the parties to submit their respective position papers. The complainants immediately filed their position paper which consisted of their separate sworn statements, (that of Narciso Melendrez was in a question and answer form), their documentary exhibits and an affidavit of one Jeorge G. Santos. Respondent also filed his counter-affidavit and affidavits of his witnesses, with several annexes in support thereof In the healing of 28 October 1987, which had been set for the cross examination of the complainants and their witnesses by respondent, the complainants refused to submit themselves to cross-examination on the ground that the order of the hearing officer dated 17 December 1986 declaring respondent's right of cross examination as having been waived, had become final and executory. Respondent questions now the evidentiary value of the complainants' position paper, not having passed through any cross-examination and argues that the non-submission of the complainants and their witnesses to cross-examination constitutes a denial of his right to due process. We do not think respondent's right to confront the complainants and their witnesses against him has been violated, Respondent in fact cross-examined complainant Narciso Melendrez and some of the witnesses which complainants had presented earlier. As pointed out by the Solicitor General, the record of the proceedings shows that respondent had all the opportunity to cross-examine the other witnesses of the complainants (those whose affidavits were attached to complainants' position paper) had he wanted to, but had forfeited such opportunity by asking for numerous continuances which indicated a clear attempt on his

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part to delay the investigation proceedings. Respondent had in fact requested a total of twenty three (23) resettings during the investigation proceedings: he had eight (8) under Fiscal Almonte and fifteen (15) under Fiscal Jamero. There were also instances where respondent asked for postponement and at the same time reset the hearing to a specific date of his choice on which neither he nor as counsel would appear. That attitude of respondent eventually led the hearing officer to declare his (respondent's) right to cross-examine the complainants and their witnesses as having been waived in his order of 17 December 1986. Respondent can not now claim that he had been deprived below of the opportunity to confront the complainants and their witnesses. After carefully going through the record of the proceedings as well as the evidence presented by both parties, we agree with the findings and conclusions of the Solicitor General. The following acts of respondent: 1. making it appear on the 5 August 1975 real estate mortgage that the amount loaned to complainants was P5,000.00 instead of P4,000.00; 2. exacting grossly unreasonable and usurious interest; 3. making it appear in the second real estate mortgage of 7 May 1976 that the loan extended to complainants had escalated to P10,000.00; 4. failing to inform complainants of the import of the real mortgage documents and inducing them to sign those documents with assurances that they were merely for purposes of "formality"; 5. failing to demand or refraining from demanding payment from complainants before effecting extrajudicial foreclosure of the mortgaged property; and 6. failing to inform or refraining from informing complainants that the real estate mortgage had already been foreclosed and that complainants had a right to redeem the foreclosed property within a certain period of time. constitute deception and dishonesty and conduct unbecoming a member of the Bar. We agree with the Solicitor General that the acts of respondent "imply something immoral in themselves regardless of whether they are punishable by law" and that these acts constitute moral turpitude, being "contrary to justice, honesty, modesty or good morals." The standard required from members of the Bar is not, of course, satisfied by conduct which merely avoids collision with our criminal law. Even so, respondent's conduct, in fact, may be penalizable under at least one penal statute the anti-usury law. The second charge against respondent relates to acts done in his professional capacity, that is, done at a time when he was counsel for the complainants in a criminal case for estafa against accused Reynaldo Pineda. There are two (2) aspects to this charge: the first is that respondent Decena effected a compromise agreement concerning the civil liability of accused Reynaldo Pineda without the consent and approval of the complainants; the second is that, having received the amount of P500.00 as an advance payment on this "settlement," he failed to inform complainants of that advance payment and moreover, did not turn over the P500.00 to the complainants. The facts show that respondent "settled" the estafa case amicably for P2,000.00 without the knowledge and consent of complainants. Respondent informed complainants of the amicable "settlement" and of the P500.00 advance payment only after petitioner Narciso Melendrez had confronted him about these matters. And respondent never did turn over to complainants the P500.00. Respondent is presumed to be aware of the rule that lawyers cannot "without special authority, compromise their clients' litigation or receive anything in discharge of a client's claim, but the full amount in cash. 6 Respondent's failure to turn over to complainants the amount given by accused Pineda as partial "settlement" of the estafa case underscores his lack of honesty and candor in dealing with his clients.

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Generally, a lawyer should not be suspended or disbarred for misconduct committed in his personal or nonprofessional capacity. Where however, misconduct outside his professional dealings becomes so patent and so gross as to demonstrate moral unfitness to remain in the legal profession, the Court must suspend or strike out the lawyer's name from the Rollo of Attorneys. 7 The nature of the office of an attorney at law requires that he shall be a person of good moral character. This qualification is not only a condition precedent to admission to the practice of law; its continued possession is also essential for remaining in the practice of law, in the exercise of privileges of members of the Bar. Gross misconduct on the part of a lawyer, although not related to the discharge of professional duties as a member of the Bar, which puts his moral character in serious doubt, renders him unfit to continue in the practice of law. 8 In the instant case, the exploitative deception exercised by respondent attorney upon the complainants in his private transactions with them, and the exacting of unconscionable rates of interest, considered together with the acts of professional misconduct committed by respondent attorney, compel this Court to the conviction that he has lost that good moral character which is indispensable for continued membership in the Bar. WHEREFORE, respondent Reynerio I. Decena is hereby DISBARRED and his name shall be stricken from the Rollo of Attorneys. Let a copy of this Resolution be FURNISHED each to the Bar Confidant and spread on the personal records of respondent attorney, and to the Integrated Bar of the Philippines. Fernan, (C.J.), Narvasa, Melencio-Herrera, Gutierrez, Jr., in Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Gr;no-Aquino, Medialdea and Regalado, JJ., concur. Footnotes 1 The complaint was originally filed on 29 August 1979 with the Integrated Bar of the Philippines (Zamboanga del Sur Chapter) and was referred to this Court on 17 November 1979. 2 Rollo, p. 94; Report and Recommendation, pp. 42-59. 3 Id., pp. 52-53. 4 December 22, 1980; January 9, 1981; January 24, 1981; February 7, 1981; February 21, 1981; February 28, 1981; March 7, 1981; March 26 & 27,1981; April 9 & 10, 1981; April 27 & 28,1981; May 12, 1981; May 13,1981; July 2,1981; July 3,1981; August 17 & 19,1981; October 5 & 8, 1981; October 7 to 8, 1981; November 23 to 26, 1981; February 22 to 26, 1982; February 22, 1982; February 23, 1982; February 24,1982; April 29 & 30,1982; June 10 to 11, 1982; and June 28 to 29, 1 982 (Total-25). 5 June 15, 1983; November, 1983; December 12, 1983; February 24,1984; March 1, 1984; April 17,1984; May 9 & 16,1984; June 20 to 21, 1984; July 16, 1984; September 5, 1984; October 3, 1984; October 22, 1984; December 27, 1984; February 18, 1985; March 13, 1985; April 29, 1985; May 9, 1985; May 28 to 29, 1985; July 17, 1985; September 27, 1985; October 10, 1985; November 13, 1985; January 27, 1986; February 20, 1986; October 16, 1986; November 7, 1986; November 11, 1986; December 17,1986; December 24,1986; January 9, 1987; February 26, 1987; March 26, 1987; April 24, 1987; May 18, 1987: June 8, 1987; October 16, 1987; October 21, 1987; October 26, 1987; and October 28,1987 (Total40). 6 Section 23, Rule 138 of the Revised Rules of Court. 7 Manolo v. Gan, 93 Phil. 202 (1953). 8 Caballero v. Deipairan 60 SCRA 136 (1974); Balinon v. De Leon, 94 Phil. 277 (1954).

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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 40457 May 8, 1992 MOBIL OIL PHILIPPINES, INC., petitioner, vs. COURT OF FIRST INSTANCE OF RIZAL, BRANCH VI, GEMINIANO F. YABUT and AGUEDA ENRIQUEZ YABUT, respondents. Ramon O. Nolasco and Manuel N. Camacho for petitioner. Felipe C. Magat for private respondents.

NOCON, J.: This is a petition for review on certiorari filed by petitioner Mobil Oil Philippines, Inc. questioning (1) the Order of respondent Court of First Instance, Branch VI, Pasig, Rizal, promulgated on November 20, 1974 declaring its earlier Decision dated July 25, 1974 as null and void insofar as it concerned private respondents Geminiano F. Yabut and Agueda EnriquezYabut, and (2) the Order promulgated on February 20, 1975 and denying petitioner's Motion for the Issuance of a Writ of Execution and Appointment of Special Sheriff. The facts of the case are as follows: On November 8, 1972, petitioner filed a complaint 1 in the Court of First Instance of Rizal against the partnership La Mallorca and its general partners, which included private respondents, for collection of a sum of money arising from gasoline purchased on credit but not paid, for damages and attorney's fees. On December 22, 1972, petitioner, with leave of court, filed an Amended Complaint 2 impleading the heirs of the deceased partners as defendants. During the hearing held on April 1, 1974, after petitioner had presented its evidence, the parties agreed to submit the case for decision on the basis of the evidence on record adduced by petitioner but "to exclude past interest in the amount of P150,000.00 and to award nominal attorney's fees." Consequently, on July 25, 1974, a Decision 3 was rendered in favor of the petitioner and against defendants. Private respondents thereafter filed a Petition to Modify Decision and/or Petition for Reconsideration, 4 which was opposed 5 by petitioner. The Petition to Modify Decision and/or Reconsideration is predicated on the following grounds: 1. That there was no stipulation or agreement of the parties on the award of attorney's fees; 2. That Miguel Enriquez, not being a general partner, could not bind the partnership in the Sales Agreement he signed with plaintiff; and

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3. That defendant Geminiano Yabut already withdrew as partner and president of La Mallorca as of September 14, 1972. On November 20, 1974, respondent court issued its disputed Order 6 declaring its decision null and void insofar as private respondents were concerned on the ground that there was no evidence to show that the counsel for the defendants had been duly authorized by their respective clients to enter into a stipulation or facts, a compromise agreement or a confession judgment with petitioner, a ground never raised by the parties. Petitioner filed a Motion for Reconsideration and Clarification, 7 seeking the reconsideration of said order or, if not reconsidered, clarification from respondent court as to whether or not there will be further proceedings for reception of private respondents' evidence in court. Respondent court denied the motion, as well as petitioner's Motion for the Issuance of a Writ of Execution and Appointment of Special Sheriff, by way of the Order dated February 20, 1975. Hence, this petition. The issue presented before Us is whether or not public respondent acted with grave abuse of discretion amounting to lack of jurisdiction in declaring null and void its earlier decision of July 25, 1974. We find merit in the instant petition. In the Order of November 20, 1974, 8 respondent court declared the decision dated July 25, 1974 null and void for the following reason: There is no evidence on record to show that the attorneys of record for the defendants had been duly authorized by their respective clients, including present movants, to enter into a stipulation of facts or a compromise agreement of confession of judgment. Ant any settlement or confession of judgment which an attorney may enter for his client without any written authority cannot bind the client. To be sure, the stipulation of facts which amounts to or approximates a compromise agreement, or waives a right or practically confesses judgment, entered into by a lawyer without the consent and conformity of his clients, is an absolute nullity. This precisely is what appears to be the stipulation of the movants, as well as the other defendants as the records show. In view of the conclusion thus reached, it would appear that there is no necessity to discuss the other grounds raised by the movants. The records show that the petitioner had already adduced evidence and formally offered its evidence in court; that at the hearing of April 1, 1974, for the presentation of defendants' evidence, the parties through their counsels, 9 mutually agreed to the waiver of the presentation of defendants' evidence on one hand, and the waiver of past interest in the amount of P150,000.00 on the part of the plaintiff and the payment of only nominal attorney's fees, thus the respondent court issued the following Order: Calling this case for hearing today, the parties pray the Court that they are submitting the case for decision on the basis of the evidence thus presented but to exclude past interest in the amount of about P150,000.00 and to award nominal attorney's fees. Finding the said motion in order, let judgment be rendered in accordance with the evidence so far presented. 10

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The foregoing Order is not a stipulation of facts nor a confession of judgment. If at all, there has been a mutual waiver by the parties of the right to present evidence in court on the part of the defendants on one hand, and waiver of interest in the amount of P150,000.00 and the stipulated attorney's fees of 25% of the principal amount on the part of the plaintiff, except a nominal one. The counsels of the parties in this case had the implied authority to do all acts necessary or incidental to the prosecution and management of the suit in behalf of their clients of their clients who were all present and never objected to the disputed order of the respondent court. They have the exclusive management of the procedural aspect of the litigation including the enforcement of the rights and remedies of their client. Thus, when the case was submitted for decision on the evidence so far presented, the counsel for private respondents acted within the scope of his authority as agent and lawyer in negotiating for favorable terms for his clients. It may be that in waiving the presentation of defendants' evidence, counsel believed that petitioner's evidence was insufficient to prove its cause of action or knowing the futility of resisting the claim, defendants opted to waive their right to present evidence in exchange for the condonation of past interest in the amount of around P150,000.00 and the award of a nominal attorney's fees instead of the 25% stipulated in the Sales Agreement and Invoices. In fact, when counsel secured a waiver of the accumulated interest of P150,000.00 and the 25% stipulated attorney's fees, the defendants were certainly benefited. Parties are bound by the acts and mistakes of their counsel in procedural matters. Mistakes of counsel as to the relevancy or irrelevancy of certain evidence or mistakes in the proper defense, in the introduction of certain evidence, or in argumentation are, among others all mistakes of procedure, and they bind the clients, as in the instant case. 11 Having obtained what defendants bargained for and having wrongly appreciated the sufficiency or insufficiency of petitioner's evidence, private respondents are now estopped from assailing the decision dated July 25, 1974. Records would show that private respondents have not submitted any evidence or pleading to contest the authority of their counsel to waive as he did waive presentation of their evidence in exchange for and in consideration of petitioner's waiver of past interest and the stipulated 25% of attorney' fees. Even if We construe the Order of April 1, 1974 to be based on an oral compromise agreement, the same is valid for as held in the case of Cadano vs. Cadano 12 an oral compromise may be the basis of a judgment although written evidence thereof is not signed. It has been said that the elements necessary to a valid agreement of compromise are the reality of the claim made and the bona fides of the compromise. 13 The validity of a judgment or order of a court cannot be assailed collaterally unless the ground of attack is lack of jurisdiction or irregularity in their entry apparent on the face of the record or because it is vitiated by fraud. If the purported nullity of the judgment lies on the party's lack of consent to the compromise agreement, the remedy of the aggrieved party is to have it reconsidered, and if denied, to appeal from such judgment, or if final to apply for relief under rule 38. 14 It is well settled that a judgment on compromise is not appealable and is immediately executory unless a motion is field to set aside the compromise on the ground of fraud, mistake or duress, in which case an appeal may be taken from the order denying the motion. 15 Moreover, We do not find the grounds relied upon in private respondents' Petition to Modify Decision to be meritorious.

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Mr. Miguel Enriquez automatically became a general partner of the partnership La Mallorca being one of the heirs of the deceased partner Mariano Enriquez. Article IV of the uncontested Articles of Co-Partnership of La Mallorca provides: IV. Partners. The parties above-named, with their civil status, citizenship and residences set forth after their respective names, shall be members comprising this partnership, all of whom shall be general partners. If during the existence of this co-partnership, any of the herein partners should die, the co-partnership shall continue to exist amongst the surviving partners and the heir or heirs of the deceased partner or partners; Provided, However, that if the heir or heirs of the deceased partner or partners elect not to continue in the co-partnership, the surviving partners shall have the right to acquire the interests of the deceased partner or partners at their book value based upon the last balance sheet of the co-partnership, and in proportion to their respective capital contributions; And, Provided Further, that should a partner or partners desire to withdraw from the co-partnership and the remaining partners are not willing to acquire his or their shares or interest in the co-partnership in accordance with the foregoing provisions, the co-partnership shall not thereby be dissolved, but such retiring partner or partners shall only be entitled to his or their shares in the assets of the co-partnership according to the latest balance sheet which have been drawn prior to the date of his or their withdrawal. In such event, the copartnership shall continue amongst the remaining partners. 16 As to respondent Geminiano Yabut's claim that he cannot be liable as a partner, he having withdrawn as such, does not convince Us. The debt was incurred long before his withdrawal as partner and his resignation as President of La Mallorca on September 14, 1972. Respondent Geminiano Yabut could not just withdraw unilaterally from the partnership to avoid his liability as a general partner to third persons like the petitioner in the instant case. This is likewise true with regard to the alleged non-active participation of respondent Agueda Yabut in the partnership. Active participation in a partnership is not a condition precedent for membership in a partnership so as to be entitled to its profits nor be burdened with its liabilities. From the foregoing, it is evident that the court a quo erred in issuing the Orders of November 20, 1974 and February 20, 1975 nullifying the decision dated July 25, 1974 and dismissing the complaint against private respondents Geminiano Yabut and Agueda Enriquez Yabut. WHEREFORE, the Orders of November 20, 1974 and February 20, 1975 is hereby REVERSED and SET ASIDE and the Decision dated July 25, 1975 is reinstated and declaring the same valid and binding against private respondents Geminiano Yabut and Agueda Enriquez-Yabut. With costs de officio. SO ORDERED. Melencio-Herrera, Paras and Regalado, JJ., concur. Padilla, J., took no part.

Footnotes

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1 Annex "A," Petition, Rollo, pp. 11-15. 2 Annex "B," Petition, Rollo, pp. 23-29. 3 The dispositive portion of which reads, as follows: WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants ordering the defendant La Mallorca Partnership to pay the plaintiff the sum of P337,393.94; on the second cause of action, ordering La Mallorca Partnership to pay the plaintiff the sum of P401,129.00 with legal interest at the legal rate from the date of the filing of the complaint until fully paid, but in default of such payment, ordering all the defendant's partners to pay the plaintiff, jointly and subsidiarily, all the said amount, on the third cause of action, ordering La Mallorca Partnership to pay the plaintiff by way of attorney's fees a sum equivalent to 10% of all the amounts under the first and second cause of action, and in default of such payment, ordering the defendant's partners to pay the plaintiff, jointly and subsidiarily the said amount, and to pay the costs. The Compulsory Counterclaim interposed by defendants La Mallorca, et. al., represented by Atty. Felipe C. Magat, is hereby dismissed for lack of merit. SO ORDERED. Annex "D," Petition, Rollo, pp. 53-60. 4 Annex "E," Petition, Rollo, pp. 61-66. 5 Annex "F," Petition, Rollo, pp. 70-77. 6 Annex "G," Petition, Rollo, pp. 83-85. 7 Annex "H," Petition, Rollo, p. 86. 8 Annex "G," supra. 9 Atty. Cesar Barroya (for Mobil), Atty. Fidel Zosimo Canilao (for partners Alfredo Balingit and Manuela Enriquez Balingit), Atty. Felipe Magat (for all other partners including Geminiano Yabut and Agueda E. Yabut, but excluding the heirs of Geronimo T. Enriquez) 10 Annex "A-Mobil," Rollo, p. 78. 11 Isaac vs. Mendoza, L-2820, 89 Phil. 279 (1952). 12 L-34998, 49 SCRA 33 (1973). 13 Chaffee vs. Chaffee, 197 Mich. 33, 163 N.W. 879; Grandin vs. Grandin, 49 N.J.L. 508, 9 A. 756, 60 Am. Rep. 642. 14 Vda. de Celis vs. Vda. de la Santa, G.R. No. 5294, 93 Phil. 909, (1953).

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15 De los Reyes vs. Ugarte, L-82, 75 Phil. 505, (1945); Enriquez vs. Padilla, L-782, 77 Phil. 373, (1946). 16 Decision, pp. 4-5, Rollo, pp. 56-57.