EN BANC

GOVERNMENT SERVICE A.M. No. RTJ-04-1831

INSURANCE SYSTEM, (Formerly OCA IPI No. 99-796-RTJ)
Petitioner,
Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
- v e r s u s - CORONA,
CARPIO MORALES,
CALLEJO, SR.,
AZCUNA
TINGA,
CHICO-NAZARIO,
GARCIA and
VELASCO, JR., JJ.

HON. VICENTE A. PACQUING,

Presiding Judge, Branch 28 and
MARIO ANACLETO M. BAEZ, JR.,
Clerk of Court, RTC, San Fernando
City, La Union,
Respondents.
Promulgated:
February 2, 2007
x----------------------------------------------------x

RESOLUTION

CORONA, J.

In 1971, Bengson Commercial Building, Inc. (Bengson) borrowed P4,250,000

from petitioner Government Service Insurance System (GSIS), secured by real
estate and chattel mortgages. When Bengson defaulted in the payment of the
amortizations, petitioner extrajudicially foreclosed the mortgaged properties and
sold them at public auction where it emerged as the highest bidder.

In 1977, Bengson filed an action in the Regional Trial Court (RTC) of San
Fernando, La Union, Branch 26[1] to annul the extrajudicial foreclosure. The trial
court, through Judge Antonio Fineza, declared the foreclosure void and directed
petitioner to restore to Bengson the foreclosed properties, pay damages and costs
of suit.

Petitioner appealed the decision to the Court of Appeals (CA). The CA

affirmed with modification the trial courts decision and remanded the case for
reception of evidence on the costs of suit and determination of the replacement
value of the properties should petitioner fail to return them. The CA decision
became final and executory on February 10, 1988.

When petitioner failed to return the foreclosed properties, the new presiding
judge of Branch 26, respondent Judge Vicente A. Pacquing, ordered it to pay
Bengson the equivalent value of the foreclosed properties. Thereafter, Bengson
moved that it be permitted to present evidence on the costs of suit. On April 6,
1995, the trial court directed petitioner to pay Bengson P31 million as costs of suit.
This order became final on April 24, 1995.

Petitioner filed an urgent omnibus motion with the court a quo stating that
its counsel, Atty. Rogelio Terrado, went on AWOL and never informed it of
respondent judges order.[2] This motion, treated as petition for relief from judgment
by respondent judge, was dismissed on January 16, 1997.[3]
 Petitioner filed a motion for reconsideration (MR) but respondent judge
denied the same on April 23, 1998.

Petitioner then instituted a special civil action for certiorari in the CA

docketed as CA-G.R. SP No. 47669[4] assailing the court a quos denial of its
petition for relief from judgment. The CA, however, dismissed CA-G.R. SP No.
47669 for having been filed out of time as three years had elapsed since the order
awarding Bengson P31 million as costs of suit became final and executory.[5]

Petitioner filed an MR of the above decision and, while it was pending

resolution at the CA, respondent judge, on December 16, 1998, issued an alias writ
of execution ordering petitioner to pay Bengson the P31 million.[6] Pursuant
thereto, respondent Atty. Mario Anacleto M. Baez, acting as sheriff of Branch 26,
executed the writ and levied on petitioners shares of stock in San Miguel
Corporation (SMC) worth P6.2 million. The garnished shares were later sold at
public auction with Bengson as the only bidder.

Aggrieved, petitioner moved to quash the writ on the ground that its funds
and properties were exempt from garnishment, levy and execution under Section
39 of RA 8291.[7] Respondent judge denied the motion stating that only funds and
properties that were necessary to maintain petitioners actuarial solvency, like
contributions of GSIS members, were exempt from garnishment, levy and
execution under RA 8291.[8]

Petitioner filed its MR of the trial courts denial of its motion to quash the
writ but this was rejected as well.
 Via a special civil action for certiorari with an urgent motion for the issuance
of a writ of preliminary injunction and/or restraining order (TRO), petitioner came
to us questioning the garnishment and sale on execution of its SMC shares. The
petition was docketed as G.R. No. 136874.[9]

We referred G.R. No. 136874 to the CA for consideration and adjudication

on the merits. In the CA, it was re-docketed as CA-G.R. SP. No. 51131 and was
consolidated with CA-G.R. SP. No. 47669.[10]

Later, the CA dismissed both petitions.[11]

Petitioner questioned the CAs dismissal of CA-G.R. SP. No. 47669 via a
petition for review in this Court docketed as G.R. No. 137448,[12] the ultimate issue
of which was the existence of grounds for relief from the P31 million costs of suit
judgment by respondent judge.

Later, petitioner filed another case, a special civil action for certiorari in this
Court, this time contesting the CAs dismissal of its petition in CA-G.R. No. 51131.
Docketed as G.R. No. 141454,[13] the petition ascribed grave abuse of discretion on
the part of the CA for upholding the trial courts issuance of the alias writ of
execution and the subsequent garnishment and sale of its shares in SMC.

Petitioner also filed this administrative complaint[14] against respondents for

ignorance of the law, bias and partiality, and for violation of RA 8291. In its
complaint, petitioner alleged:
In fine, [respondent judge] refused to take cognizance of [Section 39, RA
8291]. He refused to await an authoritative and definitive resolution of the issues
[on the exemption of GSISs funds and properties] from execution or the issue of
whether GSIS is entitled to a relief from judgment of his [P]31 million peso
cost[s] of suit. [H]e was in a hurry, as Bengson, to execute the P31 million costs
of suit[O]n the other hand, Sheriff Mario Anacleto M. Baez, seemed to have the
 same objective when he refused to take heed of [GSISs request] to hold in
abeyance the execution sale on the basis of Section 39 (RA 8291).

The foregoing only shows [respondent judges] deliberate disregard of the

express provisions of [RA 8291], specifically Section 39and his bias, given his
exorbitant award for cost[s] of suit, bereft, as it is, of any legal basis. It evidently
reveals a malicious scheme that seriously undermines the very integrity and
impartiality of his court.

The same can be said of the acts of Sheriff Baez in garnishing and selling
[GSISs shares of stock in SMC] to Bengson, characterized by an unusual
swiftness and in clear disregard of the express provision of Section 39, RA
8291[15]

We referred the complaint to the Office of the Court Administrator (OCA)

for investigation, report and recommendation. In its report[16] to the Court, the
OCA found nothing in the records to support petitioners accusations against both
respondents. According to the OCA, even assuming that respondent judge erred in
interpreting RA 8291, such error did not constitute gross ignorance of the law. It
added that the records also failed to prove malice, fraud, dishonesty or bad faith on
the part of respondent judge in issuing the assailed alias writ of execution.
On petitioners allegations against respondent Atty. Baez, the OCA likewise
found no reason to hold him liable for failing to defer the execution of the writ.

The OCA then recommended the dismissal of petitioners complaint against

respondents.[17]
On petitioners motion, we referred the case to the CA for further
investigation. It was assigned to Associate Justice Roberto A. Barrios, who acted
as investigating officer. Before a hearing on the case could be conducted,
respondent judge died.[18] The hearing proceeded but we withheld his benefits
pending the completion of the investigation of his case by Justice Barrios.
 Subsequently, Justice Barrios submitted his report [19] to us agreeing with
OCAs findings that petitioners complaint against respondents was unfounded.
According to Justice Barrios:
Assuming for the nonce that [respondent judge] erred in issuing the Order
of 16 December 1998 without awaiting the resolution of [petitioners motion for
reconsideration], and in holding that [its] properties are not exempt from
execution, these would not be errors that are gross and patent, or done
maliciously, deliberately or in evident bad faith. [Petitioner] has not presented
proof to the contrary, which with the factual milieu would call for administrative
sanctions against [respondent judge]. As a matter of public policy, the acts of the
judge in his official capacity are not subject to disciplinary action, even though
such acts are erroneous. Good faith and absence of malice, corrupt motives or
improper considerations are sufficient defenses in which a judge charged with
ignorance of [the] law can find refuge.[20]

He added that the filing of the administrative charges against respondents

was premature because this Court at that time had yet to decide G.R. No. 137448
and G.R. No. 141454. He thus recommended the dismissal of the administrative
charges against respondents.

On January 31, 2002,[21] we handed down our decision in the above cases
nullifying the CAs resolutions dismissing G.R. Nos. 51131[22] and 47669.[23] In the
same decision, we set aside respondent judges January 16, 1997 order dismissing
petitioners petition for relief from judgment and his April 23, 1998 order denying
the MR.[24]
Notwithstanding the nullification of respondent judges orders, we are
adopting the findings and recommendations of the OCA and Justice Barrios.

For a judge to be administratively liable for ignorance of the law, the acts
complained of must be gross or patent.[25] To constitute gross ignorance of the law,
such acts must not only be contrary to existing law and jurisprudence but also
motivated by bad faith, fraud, malice or dishonesty. [26] That certainly does not
appear to be the case here as petitioners complaint was spawned merely by the
honest divergence of opinion between petitioner and respondent judge as to the
legal issues and applicable laws involved.[27]Petitioner also proffered no evidence
that respondent judges acts were imbued with malice or bad faith.

In the same vein, we hold that respondent judge was neither biased nor
partial against petitioner when he issued the alias writ of execution. Petitioners
assertion that respondent judge precipitately issued the alias writ is not supported
by the records. On the contrary, the records indicate that the writ was issued more
than three years from the finality of the order directing petitioner to pay
Bengson P31 million as costs of suit. Its issuance was not all tainted with undue
haste. In the exercise of his judicial discretion, respondent judge believed that the
issuance of the alias writ had become forthwith a matter of right following the
finality of said order. The rule is that once a judgment becomes final, the winning
party is entitled to a writ of execution and the issuance thereof becomes a courts
ministerial duty.[28]

Assuming ex gratia argumenti that respondent judge erred in issuing the

alias writ, his act would still not merit administrative sanction absent malice or bad
faith.[29] Bad faith does not simply connote poor or flawed judgment; it imports a
dishonest purpose, moral obliquity or conscious doing of a wrong.

Furthermore, for allegations of bias and partiality to stand, petitioner should

have demonstrated that respondent judges decisions and orders came from
extrajudicial sources or from some bases other than what he had learned from his
study of the case.[30] Decisions formed in the course of judicial proceedings,
although they appear erroneous, are not necessarily partial as long as they are
culled from the arguments and evidence of the parties.[31] The party who alleges
partiality must prove it with clear and convincing evidence. Petitioner failed in that
aspect.

Interestingly, this Court, in our decision in G.R. Nos. 137448 and 141454,
nullified the orders of respondent judge only to give petitioner another chance to
seek redress from the gross negligence and mistake of its then counsel, Atty.
Terrado. We did not at all declare respondent judges orders as erroneous or tainted
with malice or bad faith. In our decision, we said:
It is readily apparent that part of [petitioners] predicament stemmed from
the negligence or mistake, to put it mildly, of its former counsels.

Indeed, it is undisputed that despite ample opportunity, [petitioners]

counsel, Atty. Rogelio Terrado, did not rebut BENGSONs evidence on the costs
of suit or, at the very least, verify the schedule of costs and cross-examine
BENGSONs witnesses. Much worse, he allowed the 6 April 1995 Order awarding
BENGSON P31 million costs of suit to attain finality by not filing a motion for
reconsideration with the trial court or a petition with the Court of Appeals.
Instead, he went AWOL without informing petitioner of the said Order. These
acts constituted gross negligence, if not fraud, and resulted in the deprivation of
petitioner of an opportunity to move to reconsider or appeal the adverse order.

[A]s a general rule, the negligence or mistake of a counsel binds the client
for otherwise there would be never be no end to a suit so long as new counsel
could be employed who could allege and show that the former counsel had not
been sufficiently diligent, experienced, or learned. But if under the circumstances
of the case, the rule deserts its proper office as an aid to justice and becomes a
great hindrance and chief enemy, its rigors must be relaxed to admit exceptions
thereto and prevent miscarriage of justice. In other words, the court has the power
to except a particular case from the operation of the rule whenever the purposes of
justice require it.

Moreover, the filing of an administrative complaint is not the proper remedy

for correcting the actions of a judge perceived to have gone beyond the norms of
propriety, where a sufficient remedy exists.[32] The actions against judges should
not be considered as complementary or suppletory to, or substitute for, the judicial
remedies which can be availed of by a party in a case.[33]

Regarding the accusations against respondent Atty. Baez, the Court finds no
basis to hold him liable for executing the assailed writ at that time. Undeniably, the
most difficult phase of any proceeding is the execution of judgment.[34] Charged
with this task, he must act with considerable dispatch to administer justice.
Otherwise, a judgment, if not executed at once, would just be an empty victory on
the part of the prevailing party.[35] In executing the writ, Atty. Baez merely carried
out a ministerial duty. He had no discretion to implement the writ or not.

WHEREFORE, the complaint for ignorance of the law, bias and partiality,
and violation of RA 8291 against the late Judge Vicente A. Pacquing and Atty.
Mario Anacleto M. Baez, is hereby DISMISSED.

Let a copy of this resolution be forwarded to the Office of the Court

Administrator so that the benefits due the late respondent judge can be promptly
released to his heirs, unless there exists some other lawful cause to withhold the
same.

SO ORDERED.

RENATO C. CORONA
Associate Justice

WE CONCUR:
 REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO

Associate Justice Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ CONCHITA CARPIO MORALES

Associate Justice Associate Justice

ROMEO J. CALLEJO, SR. ADOLFO S. AZCUNA

Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

CANCIO C. GARCIA PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

[1]
Docketed as Civil Case No. 2794.
[2]
Atty. Terrado was later on charged with gross misconduct for his alleged willful and deliberate act of not filing
the appropriate motion or appeal from the trial courts order directing GSIS to pay Bengson P31 million as
cots of suit.
[3]
The trial court denied the petition for relief from judgment on the following grounds: 1) GSIS was bound by the
negligence of its counsel; 2) to grant the petition would be to revive GSISs right to appeal which it
irretrievably lost through gross inaction; 3) equity or fairness could not be invoked as valid grounds for
petition for relief from judgment; 4) res judicata had already set in; 5) no extrinsic or collateral fraud was
adduced by GSIS, and; 6) the order for GSIS to pay Bengson P31 million costs of suit already attained
finality. Annex F, Records.
[4]
Government Service Insurance System v. Bengson Commercial Buildings, Inc. and the Hon. Judge Vicente A.
Pacquing.
[5]
The petition was also denied for lack of proper verification and certification against forum-shopping and for
failure to attach a certified copy of the assailed decision of the RTC dated January 16, 1997.
[6]
Rollo, pp. 127-128.
[7]
The GSIS Act of 1997.
Sec. 39. Exemption from Tax, Legal Process and Lien.-
xxx
The funds and/or properties referred to herein as well as the benefits, sums or monies corresponding to the benefits
under this Act shall be exempt from attachment, garnishment, execution, levy or other processes issued by
the courts, quasi-judicial agencies or administrative bodies including Commission on Audit (COA)
disallowances and from all financial obligations of the members, including pecuniary accountability arising
from or caused or occasioned by his exercise or performance of his official functions or duties, or incurred
relative to or in connection with his position or work except when his monetary liability, contractual or
otherwise, is in favor of the GSIS.
[8]
Rollo, pp. 30-31.
[9]
Government Service Insurance System v. Honorable Judge Vicente A. Pacquing et al.
[10]
Supra, at 3.
[11]
The CA dismissed the petitions for forum-shopping. CA-G.R. No. 47669 was also dismissed because it was not
accompanied with a clear legible copy or certified copy of the assailed judgment.
[12]
Government Service Insurance System v. Bengson Commercial Buildings, Inc.
[13]
Government Service Insurance System Incorporated v. Court of Appeals et al.
[14]
The SC ordered the consolidation of G.R. No. 137448 and G.R. No. 141454. GSIS had these two pending
petitions before this Court when the administrative case was filed against respondents.
[15]
Complaint, rollo, pp. 1-9.
[16]
Id., pp. 75-85.
[17]
Id., p. 85.
[18]
Judge Pacquing died on August 17, 2000 of coronary thrombosis per certificate of death submitted by his heirs to
the SC. Rollo, p. 91.
[19]
The report was undated.
[20]
Records, p. 9.
[21]
426 Phil. 111 (2002).
[22]
Petition for review contesting the trial courts dismissal of petitioners petition for relief from judgment. Supra.
[23]
Special civil action for certiorari questioning the trial courts dismissal of its motion to quash the alias writ of
execution. Supra.
[24]
The dispositive portion of the decision read:
WHEREFORE, the petitions at bar are GRANTED the 16 January 1997 Decision and 23 April
1998 Order of the Regional Trial Court, Branch 26, San Fernando, La Union, are hereby REVERSED and
SET ASIDE. The cases are hereby ordered remanded to the trial court, which shall then proceed to hear and
determine the case as if a timely motion for new trial or reconsideration has been granted by it. Since the
issues raised in C.A.-G.R. SP No. 51131 are irretrievably linked with, or are but a consequence of the 6
April 1995 Order of the trial court, the case shall be suspended or held in abeyance until after the
aforementioned proceedings in the trial court shall have been finally resolved...
 Today is Sunday, August 19, 2018

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

A.C. No. 7204 March 7, 2007

CYNTHIA ADVINCULA, Complainant,

vs.
ATTY. ERNESTO M. MACABATA, Respondent.

RESOLUTION

CHICO-NAZARIO, J.:

Before Us is a complaint1 for disbarment filed by Cynthia Advincula against respondent Atty. Ernesto M. Macabata, charging the
latter with Gross Immorality.

Complainant alleged the following:

Sometime on 1st week of December 2004 complainant [Cynthia Advincula] seek the legal advice of the respondent [Atty.
Macabata], regarding her collectibles from Queensway Travel and Tours. As promised, he sent Demand Letter dated December
11, 2004 (copy attached as Annex "I") to the concerned parties.

On February 10, 2005, met (sic) at Zensho Restaurant in Tomas Morato, 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 she is about to step out of the car, respondent hold (sic) her arm and kissed her on
the cheek and embraced her very tightly.

Again, on March 6, 2005, at about past 10:00 in the morning, she met respondent at Starbucks coffee shop in West Avenue,
Quezon City to finalize the draft of the complaint to be filed in Court. After the meeting, respondent offered again a ride, which he
usually did every time they met. Along the way, complainant was wandering (sic) why she felt so sleepy where in fact she just got
up from bed a few hours ago. At along Roosevelt Avenue immediately after corner of Felipe St., in San Francisco Del Monte,
Quezon City when she was almost restless respondent stopped his car and forcefully hold (sic) 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 criminal attempt
and immediately manage (sic) to go (sic) out of the car.

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 transpired was recorded in her cellular
phone and read as follows:
 Sent by complainant - forget the case. I decided to refer it with other lawyer
At 5:33:46 pm
replied by respondent - "does this mean I can not c u anymore"
at 6:16:11 pm (Does this mean I cannot see you
anymore)
sent by complainant - I feel bad. I can’t expect that u will take advantage of
at 6:17:59 pm the situation.
Follow-up message - wrong to kiss a girl especially in the lips if you don’t
Sent by complainant have relationship with her.
At 6:29:30 pm
Replied by respondent - "I’m veri sri. It’s not tking advantage of the situation, 2
At 6:32:43 pm put it rightly it s an expression of feeling. S sri" (I’m
very sorry. Its not taking advantage of the situation, to
put it rightly it is an expression of feeling)
Follow up message - I’m s sri. Il not do it again. Wil u stil c me s I can show
by respondent u my sincerity" (I’m so sorry. I’ll not do it again. Will
at 6:42:25 pm you still see me so I can show you my sincerity)

On the following day, March 7, 2005 respondent sent another message to complainant at 3:55:32 pm saying "I don’t know wat 2
do s u may 4give me. "Im realy sri. Puede bati na tyo." (I don’t know what to do so you may forgive me. I’m really sorry. Puede
bati na tayo).

Respondent replied "talk to my lawyer in due time." Then another message was received by her at 4:06:33 pm saying "Ano k ba.
I’m really sri. Pls. Nxt ime bhave n me." (Ano ka ba. I’m really sorry. Please next time behave na ko), which is a clear
manifestation of admission of guilt.2

In his answer,3 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 relative to the case which complainant was intending to file
against the owners of Queensway Travel and Tours for collection of a sum of money; that on both occasions, complainant rode
with him in his car where he held and kissed complainant on the lips as the former offered her lips to him; and, that the corner of
Cooper Street and Roosevelt Avenue, where he dropped off the complainant, was a busy street teeming with people, thus, it
would have been impossible to commit the acts imputed to him.

By way of defense, respondent further elucidated that: 1) there was a criminal case for Acts of Lasciviousness filed by
complainant against respondent pending before the Office of the City Prosecutor in Quezon City; 2) the legal name of
complainant is Cynthia Advincula Toriana since she remains married to a certain Jinky Toriana because the civil case for the
nullification of their marriage was archived pursuant to the Order dated 6 December 2000 issued by the Regional Trial Court of
Maburao, Occidental Mindoro; 3) the complainant was living with a man not her husband; and 4) the complainant never bothered
to discuss respondent’s fees and it was respondent who always paid for their bills every time they met and ate at a restaurant.

A hearing was conducted by the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP) at the IBP Building,
Ortigas Center, Pasig City, on 26 July 2005.

On 30 September 2005, Investigating Commissioner Dennis A. B. Funa submitted his Report and
Recommendation,4 recommending the imposition of the penalty of one (1) month suspension on respondent for violation of the
Code of Professional Responsibility.

Thereafter, the IBP passed Resolution No. XVII-2006-117 dated 20 March 2006, approving and adopting, with modification, the
recommendation of the Investigating Commissioner, 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 above-entitled case, herein made part of this Resolution as Annex
"A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and
considering the behavior of Respondent went beyond the norms of conduct required of a lawyer when dealing with or relating
with a client, Atty. Ernesto A. Macabata is SUSPENDED from the practice of law for three (3) months.5

The issue to be resolved in this case is: whether respondent committed acts that are grossly immoral or which constitute serious
moral depravity that would warrant his disbarment or suspension from the practice of law.

Simple as the facts of the case may be, the manner by which we deal with respondent’s actuations shall have a rippling effect on
how the standard norms of our legal practitioners should be defined. Perhaps morality in our liberal society today is a far cry from
what it used to be. 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.

The Code of Professional Responsibility provides:

CANON I – x x x

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.

xxxx

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.

As may be gleaned from above, the Code of Professional Responsibility forbids lawyers from engaging in unlawful, dishonest,
immoral or deceitful conduct.

Lawyers have been repeatedly reminded that their possession of good moral character is a continuing condition to preserve their
membership in the Bar in good standing. The continued possession of good moral character is a requisite condition for remaining
in the practice of law.6 In Aldovino v. Pujalte, Jr.,7 we emphasized that:

This Court has been exacting in its demand for integrity and good moral character of members of the Bar. They are expected at
all times to uphold the integrity and dignity of the legal profession and refrain from any act or omission which might lessen the
trust and confidence reposed by the public in the fidelity, honesty, and integrity of the legal profession. Membership in the legal
profession is a privilege. And whenever it is made to appear that an attorney is no longer worthy of the trust and confidence of
the public, it becomes not only the right but also the duty of this Court, which made him one of its officers and gave him the
privilege of ministering within its Bar, to withdraw the privilege.

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. Their exalted positions as officers of the court demand no less than the highest degree of morality.8 We explained
in Barrientos v. Daarol9 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 throughout their legal
career, in order to maintain their good standing in this 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, as long as it shows him to be wanting in
moral character, honesty, probity or good demeanor.10

In Bar Matter No. 1154,11 good moral character was defined as what a person really is, as distinguished from good reputation, or
from the opinion generally entertained of him, or the estimate in which he is held by the public in the place where he is known.
Moral character is not a subjective term but one which corresponds to objective reality.

It should be noted that the requirement of good moral character has four ostensible purposes, namely: (1) to protect the public;
(2) to protect the public image of lawyers; (3) to protect prospective clients; and (4) to protect errant lawyers from themselves.12

In the case at bar, respondent admitted kissing complainant on the lips.

In his Answer,13 respondent confessed, thus:

27. When she was about to get off the car, I said can I kiss you goodnight. She offered her left cheek and I kissed it and with my
left hand slightly pulled her right face towards me and kissed her gently on the lips. We said goodnight and she got off the car.

xxxx

35. When I stopped my car I said okay. I saw her offered (sic) her left cheek and I lightly kissed it and with my right hand slightly
pulled her right cheek towards me and plant (sic) a light kiss on her lips. There was no force used. No intimidation made, no lewd
designs displayed. No breast holding was done. Everything happened very spontaneously with no reaction from her except
saying "sexual harassment."

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

ATTY. MACABATA:

That time in February, we met … I fetched her I should say, somewhere along the corner of Edsa and Kamuning because it was
then raining so we are texting each other. So I parked my car somewhere along the corner of Edsa and Kamuning and I was
there about ten to fifteen minutes then she arrived. And so I said … she opened my car and then she went inside so I said, would
you like that we have a Japanese dinner? And she said yes, okay. So I brought her to Zensho which is along Tomas Morato.
When we were there, we discussed about her case, we ordered food and then a little while I told her, would it be okay for you of I
(sic) order wine? She said yes so I ordered two glasses of red wine. After that, after discussing matters about her case, so I said
… it’s about 9:00 or beyond that time already, so I said okay, let’s go. So when I said let’s go so I stood up and then I went to the
car. I went ahead of my car and she followed me then she rode on (sic) it. So I told her where to? She told me just drop me at the
same place where you have been dropping me for the last meetings that we had and that was at the corner of Morato and
Roosevelt Avenue. So, before she went down, I told her can I kiss you goodnight? She offered her left cheek and I kissed it and
with the slight use of my right hand, I ... should I say tilted her face towards me and when she’s already facing me I lightly kissed
her on the lips. And then I said good night. She went down the car, that’s it.

COMM. FUNA:

February 10 iyan.

xxxx

ATTY. MACABATA:
Okay. After that were through so I said let’s go because I have an appointment. So we went out, we went inside my car and I said
where to? Same place, she said, so then at the same corner. So before she went down , before she opened the door of the car, I
saw her offered her left cheek. So I kissed her again.

COMM. FUNA:

Pardon?

ATTY. MACABATA:

I saw her offered her left cheek like that, so I kissed her again and then with the use of my left hand, pushed a little bit her face
and then kissed her again softly on the lips and that’s it. x x x.14 (Emphases supplied.)

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.15

In Zaguirre v. Castillo,16 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, for such
conduct to warrant disciplinary action, the same must not simply be immoral, but grossly immoral. It must be so corrupt as to
constitute a criminal act, or so unprincipled as to be reprehensible to a high degree or committed under such scandalous or
revolting circumstances as to shock the common sense of decency.

The following cases were considered by this Court as constitutive of grossly immoral conduct:

In Toledo v. Toledo,17 a lawyer was disbarred from the practice of law, when he abandoned his lawful wife and cohabited with
another woman who had borne him a child.

In Obusan v. Obusan, Jr.,18 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 expected and required of a member of the bar.

In Dantes v. Dantes,19 respondent’s act 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 of appropriate sanctions.
Complainant’s testimony, taken in conjunction with the documentary evidence, sufficiently established that respondent breached
the high and exacting moral standards set for members of the law profession.

In Delos Reyes v. Aznar,20 it was ruled that it was highly immoral of respondent, a married man with children, to have taken
advantage 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 would flank in all her subjects in case she refused.

In Cojuangco, Jr. v. Palma,21 respondent lawyer was disbarred when he abandoned his lawful wife and three children, lured an
innocent woman into marrying him and misrepresented himself as a "bachelor" so he could contract marriage in a foreign land.

In Macarrubo v. Macarrubo,22 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." As such, "there can be no other fate that awaits respondent
than to be disbarred."

In Tucay v. Tucay,23 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 indicative of an extremely low
regard for the fundamental ethics of his profession," warranting respondent’s disbarment.

In Villasanta v. Peralta,24 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.

In Cabrera v. Agustin,25 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.

Immorality has not been confined to sexual matters, but includes 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 an inconsiderate attitude toward good order and public welfare.26

Guided by the definitions above, we perceived acts of kissing or beso-beso on the cheeks as mere gestures of friendship and
camaraderie,27 forms of greetings, casual and customary. The acts of respondent, though, in turning the head of complainant
towards him and kissing her on the lips are distasteful. However, such act, even if considered offensive and undesirable, cannot
be considered grossly immoral.

Complainant’s bare allegation that respondent made use and took advantage of his position as a lawyer to lure her to agree to
have sexual relations with him, deserves no credit. The burden of proof rests on the complainant, and she must establish the
case against the respondent by clear, convincing and satisfactory proof,28 disclosing a case that is free from doubt as to compel
the exercise by the Court of its disciplinary power.29 Thus, the adage that "he who asserts not he who denies, must prove."30 As a
basic rule in evidence, the burden of proof lies on the party who makes the allegations—ei incumbit probation, qui decit, non qui
negat; cum per rerum naturam factum negantis probation nulla sit.31 In the case at bar, complainant miserably failed to comply
with the burden of proof required of her. A mere charge or allegation of wrongdoing does not suffice. Accusation is not
synonymous with guilt.32

Moreover, while respondent admitted having kissed complainant on the lips, the same was not motivated by malice. We come to
this conclusion because right after the complainant expressed her annoyance at being kissed by the respondent through a
cellular phone text message, respondent immediately extended an apology to complainant also via cellular phone text message.
The exchange of text messages between complainant and respondent bears this out.

Be it noted also that the incident happened in a place where there were several people in the vicinity considering that Roosevelt
Avenue is a major jeepney route for 24 hours. If respondent truly had malicious designs on complainant, he could have brought
her to a private place or a more remote place where he could freely accomplish the same.

All told, as shown by the above circumstances, respondent’s acts are not grossly immoral nor highly reprehensible to warrant
disbarment or suspension.

The question as to what disciplinary sanction should be imposed against a lawyer found guilty of misconduct requires
consideration of a number of factors.33 When deciding upon the appropriate sanction, the Court must consider that the primary
purposes of disciplinary proceedings are to protect the public; to foster public confidence in the Bar; to preserve the integrity of
the profession; and to deter other lawyers from similar misconduct.34 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.35 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 profession and to the
public.
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 misconduct which seriously affect the standing and
character of the lawyer as an officer of the court and member of the Bar. Only those acts which cause loss of moral 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 lawyer’s 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 that attended the commission of the offense should also be considered.36

Censure or reprimand is usually meted out for an isolated act of misconduct of a lesser nature. It is also imposed for some minor
infraction of the lawyer’s duty to the court or the client.37 In the Matter of Darell Adams,38 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 which adversely reflected on his fitness to practice law.

Based on the circumstances of the case as discussed and considering that this is respondent’s first offense, reprimand would
suffice.

We laud complainant’s 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, the complaint for disbarment against respondent Atty. Ernesto Macabata, for alleged immorality, is hereby
DISMISSED. However, respondent is hereby REPRIMANDED to be more prudent and cautious in his dealing with his clients with
a STERN WARNING that a more severe sanction will be imposed on him for any repetition of the same or similar offense in the
future.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MA. ALICIA AUSTRIA-MARTINEZ ROMEO J. CALLEJO, SR.

Associate Justice Asscociate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

Footnotes

1 Rollo, pp. 1-2.

2 Id.
3 Id. at 13-20.

4 Id. at 149-155.

5 Id. at 148.

6Mortel v. Aspiras 100 Phil. 586, 592 (1956); Cordova v. Cordova, A.C. No. 3249, 29 November 1989, 179 SCRA
680, 683.

7 A.C. No. 5082, 17 February 2004, 423 SCRA 135, 140-141.

8 Ui v. Bonifacio, 388 Phil. 691, 708 (2000).

9 A.C. No. 1512, 29 January 1993, 218 SCRA 30, 40.

10 Rural Bank of Silay, Inc. v. Pilla, 403 Phil. 1, 9 (2001).

11In the Matter of the Disqualification of Bar Examinee Haron S. Meling in the 2002 Bar Examinations and for
Disciplinary Action as Member of the Philippine Shari’a Bar, B.M. No. 1154, 8 June 2004, 431 SCRA 146.

12 Dantes v. Dantes, A.C. No. 6486, 22 September 2004, 438 SCRA 582, 589.

13 Rollo, pp. 27, 35.

14 TSN, 26 July 2005, pp.18-24.

15 Ui v. Bonifacio, supra note 8.

16 446 Phil. 861, 867 (2003).

17 117 Phil. 768, 776 (1963).

18 213 Phil. 437, 440 (1984).

19 Supra note 12 at 588.

20 A.C. No. 1334, 28 November 1989, 179 SCRA 653, 659.

21 A.C. No. 2474, 15 September 2004, 438 SCRA 306, 315.

22 A.C. No. 6148, 27 February 2004, 424 SCRA 42, 54-55.

23 A.C. No. 5170, 17 November 1999, 318 SCRA 229, 231.

24 101 Phil. 313, 314 (1957).

25 106 Phil. 256, 259 (1960).

26Madredijo v. Loyao, Jr., 375 Phil. 1, 17 (1999); Alfonso v. Juanson, A.M. No. RTJ-92-904, 7 December 1993,
228 SCRA 239, 255-256, citing Black’s Law Dictionary, 6th ed. (1990), p. 751.
 27 Atty. Aquino v. Judge Acosta, 429 Phil. 498, 510 (2002).

28 Angeles v. Figueroa, A.C. No. 5050, 20 September 2005, 470 SCRA 186, 195.

29 Reyes v. Wong, Adm. Case No. 547, 29 January 1975, 63 SCRA 667, 673.

30 Angeles v. Figueroa, supra note 28.

31 Uytengsu III v. Baduel, Adm. Case No. 5134, 14 December 2005, 477 SCRA 621, 632.

32 Boyboy v. Yabut, Jr., A.C. No. 5225, 29 April 2003,401 SCRA 622, 627.

33 Agpalo, LEGAL ETHICS (4th Ed., 1989), p. 445.

34 In the Matter of a Member of the Bar of the Supreme Court of Delaware Joel D. Tenenbaum, 6 February 2007.

35 Ting-Dumali v. Torres, A.C. No. 5161, 14 April 2004, 427 SCRA 108, 119.

36 Id. at 445-446.

37 Id.

38 428 N.E. 2 d 786 (Ind. 1981).

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