600 SUPREMECOURTREPORTSANNOTATED

Advinculavs.Macabata
*
A.C.No.7204.March7,2007.

CYNTHIA ADVINCULA, complainant, vs. ATTY. ERNESTO M.

MACABATA,respondent.

LegalEthics Attorneys Immorality Perhaps morality in our liberal

society today is a far cry from what it used to be, but this permissiveness
notwithstanding, lawyers, as keepers of public faith, are burdened with a
high degree of social responsibility and, hence, must handle their personal
affairs with greater caution.Simple as the facts of the case may be, the
mannerbywhichwedealwithrespondentsactuationsshallhavearippling
effect on how the standard norms of our legal practitioners should be
defined.Perhapsmoralityinourliberalsocietytodayisafarcryfromwhat
it used to be. This permissiveness notwithstanding, lawyers, as keepers of
public faith, are burdened with a high degree of social responsibility and,
hence,musthandletheirpersonalaffairswithgreatercaution.

SameSameSameTheexaltedpositionsoflawyersasofficersofthe
courtdemandnolessthanthehighestdegreeofmorality.Itisthebounden
dutyoflawyerstoadhereunwaveringlytothehigheststandardsofmorality.
The legal profession exacts from its members nothing less. Lawyers are
called upon to safeguard the integrity of the Bar, free from misdeeds and
acts constitutive of malpractice. Their exalted positions as officers of the
court demand no less than the highest degree of morality. We explained in
Barrientos v. Daarol, 218 SCRA 30 (1993) 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. Lawyers are expected to abide
by the tenets of morality, not only upon admission to the Bar but also
throughouttheirlegalcareer,inordertomaintaintheirgoodstandinginthis
exclusive and honored fraternity. They may be suspended from the practice
of law or disbarred for any misconduct, even if it pertains to his private
activities,aslongasitshowshimtobewantinginmoralcharacter,honesty,
probityorgooddemeanor.

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 *THIRDDIVISION.

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VOL.517,MARCH7,2007 601

Advinculavs.Macabata

Same Same Same Words and Phrases Good moral character is

definedaswhatapersonreallyis,asdistinguishedfromgoodreputation,or
fromtheopiniongenerallyentertainedofhim,ortheestimateinwhichheis
heldbythepublicintheplacewhereheisknown.InBarMatterNo.1154,
431SCRA146(2004),goodmoralcharacterwasdefinedaswhataperson
really is, as distinguished from good reputation, or from the opinion
generallyentertainedofhim,ortheestimateinwhichheisheldbythepublic
intheplacewhereheisknown.Moralcharacterisnotasubjectivetermbut
one which corresponds to objective reality. It should be noted that the
requirement of good moral character has four ostensible purposes, namely:
(1) to protect the public (2) to protect the public image of lawyers (3) to
protect prospective clients and (4) to protect errant lawyers from
themselves.

SameSameSameIt is difficult to state with precision and to fix an

inflexiblestandardastowhatisgrosslyimmoralconductortospecifythe
moral delinquency and obliquity which render a lawyer unworthy of
continuingasamemberofthebartheruleimpliesthatwhatappearstobe
unconventional behavior to the straightlaced may not be the immoral
conductthatwarrantsdisbarment.Itisdifficulttostatewithprecisionand
to fix an inflexible standard as to what is grossly immoral conduct or to
specifythemoraldelinquencyandobliquitywhichrenderalawyerunworthy
ofcontinuingasamemberofthebar.Theruleimpliesthatwhatappearsto
be unconventional behavior to the straightlaced may not be the immoral
conduct that warrants disbarment. In Zaguirre v. Castillo, 398 SCRA 658
(2003), we reiterated the definition of immoral conduct, as such conduct
which is so willful, flagrant, or shameless as to show indifference to the
opinion of good and respectable members of the community. Furthermore,
forsuchconducttowarrantdisciplinaryaction,thesamemustnotsimplybe
immoral, but grossly immoral. It must be so corrupt as to constitute a
criminal act, or so unprincipled as to be reprehensible to a high degree or
committedundersuchscandalousorrevoltingcircumstancesastoshockthe
commonsenseofdecency.

SameSameSameWhiletheactofrespondentinturningtheheadof
complainant towards him and kissing her on the lips are distasteful, such
act, even if considered offensive and undesirable, cannot be considered
grosslyimmoral.Immorality has not been confined to sexual matters, but
includesconductinconsistentwith
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602 SUPREMECOURTREPORTSANNOTATED

Advinculavs.Macabata

rectitude,orindicativeofcorruption,indecency,depravityanddissoluteness
or is willful, flagrant, or shameless conduct showing moral indifference to
opinions of respectable members of the community, and an inconsiderate
attitude toward good order and public welfare. Guided by the definitions
above, we perceived acts of kissing or besobeso on the cheeks as mere
gestures of friendship and camaraderie, forms of greetings, casual and
customary. The acts of respondent, though, in turning the head of
complainant towards him and kissing her on the lips are distasteful.
However, such act, even if considered offensive and undesirable, cannot be
consideredgrosslyimmoral.

Same Same Same Complainants bare allegation that respondent

madeuseandtookadvantageofhispositionasalawyertolurehertoagree
tohavesexualrelationswithhimdeservesnocreditcomplainantmiserably
failed to comply with the burden of proof required of her.Complainants
bareallegationthatrespondentmadeuseandtookadvantageofhisposition
as a lawyer to lure her to agree to have sexual relations with him, deserves
no credit. The burden of proof rests on the complainant, and she must
establish the case against the respondent by clear, convincing and
satisfactoryproof,disclosingacasethatisfreefromdoubtastocompelthe
exercisebytheCourtofitsdisciplinarypower.Thus,theadagethathewho
asserts not he who denies, must prove. As a basic rule in evidence, the
burden of proof lies on the party who makes the allegationsei incumbit
probation,quidecit,nonquinegatcumperrerumnaturamfactumnegantis
probation nulla sit. In the case at bar, complainant miserably failed to
complywiththeburdenofproofrequiredofher.Amerechargeorallegation
ofwrongdoingdoesnotsuffice.Accusationisnotsynonymouswithguilt.

SameSameSameWhile it is discretionary upon the Supreme Court

to impose a particular sanction that it may deem proper against an erring
lawyer, it should neither be arbitrary and despotic nor motivated by
personal animosity or prejudice, but should ever be controlled by the
imperative need to scrupulously guard the purity and independence of the
bar and to exact from the lawyer strict compliance with his duties to the
court,tohisclient,tohisbrethrenintheprofessionandtothepublic.The
questionastowhatdisciplinarysanctionshouldbeimposedagainstalawyer
found guilty of misconduct requires consideration of a number of factors.
When deciding upon the appropriate sanction, the Court must consider that
theprimarypurposesofdisciplinaryproceedingsaretoprotectthepub
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Advinculavs.Macabata

lic to foster public confidence in the Bar to preserve the integrity of the
professionandtodeterotherlawyersfromsimilarmisconduct.Disciplinary
proceedings are means of protecting the administration of justice by
requiring those who carry out this important function to be competent,
honorable and reliable men in whom courts and clients may repose
confidence. While it is discretionary upon the Court to impose a particular
sanction that it may deem proper against an erring lawyer, it should neither
be arbitrary and despotic nor motivated by personal animosity or prejudice,
but should ever be controlled by the imperative need to scrupulously guard
the purity and independence of the bar and to exact from the lawyer strict
compliance with his duties to the court, to his client, to his brethren in the
professionandtothepublic.

Same Same Same Only those acts which cause loss of moral
character should merit disbarment or suspension, while those acts which
neitheraffectnorerodethemoralcharacterofthelawyershouldonlyjustify
a lesser sanction unless they are of such nature and to such extent as to
clearly show the lawyers unfitness to continue in the practice of law
Censureorreprimandisusuallymetedoutforanisolatedactofmisconduct
of a lesser nature.The power to disbar or suspend ought always to be
exercised on the preservative and not on the vindictive principle, with great
caution and only for the most weighty reasons and only on clear cases of
misconductwhichseriouslyaffectthestandingandcharacterofthelawyeras
anofficerofthecourtandmemberoftheBar.Onlythoseactswhichcause
loss of moral character should merit disbarment or suspension, while those
actswhichneitheraffectnorerodethemoralcharacterofthelawyershould
only justify a lesser sanction unless they are of such nature and to such
extentastoclearlyshowthelawyersunfitnesstocontinueinthepracticeof
law.Thedubiouscharacteroftheactchargedaswellasthemotivationwhich
induced the lawyer to commit it must be clearly demonstrated before
suspension or disbarment is meted out. The mitigating or aggravating
circumstances that attended the commission of the offense should also be
considered.Censureorreprimandisusuallymetedoutforanisolatedactof
misconduct of a lesser nature. It is also imposed for some minor infraction
of the lawyers duty to the court or the client. In the Matter of Darell
Adams,428N.E.2d786(Ind.1981),alawyerwaspubliclyreprimandedfor
grabbing a female client, kissing her, and raising her blouse which
constitutedillegalconductinvolvingmoral

604
604 SUPREMECOURTREPORTSANNOTATED

Advinculavs.Macabata

turpitude and conduct which adversely reflected on his fitness to practice

law.

ADMINISTRATIVECASEintheSupremeCourt.Disbarment.
ThefactsarestatedintheresolutionoftheCourt.

RESOLUTION

CHICONAZARIO,J.:
1
BeforeUsisacomplaint fordisbarmentfiledbyCynthiaAdvincula
against respondent Atty. Ernesto M. Macabata, charging the latter
withGrossImmorality.
Complainantallegedthefollowing:

Sometimeon1stweekofDecember2004complainant[CynthiaAdvincula]
seek the legal advice of the respondent [Atty. Macabata], regarding her
collectibles from Queensway Travel and Tours. As promised, he sent
DemandLetterdatedDecember11,2004(copyattachedasAnnexI)tothe
concernedparties.
OnFebruary10,2005,met(sic)atZenshoRestaurantinTomasMorato,
Quezon City to discuss the possibility of filing the complaint against
Queensway Travel and Tours because they did not settle their accounts as
demanded. After the dinner, respondent sent complainant home and while
sheisabouttostepoutofthecar,respondenthold(sic)herarmandkissed
heronthecheekandembracedherverytightly.
Again, on March 6, 2005, at about past 10:00 in the morning, she met
respondentatStarbuckscoffeeshopinWestAvenue,QuezonCitytofinalize
thedraftofthecomplainttobefiledinCourt.Afterthemeeting,respondent
offered again a ride, which he usually did every time they met. Along the
way,complainantwaswandering(sic) why she felt so sleepy where in fact
she just got up from bed a few hours ago. At along Roosevelt Avenue
immediatelyaftercornerofFelipeSt.,inSanFranciscoDelMonte,Quezon
Citywhenshewasalmostrestlessrespondentstoppedhiscarandforcefully
hold(sic)

_______________

1Rollo,pp.12.

605

VOL.517,MARCH7,2007 605
 Advinculavs.Macabata

her face and kissed her lips while the other hand was holding her breast.
Complainant even in a state of shocked (sic) succeeded in resisting his
criminalattemptandimmediatelymanage(sic)togo(sic)outofthecar.
In the late afternoon, complainant sent a text message to respondent
informing him that she decided to refer the case with another lawyer and
needs (sic) to get back the case folder from him. The communications
transpiredwasrecordedinhercellularphoneandreadasfollows:
Sentbycomplainant forgetthecase.Idecidedtoreferitwithotherlawyer

at5:33:46pm

Repliedby doesthismeanIcannotcuanymore
respondent
at6:16:11pm
(DoesthismeanIcannotseeyouanymore)
Sentbycomplainant Ifeelbad.Icantexpectthatuwilltakeadvantageofthe
situation.
at6:17:59pm
Followupmessage wrongtokissagirlespeciallyinthelipsifyoudonthave
relationshipwithher.
Sentbycomplainant
at6:29:30pm
Repliedby Imverisri.Itsnottkingadvantageofthesituation,2putit
respondent rightlyitsanexpressionoffeeling.Ssri(Imverysorry.Its
at6:32:43pm nottakingadvantageofthesituation,toputitrightlyitisan
expressionoffeeling)
Followupmessage Imssri.Ilnotdoitagain.WilustilcmesIcanshowumy
byrespondentat sincerity(Imsosorry.Illnotdoitagain.Willyoustillsee
6:42:25pm mesoIcanshowyoumysincerity)

Onthefollowingday,March7,2005respondentsentanothermessageto
complainantat3:55:32pmsayingIdontknowwat2dosumay4giveme.
Im realy sri. Puede bati na tyo. (I dont know what to do so you may
forgiveme.Imreallysorry.Puedebatinatayo).

606

606 SUPREMECOURTREPORTSANNOTATED
Advinculavs.Macabata

Respondent replied talk to my lawyer in due time. Then another message

wasreceivedbyherat4:06:33pmsayingAnokba.Imreallysri.Pls.Nxt
ime bhave n me. (Ano ka ba. Im really sorry. Please next
2
time behave na
ko),whichisaclearmanifestationofadmissionofguilt.
3
Inhisanswer, respondent admitted that he agreed to provide legal
services to the complainant that he met with complainant on 10
February 2005 and 6 March 2005, to discuss the relevant matters
relativetothecasewhichcomplainantwasintendingtofileagainst
theownersofQueenswayTravelandToursforcollectionofasum
ofmoneythatonbothoccasions,complainantrodewithhiminhis
carwhereheheldandkissedcomplainantonthelipsastheformer
offered her lips to him and, that the corner of Cooper Street and
Roosevelt Avenue, where he dropped off the complainant, was a
busystreetteemingwithpeople,thus,itwouldhavebeenimpossible
tocommittheactsimputedtohim.
By way of defense, respondent further elucidated that: 1) there
wasacriminalcaseforActsofLasciviousnessfiledbycomplainant
againstrespondentpendingbeforetheOfficeoftheCityProsecutor
in Quezon City 2) the legal name of complainant is Cynthia
Advincula Toriana since she remains married to a certain Jinky
Torianabecausethecivilcaseforthenullificationoftheirmarriage
was archived pursuant to the Order dated 6 December 2000 issued
bytheRegionalTrialCourtofMaburao,OccidentalMindoro3)the
complainant was living with a man not her husband and 4) the
complainantneverbotheredtodiscussrespondentsfeesanditwas
respondentwhoalwayspaidfortheirbillseverytimetheymetand
ateatarestaurant.
AhearingwasconductedbytheCommissiononBarDiscipline
of the Integrated Bar of the Philippines (IBP) at the IBP Building,
OrtigasCenter,PasigCity,on26July2005.

_______________

2Id.

3Id.,atpp.1320.

607

VOL.517,MARCH7,2007 607
Advinculavs.Macabata

On 30 September 2005, Investigating Commissioner4

Dennis A.B.
Funa submitted his Report and Recommendation, recommending
the imposition of the penalty of one (1) month suspension on
respondentforviolationoftheCodeofProfessionalResponsibility.
Thereafter,theIBPpassedResolutionNo.XVII2006117dated
20 March 2006, approving and adopting, with modification, the
recommendationoftheInvestigatingCommissioner,thus:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and

APPROVED, with modification, the Report and Recommendation of the
Investigating Commissioner of the aboveentitled case, herein made part of
this Resolution as Annex A and, finding the recommendation fully
supported by the evidence on record and the applicable laws and rules, and
considering the behavior of Respondent went beyond the norms of conduct
required of a lawyer when dealing with or relating with a client, Atty.
ErnestoA.MacabataisSUSPENDEDfromthepracticeoflawforthree(3)
5
months.

The issue to be resolved in this case is: whether respondent

committedactsthataregrosslyimmoralorwhichconstituteserious
moral depravity that would warrant his disbarment or suspension
fromthepracticeoflaw.
Simpleasthefactsofthecasemaybe,themannerbywhichwe
dealwithrespondentsactuationsshallhavearipplingeffectonhow
the standard norms of our legal practitioners should be defined.
Perhapsmoralityinourliberalsocietytodayisafarcryfromwhatit
usedtobe.Thispermissivenessnotwithstanding,lawyers,askeepers
of public faith, are burdened with a high degree of social
responsibility and, hence, must handle their personal affairs with
greatercaution.
TheCodeofProfessionalResponsibilityprovides:

_______________

4Id.,atpp.149155.

5Id.,atp.148.

608

608 SUPREMECOURTREPORTSANNOTATED
Advinculavs.Macabata

CANONIxxx
Rule1.01Alawyershallnotengageinunlawful,dishonest,immoralor
deceitfulconduct.
CANON 7A lawyer shall at all times uphold the integrity and dignity
ofthelegalprofessionandsupporttheactivitiesoftheIntegratedBar.
xxxx
Rule 7.03A lawyer shall not engage in conduct that adversely reflects
onhisfitnesstopracticelaw,norshallhe,whetherinpublicorprivatelife,
behaveinascandalousmannertothediscreditofthelegalprofession.

As may be gleaned from above, the Code of Professional

Responsibility forbids lawyers from engaging in unlawful,
dishonest,immoralordeceitfulconduct.
Lawyershavebeenrepeatedlyremindedthattheirpossessionof
good moral character is a continuing condition to preserve their
membershipintheBaringoodstanding.Thecontinuedpossession
ofgoodmoralcharacterisarequisiteconditionforremaininginthe
6 7
practiceoflaw. InAldovinov.Pujalte,Jr., weemphasizedthat:

This Court has been exacting in its demand for integrity and good moral
characterofmembersoftheBar.Theyareexpectedatalltimestoupholdthe
integrity and dignity of the legal profession and refrain from any act or
omissionwhichmightlessenthetrustandconfidencereposedbythepublic
inthefidelity,honesty,andintegrityofthelegalprofession.Membershipin
thelegalprofessionisaprivilege.Andwheneveritismadetoappearthatan
attorney is no longer worthy of the trust and confidence of the public, it
becomesnotonlytherightbutalsothedutyofthisCourt,whichmadehim
oneofitsofficersandgavehimtheprivilegeofministeringwithinitsBar,
towithdrawtheprivilege.

_______________

6Mortelv.Aspiras100Phil.586,592(1956)Cordovav.Cordova,A.C.No.3249,

29November1989,179SCRA680,683.
7A.C.No.5082,17February2004,423SCRA135,140141.

609

VOL.517,MARCH7,2007 609
Advinculavs.Macabata

It is the bounden duty of lawyers to adhere unwaveringly to the

highest standards of morality. The legal profession exacts from its
members nothing less. Lawyers are called upon to safeguard the
integrity of the Bar, free from misdeeds and acts constitutive of
malpractice.Theirexaltedpositionsasofficersofthecourtdemand
8
no less than the highest
9
degree of morality. We explained in
Barrientosv.Daarol that,asofficersofthecourt,lawyersmustnot
onlyinfactbeofgoodmoralcharacterbutmustalsobeseentobe
of good moral character and leading lives in accordance with the
highestmoralstandardsofthecommunity.
Lawyersareexpectedtoabidebythetenetsofmorality,notonly
uponadmissiontotheBarbutalsothroughouttheirlegalcareer,in
ordertomaintaintheirgoodstandinginthisexclusiveandhonored
fraternity. They may be suspended from the practice of law or
disbarred for any misconduct, even if it pertains to his private
activities,aslongasitshowshimtobewantinginmoralcharacter,
10
honesty,probityorgooddemeanor.
11
InBarMatterNo.1154, goodmoralcharacter was defined as
what a person really is, as distinguished from good reputation, or
from the opinion generally entertained of him, or the estimate in
whichheisheldbythepublicintheplacewhereheisknown.Moral
character is not a subjective term but one which corresponds to
objectivereality.
It shouldbenotedthat the requirement of good moral character
hasfourostensiblepurposes,namely:(1)toprotectthepublic(2)to
protectthepublicimageoflawyers(3)to
_______________

8Uiv.Bonifacio,388Phil.691,708333SCRA38,53(2000).

9A.C.No.1512,29January1993,218SCRA30,40.

10RuralBankofSilay,Inc.v.Pilla,403Phil.1,9350SCRA138,145(2001).

11IntheMatteroftheDisqualificationofBarExamineeHaronS.Melinginthe

2002 Bar Examinations and for Disciplinary Action as Member of the Philippine
ShariaBar,B.M.No.1154,8June2004,431SCRA146.

610

610 SUPREMECOURTREPORTSANNOTATED
Advinculavs.Macabata

protect prospective
12
clients and (4) to protect errant lawyers from
themselves.
In the case at bar, respondent admitted kissing complainant on
thelips. 13
InhisAnswer, respondentconfessed,thus:

27.Whenshewasabouttogetoffthecar,IsaidcanIkissyougoodnight.
She offered her left cheek and I kissed it and with my left hand slightly
pulledherrightfacetowardsmeandkissedhergentlyonthelips.Wesaid
goodnightandshegotoffthecar.
xxxx
35. When I stopped my car I said okay. I saw her offered (sic) her left
cheekandIlightlykisseditandwithmyrighthandslightlypulledherright
cheektowardsmeandplant(sic)alightkissonherlips.Therewasnoforce
used. No intimidation made, no lewd designs displayed. No breast holding
was done. Everything happened very spontaneously with no reaction from
herexceptsayingsexualharassment.

During the hearing held on 26 July 2005 at the 3rd floor, IBP
Building, Dona Julia Vargas Avenue, Ortigas City, respondent
candidlyrecalledthefollowingevents:

ATTY.MACABATA:
ThattimeinFebruary,wemetIfetchedherIshouldsay,
somewherealongthecornerofEdsaandKamuningbecauseitwas
thenrainingsowearetextingeachother.SoIparkedmycar
somewherealongthecornerofEdsaandKamuningandIwasthere
abouttentofifteenminutesthenshearrived.AndsoIsaidshe
openedmycarandthenshewentinsidesoIsaid,wouldyoulike
thatwehaveaJapanesedinner?Andshesaidyes,okay.SoI
broughthertoZenshowhichisalongTomasMorato.Whenwe
werethere,wediscussedabouthercase,weorderedfoodandthen
alittlewhileItoldher,woulditbe

_______________
 12Dantesv.Dantes,A.C.No.6486,22September2004,438SCRA582,589.

13Rollo,pp.27,35.

611

VOL.517,MARCH7,2007 611
Advinculavs.Macabata

okayforyouofI(sic)orderwine?ShesaidyessoIordered
twoglassesofredwine.Afterthat,afterdiscussingmattersabout
hercase,soIsaiditsabout9:00orbeyondthattimealready,so
Isaidokay,letsgo.SowhenIsaidletsgosoIstoodupandthen
Iwenttothecar.Iwentaheadofmycarandshefollowedmethen
sherodeon(sic)it.SoItoldherwhereto?Shetoldmejustdrop
meatthesameplacewhereyouhavebeendroppingmeforthelast
meetingsthatwehadandthatwasatthecornerofMoratoand
RooseveltAvenue.So,beforeshewentdown,ItoldhercanIkiss
yougoodnight?SheofferedherleftcheekandIkisseditandwith
theslightuseofmyrighthand,I...shouldIsaytiltedherface
towardsmeandwhenshesalreadyfacingmeIlightlykissed
heronthelips.AndthenIsaidgoodnight.Shewentdownthe
car,thatsit.
COMM.FUNA:
February10iyan.
xxxx
ATTY.MACABATA:
Okay.AfterthatwerethroughsoIsaidletsgobecauseIhavean
appointment.Sowewentout,wewentinsidemycarandIsaid
whereto?Sameplace,shesaid,sothenatthesamecorner.So
beforeshewentdown,beforesheopenedthedoorofthecar,Isaw
herofferedherleftcheek.SoIkissedheragain.
COMM.FUNA:
Pardon?
ATTY.MACABATA:
Isawherofferedherleftcheeklikethat,soIkissedheragainand
thenwiththeuseofmylefthand,pushedalittlebitherface
andthenkissedheragainsoftlyonthelipsandthatsit.xx
14
x. (Emphasessupplied.)

Itisdifficulttostatewithprecisionandtofixaninflexiblestandard
as to what is grossly immoral conduct or to specify the moral
delinquencyandobliquitywhichrenderalawyer

_______________

14TSN,26July2005,pp.1824.

612
612 SUPREMECOURTREPORTSANNOTATED
Advinculavs.Macabata

unworthyofcontinuingasamemberofthebar.Theruleimpliesthat
what appears to be unconventional behavior to the straightlaced
15
maynotbetheimmoralconductthatwarrantsdisbarment.
16
InZaguirrev.Castillo, wereiteratedthedefinitionofimmoral
conduct,assuchconductwhichissowillful,flagrant,orshameless
as to show indifference to the opinion of good and respectable
members of the community. Furthermore, for such conduct to
warrant disciplinary action, the same must not simply be immoral,
butgrosslyimmoral.Itmustbesocorruptastoconstituteacriminal
act, or so unprincipled as to be reprehensible to a high degree or
committed under such scandalous or revolting circumstances as to
shockthecommonsenseofdecency.
ThefollowingcaseswereconsideredbythisCourtasconstitutive
ofgrosslyimmoralconduct:
17
InToledov.Toledo, alawyerwasdisbarredfromthepracticeof
law,whenheabandonedhislawfulwifeandcohabitedwithanother
womanwhohadbornehimachild. 18
In Obusan v. Obusan, Jr., a lawyer was disbarred after
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
expectedandrequiredofamemberofthebar.
19
In Dantes v. Dantes, respondents act of engaging in illicit
relationshipswithtwodifferentwomenduringthesubsistenceofhis
marriage to the complainant constitutes grossly immoral conduct
warranting the imposition of appropriate sanctions. Complainants
testimony,takeninconjunction

_______________

15Uiv.Bonifacio,supranote8.

16446Phil.861,867398SCRA658,662(2003).

17117Phil.768,7767SCRA757,765(1963).

18213Phil.437,440128SCRA485,487(1984).

19Supranote12atp.588.

613

VOL.517,MARCH7,2007 613
Advinculavs.Macabata

with the documentary evidence, sufficiently established that

respondent breached the high and exacting moral standards set for
membersofthelawprofession.
20
InDelosReyesv.Aznar, itwasruledthatitwashighlyimmoral
 20
InDelosReyesv.Aznar, itwasruledthatitwashighlyimmoral
ofrespondent,amarriedmanwithchildren,tohavetakenadvantage
of his position as chairman of the college of medicine in asking
complainant, a student in said college, to go with him to Manila
where he had carnal knowledge of her under the threat that she
wouldflankinallhersubjectsincasesherefused.
21
In Cojuangco, Jr. v. Palma, respondent lawyer was disbarred
when he abandoned his lawful wife and three children, lured an
innocentwomanintomarryinghimandmisrepresentedhimselfasa
bachelorsohecouldcontractmarriageinaforeignland.
22
In Macarrubo v. Macarrubo, respondent entered into multiple
marriagesandthenresortedtolegalremediestoseverthem.There,
we ruled that [s]uch pattern of misconduct by respondent
underminestheinstitutionsofmarriageandfamily,institutionsthat
this society looks to for the rearing of our children, for the
developmentofvaluesessentialtothesurvivalandwellbeingofour
communities, and for the strengthening of our nation as a whole.
Assuch,therecanbenootherfatethatawaitsrespondentthanto
bedisbarred. 23
InTucayv.Tucay, respondentcontractedmarriagewithanother
married woman and left complainant with whom he has been
marriedforthirtyyears.Weruledthatsuchactsconstituteagrossly
immoralconductandonlyindicativeofanextremelylowregardfor
the fundamental ethics of his profession, warranting respondents
disbarment.

_______________

20A.C.No.1334,28November1989,179SCRA653,659.

21A.C.No.2474,15September2004,438SCRA306,315.

22A.C.No.6148,27February2004,424SCRA42,5455.

23A.C.No.5170,17November1999,318SCRA229,231.

614

614 SUPREMECOURTREPORTSANNOTATED
Advinculavs.Macabata
24
InVillasantav.Peralta, respondentmarriedcomplainantwhilehis
firstwifewasstillalive,theirmarriagestillvalidandsubsisting.We
heldthattheactofrespondentofcontractingthesecondmarriageis
contrary to honesty, justice, decency and morality. Thus, lacking
thegoodmoralcharacterrequiredbytheRulesofCourt,respondent
wasdisqualifiedfrombeingadmittedtothebar.
25
InCabrerav.Agustin, respondentluredaninnocentwomaninto
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,disbarredfromthepracticeoflaw.
Immoralityhasnotbeenconfinedtosexualmatters,butincludes
conduct inconsistent with rectitude, or indicative of corruption,
indecency, depravity and dissoluteness or is willful, flagrant, or
shameless conduct showing moral indifference to opinions of
respectable members of the community, and 26
an inconsiderate
attitudetowardgoodorderandpublicwelfare.
Guidedbythedefinitionsabove,weperceivedactsofkissingor
besobeso on27
the cheeks as mere gestures of friendship and
camaraderie, formsofgreetings,casualandcustomary.Theactsof
respondent,though,inturningtheheadofcomplainanttowardshim
andkissingheronthelipsaredistasteful.However,suchact,evenif
consideredoffensiveandundesirable,cannotbeconsideredgrossly
immoral.
Complainantsbareallegationthatrespondentmadeuseandtook
advantageofhispositionasalawyertolureherto

_______________

24101Phil.313,314(1957).

25106Phil.256,259(1960).

26Madredijov.Loyao,Jr.,375Phil.1,17316 SCRA 544, 559 (1999) Alfonsov.

Juanson, A.M. No. RTJ92904, 7 December 1993, 228 SCRA 239, 255256, citing
BlacksLawDictionary,6thed.(1990),p.751.
27Atty.Aquinov.JudgeAcosta,429Phil.498,510380SCRA1,9(2002).

615

VOL.517,MARCH7,2007 615
Advinculavs.Macabata

agree to have sexual relations with him, deserves no credit. The

burdenofproofrestsonthecomplainant,andshemustestablishthe
case against
28
the respondent by clear, convincing and satisfactory
proof, disclosing a case that is free from doubt
29
as to compel the
exercisebytheCourtofitsdisciplinarypower. Thus,theadagethat
30
hewhoassertsnothewhodenies,mustprove. Asabasicrulein
evidence, the burden of proof lies on the party who makes the
allegationsei incumbit probation, qui decit, non qui negat cum
perrerumnaturamfactumnegantisprobationnullasit.31Inthecase
at bar, complainant miserably failed to comply with the burden of
proof required of her. A mere charge or allegation of wrongdoing
32
doesnotsuffice.Accusationisnotsynonymouswithguilt.
Moreover,whilerespondentadmittedhavingkissedcomplainant
onthelips,thesamewasnotmotivatedbymalice.Wecometothis
conclusion because right after the complainant expressed her
annoyance at being kissed by the respondent through a cellular
phonetextmessage,respondentimmediatelyextendedanapologyto
complainantalsoviacellularphonetextmessage.Theexchangeof
textmessagesbetweencomplainantandrespondentbearsthisout.
Beitnotedalsothattheincidenthappenedinaplacewherethere
were several people in the vicinity considering that Roosevelt
Avenue is a major jeepney route for 24 hours. If respondent truly
hadmaliciousdesignsoncomplainant,he

_______________

28Angelesv.Figueroa,A.C.No.5050,20September2005,470SCRA186,195.

29Reyesv.Wong,Adm.CaseNo.547,29January1975,63SCRA667,673.

30Angelesv.Figueroa,supranote28.

31UytengsuIIIv.Baduel,Adm.CaseNo.5134,14December2005,477SCRA621,

632.
32Boyboyv.Yabut,Jr.,A.C.No.5225,29April2003,401SCRA622,627.

616

616 SUPREMECOURTREPORTSANNOTATED
Advinculavs.Macabata

could have brought her to a private place or a more remote place

wherehecouldfreelyaccomplishthesame.
Alltold,asshownbytheabovecircumstances,respondentsacts
are not grossly immoral nor highly reprehensible to warrant
disbarmentorsuspension.
Thequestionastowhatdisciplinarysanctionshouldbeimposed
against a lawyer found guilty
33
of misconduct requires consideration
of a number of factors. When deciding upon the appropriate
sanction, the Court must consider that the primary purposes of
disciplinary proceedings are to protect the public to foster public
confidenceintheBartopreservetheintegrityoftheprofessionand
34
to deter other lawyers from similar misconduct. Disciplinary
proceedingsaremeansofprotectingtheadministrationofjusticeby
requiring those who carry out this important function to be
competent, honorable and
35
reliable men in whom courts and clients
mayreposeconfidence. WhileitisdiscretionaryupontheCourtto
impose a particular sanction that it may deem proper against an
erring lawyer, it should neither be arbitrary and despotic nor
motivated by personal animosity or prejudice, but should ever be
controlled by the imperative need to scrupulously guard the purity
and independence of the bar and to exact from the lawyer strict
compliancewithhisdutiestothecourt,tohisclient,tohisbrethren
intheprofessionandtothepublic.
Thepowertodisbarorsuspendoughtalwaystobeexercisedon
the preservative and not on the vindictive principle, with great
caution and only for the most weighty reasons and only on clear
cases of misconduct which seriously affect the standing and
characterofthelawyerasanofficerofthecourt

_______________

33Agpalo,LEGALETHICS(4thEd.,1989),p.445.

34IntheMatterofaMemberoftheBaroftheSupremeCourtofDelawareJoelD.

Tenenbaum,6February2007.
35TingDumaliv.Torres,A.C.No.5161,14April2004,427SCRA108,119.

617

VOL.517,MARCH7,2007 617
Advinculavs.Macabata

andmemberoftheBar.Onlythoseactswhichcauselossofmoral
character should merit disbarment or suspension, while those acts
which neither affect nor erode the moral character of the lawyer
should only justify a lesser sanction unless they are of such nature
and to such extent as to clearly show the lawyers unfitness to
continue in the practice of law. The dubious character of the act
charged as well as the motivation which induced the lawyer to
commit it must be clearly demonstrated before suspension or
disbarment is meted out. The mitigating or aggravating
circumstances that36attended the commission of the offense should
alsobeconsidered.
Censureorreprimandisusuallymetedoutforanisolatedactof
misconduct of a lesser nature. It is also imposed for some 37
minor
infraction of the lawyers 38
duty to the court or the client. In the
Matter of Darell Adams, a lawyer was publicly reprimanded for
grabbing a female client, kissing her, and raising her blouse which
constituted illegal conduct involving moral turpitude and conduct
whichadverselyreflectedonhisfitnesstopracticelaw.
Based on the circumstances of the case as discussed and
considering that this is respondents first offense, reprimand would
suffice.
We laud complainants effort to seek redress for what she
honestly believed to be an affront to her honor. Surely, it was
difficult and agonizing on her part to come out in the open and
accuse her lawyer of gross immoral conduct. However, her own
assessment of the incidents is highly subjective and partial, and
surely needs to be corroborated or supported by more objective
evidence.
WHEREFORE,thecomplaintfordisbarmentagainstrespondent
Atty. Ernesto Macabata, for alleged immorality, is hereby
DISMISSED.However,respondentisherebyREPRI
 _______________

36Id.,atpp.445446.

37Id.

38428N.E.2d786(Ind.1981).

618

618 SUPREMECOURTREPORTSANNOTATED
Advinculavs.Macabata

MANDEDtobemoreprudentandcautiousinhisdealingwithhis
clientswithaSTERNWARNINGthatamoreseveresanctionwill
beimposedonhimforanyrepetitionofthesameorsimilaroffense
inthefuture.
SOORDERED.

YnaresSantiago (Chairperson), AustriaMartinez and

Nachura,JJ.,concur.
Callejo,Sr.,J.,OnLeave.

Complaint for disbarment dismissed, however respondent

reprimandedtobemoreprudentandcautiousinhisdealingwithhis
clientswithsternwarningagainstrepetitionofsimilaroffense.

Notes.By having sexual intercourse with a girl who is only

fifteen(15)yearsold,ajudgeviolatedthetrustreposedonhishigh
office and utterly failed to live up to the noble ideals and strict
standards of morality required of members of the judiciary. (Naval
vs.Panday,275SCRA654[1997])
AmemberoftheBarandofficerofthecourtisnotonlyrequired
torefrainfromadulterousrelationshipsorthekeepingofmistresses
butmustalsosobehavehimselfastoavoidscandalizingthepublic
by creating the belief that he is flouting those moral standards.
(Naragvs.Narag,291SCRA451[1998])

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