children were born and where he practiced his profession until his
EN BANC
[A.C. No. 4148. July 30, 1998]
REMEDIOS RAMIREZ TAPUCAR, complainant, vs. ATTY. LAURO L.
TAPUCAR, respondent.
DECISION
PER CURIAM:
In a letter-complaint dated November 22, 1993, complainant
Remedios Ramirez Tapucar sought the disbarment of her husband, Atty.
Lauro L. Tapucar, on the ground of continuing grossly immoral conduct for
cohabiting with a certain Elena (Helen) Pea under scandalous
circumstances.[1]
Prior to this complaint, respondent was already administratively
charged four times for conduct unbecoming an officer of the court. in
Administrative Matter No. 1740, resolved on April 11, 1980, respondent, at
that time the Judge of Butuan City, was meted the penalty of six months
suspension without pay,[2] while in Administrative Matter Nos. 1720, 1911
and 2300-CFI, which were consolidated,[3] this Court on January 31, 1981
ordered the separation from service of respondent.[4]
Now he faces disbarment.
The records reveal the following facts:
From the Report and Recommendation of the Commission on Bar
Discipline, it appears that complainant and respondent were married on
October 29, 1953 at the Sacred Heart Roman Catholic Church in Quezon
City. They established their residence in Antipolo, Rizal, were eight of their
eleven children were born. In 1962 respondent relocated his family to
Dadiangas, Cotabato (Now General Santos City), where his last three
appointment as a CFI Judge in Butuan City on January 30, 1976.
In August, 1976, shortly after being appointed as CFI Judge, respondent
began cohabiting with a certain Elena (Helen) Pea, in Nasipit, Agusan Del
Norte. On December 28, 1977 Elena gave birth to their first child, named
Ofelia Sembrano Pea.
In view of this cohabitation, a certain Atty. Tranquilino Calo filed an
administrative complaint against respondent for immorality. After
investigation, the penalty of suspension from office for a period of six
months without pay was meted by this Court upon respondent. [5]
Despite this penalty, respondent still continued to cohabit with Elena,
giving rise to another charge of immorality and other administrative cases,
such as conduct unbecoming an officer of the court, and grossly immoral
conduct. These cases were consolidated and after investigation, this Court
ordered his dismissal and separation from the service.[6]
But his dismissal as a judge did not impel respondent to mend his
ways. He continued living with Elena, which resulted in the birth on
September 20, 1989, of their second child named Laella Pea
Tapucar. Moreover, he completely abandoned complainant and his children
by her.
Respondent later moved from Nasipit, Agusan del Norte back to
Antipolo, Rizal, bringing along Elena and their two children. And on March
5, 1992, respondent contracted marriage with Elena in a ceremony
solemnized by Metropolitan Trial Court Judge Isagani A. Geronimo of
Antipolo, Rizal. This was done while the respondents marriage to
complainant subsists, as nothing on record shows the dissolution thereof.
Complainant, in the meanwhile, had migrated to United States of
America upon her retirement from the government service in
1990. However, her children, who remained in Antipolo, kept her posted of
the misery they allegedly suffered because of their fathers acts, including
deception and intrigues against them. Thus, despite having previously
withdrawn a similar case which she filed in 1976, complainant was forced to
file the present petition for disbarment under the compulsion of the
material impulse to shield and protect her children from the despotic and
cruel acts of their own father. Complainant secured the assistance of her
eldest daughter, Atty. Ma. Susana Tapucar-Baua, to represent her in this
case.
Consistent with Section 20, Rule 139-B of the Rules of Court, the matter
was referred to the Commission on Bar Discipline of the Integrated Bar of
the Philippines for investigation, report and recommendation. After
conducting a thorough investigation, the Commission through
Commissioner Victor C. Fernandez recommended that respondent be
disbarred, and his name be stricken off the roll of attorneys. Mainly, this was
premised on the ground that, notwithstanding sanctions previously
imposed upon him by the Honorable Supreme Court, respondent continued
the illicit liaison with Elena.[7]
In his report Commissioner Fernandez noted that, instead of
contradicting the charges against him, respondent displayed arrogance, and
even made a mockery of the law and the Court, as when he said:
I have been ordered suspended by Supreme Court for two months without
pay in 1980 for having a mistress, the same girl Ms. Elena (Helen) Pea, now
my wife. Being ordered separated in later administrative case constitute
double jeopardy. If now disbarred for marrying Ms. Elena Pea will
constitute triple jeopardy. If thats the law so be it.[8]
Based on said report, the Board of Governors of the Integrated Bar of
the Philippines, passed on May 17, 1997, a Resolution adopting the
Commissioners recommendation, as follows:
RESOLUTION NO. XII-97-97
Adm. Case No. 4148
Remedios Ramirez Tapucar vs. Atty. Lauro L. Tapucar
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, the Report and Recommendation of the Investigating
Commissioner in the above-titled case, herein made part of the
Resolution/Decision as Annex A; and, finding the recommendation therein
to be fully supported by the evidence on record and the applicable laws
and rules, Respondent Atty. Lauro L. Tapucar is hereby DISBARRED and
that his name be stricken off the roll of attorneys.
We find the Report and Recommendation of Commissioner Fernandez,
as approved and adopted by the Board of Governors of IBP, more than
sufficient to justify and support the foregoing Resolution, herein considered
as the recommendation to this Court by said Board pursuant to Rule 139-B,
Sec. 12(b), of the Rules of Court.* We are in agreement that respondents
actuations merit the penalty of disbarment.
Well settled is the rule that good moral character is not only a
condition precedent for admission to the legal profession, but it must also
remain intact in order to maintain ones good standing in that exclusive and
honored fraternity.[9] There is perhaps no profession after that of the sacred
ministry in which a high-toned morality is more imperative than that of
law.[10] The Code of Professional Responsibility mandates that:
Rule 1.01. A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct.
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.*
As this Court often reminds members of the Bar, they must live up to
the standards and norms expected of the legal profession, by upholding the
ideals and tenets embodied in the Code of Professional Responsibility
always. Lawyers must maintain a high standards of legal proficiency, as well
as morality including honesty, integrity and fair dealing. For they are at all
times subject to the scrutinizing eye of public opinion and community
approbation. Needless to state, those whose conduct both public and
private fails this scrutiny would have to be disciplined and, after appropriate
proceedings, penalized accordingly.
Moreover, it should be recalled that respondent here was once a
member of the judiciary, a fact that aggravates this professional
infractions. For having occupied that place of honor in the Bench, he knew
a judges actuations ought to be free from any appearance of
impropriety.[11] For a judge is the visible representation of the law, more
importantly, of justice. Ordinary citizens consider him as a source of
strength that fortifies their will to obey the law.[12] Indeed, a judge should
avoid the slightest infraction of the law in all of his actuations, lest it be a
demoralizing example to others.[13] Surely, respondent could not have
forgotten the Code of Judicial Conduct entirely as to lose its moral
imperatives.[14]
Like a judge who is held to a high standard of integrity and ethical
conduct,[15] an attorney-at-law is also invested with public trust. Judges and
lawyers serve in the administration of justice. Admittedly, as officers of the
court, lawyers must ensure the faith and confidence of the public that justice
is administered with dignity and civility. A high degree or moral integrity is
expected of a lawyer in the community where he resides. He must maintain
due regard for public decency in an orderly society.
A lawyer is expected at all times to uphold the integrity and dignity of
the legal profession by faithfully performing his duties to society, to the bar,
to the courts and to his clients.[16]Exacted from him, as a member of the
profession charged with the responsibility to stand as a shield in the defense
of what is right, are such positive qualities of decency, truthfulness and
responsibility that have been compendiously described as moral character.
To achieve such end, every lawyer needs to strive at all times to honor and
maintain the dignity of his profession, and thus improve not only the public
regard for the Bar but also the administration of justice.
On these considerations, the Court may disbar or suspend a lawyer for
misconduct, whether in his professional or private capacity, which shows
him to be wanting in moral character, in honesty, probity, and good
demeanor, thus proving unworthy to continue as an officer of the court. [17]
The power to disbar, however, is one to be exercised with great
caution, and only in a clear case of misconduct which seriously affects the
standing and character of the lawyer as an officer of the Court of and
member of the bar.[18] For disbarment proceedings are intended to afford
the parties thereto full opportunity to vindicate their cause before
disciplinary action is taken, to assure the general public that those who are
tasked with the duty of administering justice are competent, honorable,
trustworthy men and women in whom the Courts and the clients may
repose full confidence.
In the case of Obusan vs. Obusan, Jr.,[19] a complaint for disbarment
was filed against a member of the bar by his wife. She was able to prove that
he had abandoned his wife and their son; and that he had adulterous
relations with a married but separated woman. Respondent was not able to
overcome the evidence presented by his wife that he was guilty of grossly
immoral conduct. In another case,[20] a lawyer was disbarred when he
abandoned his lawful wife and cohabited with another woman who had
borne him a child. The Court held that respondent failed to maintain the
highest degree of morality expected and required of a member of a bar.
In the present case, the record shows that despite previous
sanctions imposed upon by this Court, respondent continued his illicit liaison
with a woman other than lawfully-wedded wife.The report of the
Commissioner assigned to investigate thoroughly the complaint found
respondent far from contrite; on the contrary, he exhibited a cavalier
attitude, even arrogance; in the face of charges against him. The IBP Board
of Governors, tasked to determine whether he still merited the privileges
extended to a member of the legal profession, resolved the matter against
him. For indeed, evidence of grossly immoral conduct abounds against him
and could not be explained away. Keeping a mistress, entering into another
marriage while a prior one still subsists, as well as abandoning and/or
mistreating complainant and their children, show his disregard of family
obligations, morality and decency, the law and the lawyers oath. Such gross
misbehavior over a long period of time clearly shows a serious flaw in
respondents character, his moral indifference to scandal in the community,
and his outright defiance of established norms. All these could not but put
the legal profession in disrepute and place the integrity of the
administration of justice in peril, hence the need for strict but appropriate
disciplinary action.
IN VIEW THEREOF, respondent Atty. Lauro L. Tapucar is
hereby DISBARRED. The Clerk of Court is directed to strike out his name
from the Roll of Attorneys.
SO ORDERED.
 Narvasa, C.J., Regalado, Davide, Jr., Romero, Melo, Puno, Vitug, Respondent. June 27, 2006
Kapunan, Mendoza, Panganiban, Martinez, and Quisumbing, JJ., concur.
Bellosillo, no part due to personal relationships. x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x
Purisima, J., no part.

DECISION

FIRST DIVISION

PANGANIBAN, CJ:
FRANCISCO SALVADOR B. G.R. No. 156643
ACEJAS III,
Petitioner, Present:
his Court defers to the Sandiganbayans evaluation of the factual
Panganiban, CJ,
Chairman,
- versus - Ynares-Santiago, issues. Not having heard any cogent reasons to justify an exception to
Austria-Martinez, T
Callejo, Sr., and this rule, the Court adopts the anti-graft courts findings. In any event,
Chico-Nazario, JJ
after meticulously reviewing the records, we find no ground to reverse
PEOPLE OF THE PHILIPPINES,
Respondent. the Sandiganbayan.

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

VLADIMIR S. HERNANDEZ, G.R. No. 156891 The Case

Petitioner,

Before us are consolidated Petitions for Review[1] assailing

- versus -

the March 8, 2002 Decision,[2] and the January 3[3] and 14,

Promulgated: 2003[4] Resolutions of the Sandiganbayan in Criminal Case No. 20194.

PEOPLE OF THE PHILIPPINES,

Francisco SB. Acejas III and Vladimir S. Hernandez were found guilty beyond
reasonable doubt of direct bribery penalized under Article 210 of the
Revised Penal Code.
Vladimir S. Hernandez, Victor D. Conanan, SPO3 Expedito S. Perlas,
Francisco SB. Acejas III and Jose P. Victoriano were charged on February 8,
convicted. The challenged Decision disposed as follows:
1994, in an Information that reads thus:
That on or about January 12, 1994, or sometime
prior thereto in the City of Manila, Philippines, and within
the jurisdiction of this Honorable Court, the above-named
accused VLADIMIR S. HERNANDEZ and VICTOR CONANAN,
being then employed both as Immigration officers of the
Bureau of Immigration and Deportation, Intramuros,
Manila, hence are public officers, taking advantage of
their official positions and committing the offense in
relation to office, conspiring and confederating with
Senior Police Officer 3 EXPEDITO S. PERLAS of the Western
Police District Command, Manila, together with co-
accused Atty. FRANCISCO SB. ACEJAS III, of the
LUCENARIO, MARGATE, MOGPO, TIONGCO & ACEJAS
LAW OFFICES, and co-accused JOSE P. VICTORIANO, a
private individual, did then and there, willfully, unlawfully
and feloniously demand, ask, and/or extort One Million
(P1,000,000.00) PESOS from the spouses BETHEL GRACE
PELINGON and Japanese TAKAO AOYAGI and FILOMENO
PELINGON, JR., in exchange for the return of the passport
of said Japanese Takao Aoyagi confiscated earlier by co-
accused Vladimir S. Hernandez and out of said demand,
the complainants Bethel Grace Pelingon, Takao Aoyagi
and Filomeno Pelingon, Jr. produced, gave and delivered
the sum of Twenty Five Thousand (P25,000.00) Pesos in
marked money to the above-named accused at a
designated place at the Coffee Shop, Ground Floor,
Diamond Hotel, Ermita, Manila, causing damage to the
said complainants in the aforesaid amount of P25,000.00,
and to the prejudice of government service.[5]
After trial, all the accused -- except Victoriano -- were
WHEREFORE, premises considered, accused
Vladimir S. Hernandez, Victor D. Conanan, Expedito S.
Perlas and Francisco SB. Acejas III are hereby found
GUILTY beyond reasonable doubt of the crime of Direct
Bribery, and are sentenced to suffer the indeterminate
penalty of four (4) years, nine (9) months and ten (10) days
of prision correccional, as minimum, to seven (7) years
and four (4) months of prision mayor, as maximum, and to
pay a fine of three million pesos (P3,000,000.00). Accused
Vladimir S. Hernandez and Victor D. Conanan shall also
suffer the penalty of special temporary
disqualification. Costs against the accused.
On ground of reasonable doubt, accused Jose P.
Victoriano is hereby ACQUITTED of the crime charged. The
surety bond he posted for his provisional liberty is
cancelled. The Hold Departure Order against him
embodied in this Courts Order dated July 24, 2000 is
recalled.[6]

The first Resolution acquitted Conanan and denied reconsideration
of the other accused. The second Resolution denied
Petitioner Acejas Motion for New Trial.
Hence, petitioners now seek recourse in this Court.[7]
The Facts
The facts[8] are narrated by the Sandiganbayan as follows:
At around 4:00 to 5:00 p.m. of December 17,
1993, accused Bureau of Immigration and Deportation
(BID) Intelligence Agent Vladimir Hernandez, together
with a reporter, went to the house of Takao Aoyagi and
Bethel Grace Pelingon-Aoyagi at 27 Pacific Drive, Grand
Villa, Sto. Nio, Paraaque, Metro Manila. His purpose was
to serve Mission Order No. 93-04-12 dated December 13,
1993, issued by BID Commissioner Zafiro Respicio against
Takao Aoyagi, a Japanese national. Hernandez told Takao
Aoyagi, through his wife, Bethel Grace, that there were
complaints against him in Japan and that he was
suspected to be a Yakuza big boss, a drug dependent and
an overstaying alien.
To prove that he had done nothing wrong, Takao
Aoyagi showed his passport to Hernandez who issued an
undertaking (Exh. B) which Aoyagi signed. The
undertaking stated that Takao Aoyagi promised to appear
in an investigation at the BID on December 20, 1993, and
that as a guarantee for his appearance, he was entrusting
his passport to Hernandez. Hernandez acknowledged
receipt of the passport.
On December 18, 1993, Bethel Grace Aoyagi called
accused Expedito Dick Perlas[9] and informed him about
the taking of her husbands passport by Hernandez.Perlas
told her he would refer their problem to his brother-in-
law, Atty. Danton Lucenario of the Lucenario, Margate,
Mogpo, Tiongco and Acejas III Law Firm. It was at the
Sheraton Hotel that Perlas introduced the Aoyagis to Atty.
Lucenario. They discussed the problem and Atty.
Lucenario told the Aoyagis not to appear before the BID
on December 20, 1993.
As advised by Atty. Lucenario, Takao Aoyagi did not
appear before the BID. Instead, Atty. Rufino M. Margate
of the Lucenario Law Firm filed with the BID an Entry of
Appearance (Exh. 6 Acejas). Atty. Margate requested for
copies of any complaint-affidavit against Takao Aoyagi and
asked what the ground was for the confiscation of x x x
Aoyagis passport.
Hernandez prepared a Progress Report (Exh. 5 Hernandez)
which was submitted to Ponciano M. Ortiz, the Chief of
Operations and Intelligence Division of the BID. Ortiz
recommended that Takao Aoyagi, who was reportedly a
Yakuza and a drug dependent, be placed under custodial
investigation.
In the evening of December 22, 1993 at the Diamond
Hotel, the Aoyagis met accused Atty. Francisco Acejas III
who was then accompanied by Perlas. Atty. Acejas
informed them that it would be he who would handle their
case. A Contract for Legal Services (Exh. D)
dated December 22, 1993 was entered into by Takao NBI, and Atty. Somera who arranged the entrapment
Aoyagi and Atty. Acejas, who represented the Lucenario operation.
Law Firm.
On January 12, 1994, Vladimir Hernandez returned the
In the morning of December 23, 1993, Perlas and Atty. passport to Takao Aoyagi at the Coffee Shop of the
Acejas accompanied the Aoyagis to Diamond Hotel. The NBI Team headed by Attorneys
the Domestic Airport as the latter were going to Davao. It Saunar and Somera arrested Dick Perlas, Atty. Acejas and
was here that Takao Aoyagi paid Atty. Jose Victoriano after the latter picked up the brown
Acejas P40,000.00, P25,000 of which is 50% of the envelope containing marked money representing the
acceptance fee, and the P15,000.00 is for filing/docket fee amount being allegedly demanded. Only Perlas, Acejas
(Exh. O). The Aoyagis were able to leave only in the and Victoriano were brought to the NBI Headquarters.[10]
afternoon as the morning flight was postponed.

On December 24, 1993, while attending a family reunion,

Bethel Grace Pelingon-Aoyagi informed her brother,
Filomeno Jun Pelingon, Jr., about her husbands passport. Version of the Prosecution

On January 2, 1994, Jun Pelingon talked to BID

Commissioner Zafiro Respicio in Davao and told the latter
of Takao Aoyagis problem with the BID. Respicio gave Testifying for the prosecution were Bethel Grace Pelingon Aoyagi,
Pelingon his calling card and told Pelingon to call him up in
his office. That same day, Jun Pelingon and Mr. and Mrs.
Filomeno Jun Basaca Pelingon, Jr., and Carlos Romero Saunar.[11]
Aoyagi flew back to Manila.

On January 5, 1994, Jun Pelingon, Dick Perlas, Atty. Acejas,

Vladimir Hernandez, Vic Conanan and Akira Nemoto met
at the Aristocrat Restaurant in Roxas Boulevard. The prosecution evidence showed that it was during a meeting on

Another meeting was arranged at the Manila Nikko Hotel January 5, 1994, when P1 million as consideration for the passport was
in Makati on January 8, 1994 with Jun Pelingon, Perlas,
Atty. Acejas and Hernandez attending. demanded.Conanan averred that Aoyagi was a drug trafficker and Yakuza

On January 11, 1994, on account of the alleged demand member. The money was to be used to settle the alleged problem and to
of P1 million for the return of Takao Aoyagis passport, Jun
Pelingon called up Commissioner Respicio. The latter facilitate the processing of a permanent visa. When Pelingon negotiated to
referred him to Atty. Angelica Somera, an NBI Agent
detailed at the BID. It was Atty. Carlos Saunar, also of the

lower the amount demanded, Conanan stated that there were many of
them in the Bureau of Immigration and Deportation (BID).[12]
During the second meeting held at Hotel Nikko, Pelingon was
informed that the press and government enforcers were after
Aoyagi. Hernandez asked for a partial payment of P300,000, but Pelingon
said that the whole amount would be given at just one time to avoid another
meeting.[13]
After talking to Commissioner Respicio on January
[14]
1994, Pelingon called up Dick Perlas to schedule the exchange.
Regarding the involvement of Petitioner Acejas, the Office of the
Solicitor General (OSG) adds the following facts:
1.2. On 5 January 1994, [Acejas] and Perlas met
Pelingon at the Aristocrat Restaurant. [Acejas] informed
Pelingon that he would file a P1 million lawsuit against the
BID agents who confiscated the passport of Takao
Aoyagi. [Acejas] showed Pelingon several papers, which
allegedly were in connection with the intended
lawsuit. However, when Hernandez and Conanan arrived
at the Aristocrat Restaurant, [Acejas] never mentioned to
the BID agents the P1 million lawsuit. [Acejas] just hid the
papers he earlier showed to Pelingon inside his [Acejas]
bag.
1.3. [Acejas] was present when Hernandez
proposed that Takao Aoyagi pay the amount of P1 million
in exchange for the help he would extend to him (Takao)
in securing a permanent visa in the Philippines. [Acejas],
who was Aoyagis lawyer, did nothing.
1.4. On 10 January 1994, [Acejas], Pelingon,
Perlas and Hernandez met at the Hotel Nikko. Thereat,
Hernandez informed the group that certain government
officials and even the press were after Takao
Aoyagi. Hernandez said that Takao Aoyagi can make a
partial payment of P300,000.00. Pelingon however,
assured the group that Takao Aoyagi would pay in full the
amount of P1 million so as not to set another meeting
date. [Acejas] kept quiet throughout the negotiations.
11,
xxxxxxxxx
1.5.a. [Acejas] was present during the
entrapment that took place at the Diamond
Hotel. Hernandez handed the passport to [Acejas], who
handed it then to Perlas and thereafter to Takao
Aoyagi. After Takao Aoyagi went over his confiscated
passport, Bethel Grace handed to Hernandez the
envelope[15] containing the supposed P1
million. Hernandez refused and motioned that [Acejas] be
the one to receive it. [Acejas] willingly got the envelope
and placed it beside him and Perlas.
x x x before Hernandez handed out Aoyagis pass-
port, he reminded the group of their earlier agreement of
kaliwaan, i.e., that after the passport is released, the
Aoyagis should give the P1 million.[16]

Version of the Defense
Vladimir S. Hernandez, Expedito S. Perlas, Francisco SB. Acejas III, Victor D.
In his Petition, Acejas narrates some more occurrences as follows:
Conanan and Ponciano M. Ortiz testified for the defense.[17]
To the Sandiganbayans narration, Hernandez adds:
6. x x x [Hernandez], an intelligence agent of the Bureau of
Immigration and Deportation (BID), went to the house of
Private Respondents Takao and Bethel Grace Aoyagi to
enforce and serve a Mission Order issued and assigned to
him by BID Commissioner Zafiro Respicio on December 13,
1993, for the arrest of Takao Aoyagi.
7. When Bethel Grace showed [Hernandez] her
husbands passport, [Hernandez] found out that the latters
[authority] to stay had already been duly extended. He
invited private respondents to go with him to the BID
office. They declined, but made a written undertaking to
appear at the BID office for investigation on December 20,
1993. As security for said undertaking, Bethel Grace
Aoyagi entrusted to [Hernandez] her husbands passport,
receipt of which [Hernandez], in return, acknowledge[d]
in the same instrument.
8. On January 19, 1994, [Hernandez] signified
that the record of Aoyagi has been cleared and that he can
pick up his passport at the BID office. In connection
therewith, [Hernandez] was invited by Perlas to make the
return at a lunchtime meeting to be held at the Diamond
Hotel Coffee Shop. Upon arrival thereat, [Hernandez] gave
the passport to Atty. Acejas, Aoyagis counsel, and within
less than ten minutes, he left the coffee shop.[18]
1. 18th December 1993 The law firm of Lucenario Margate
Mogpo Tiongco & Acejas was engaged by the spouses
Takao Aoyagi and Bethel Grace Pelingon Aoyagi. x x x.
xxxxxxxxx
3. 22nd December 1993
a) The managing partner of the law firm, Atty. Lucenario,
briefed [Acejas] about the facts regarding
the confiscation by agents of the BID of the passport
belonging to a Japanese client. x x x.
b) Thereafter, [Acejas] was tasked by Atty. Lucenario
to meet his brother-in-law Mr. Expedito Perlas, who
happened to be a policeman and a friend of Mr. Takao
Aoyagi. Thus, [Acejas] met Mr. Perlas for the first time in
the afternoon of this date.
c) Also, for the first time, [Acejas] met the clients, spouses
Aoyagis, at the Diamond Hotel, where they were staying.
x x x [Acejas] advised them that the law firm decided that
the clients can file an action for Replevin plus Damages for
the recovery of the Japanese passport.

d) The CONTRACT FOR LEGAL SERVICES was signed
between the client and the law firm, thru [Acejas] as
partner thereof. x x x The amount of Fifty Thousand Pesos
(Php.50,000.00) was agreed to be paid by way of Case
Retainers/Acceptance Fees, which was supposed to be
payable upon (the) signing (t)hereof, and the sum of
Php.2,000.00 by way of appearance fee. However, the
client proposed to pay half only of the acceptance fee
(Php.25,000.00), plus the estimated judicial expenses for
the filing or docket fees (Php.15,000.00). x x x It was then
further agreed that the balance of Php.25,000.00 was
supposed to be given upon the successful recovery of the
Japanese passport.
e) The clients informed [Acejas] that they are supposed to
leave for Davao the following day on the 23rd because they
will spend their Christmas in Davao City; but they promised
that they will be back on the 26th, which is a Sunday, so
that on the 27th, which is a Monday, the complaint against
the BID officers will have to be filed in Court.
xxxxxxxxx
6. 27 th December 1993 (T)he law office received word
from Mr. Perlas that the Japanese did not come back
on the 26 th (December), x x x so that the case cannot
be filed on the 27 th instead (it has) to wait for clients
instruction.
7. 4th January 1994 In the late afternoon, the law firm
received a telephone call from Mr. Perlas informing (it)
that the Japanese is already in Manila and he was
requesting for an appointment with any of the lawyer of
the law firm on January 5, 1994.
8. 5th January 1994 [Acejas] met for the first time Mr.
Filomeno Pelingon Jr. including a certain Nimoto
Akira.
x x x.
b) [Acejas] told Mr. Pelingon Jr. that all the pleadings are
ready for filing but, of course, the Japanese client and the
wife should first read the complaint and sign if they want
to pursue the filing of the complaint against the BID
agents.
c) For the first time, Mr. Pelingon advised against the
intended filing of the case. x x x He instead suggested that
he wants to directly negotiate with the BID agents.
d) Thereafter, Mr. Pelingon instructed Mr. Dick Perlas to
contact the BID agent who confiscated the Japanese
passport. Mr. Perlas and Mr. Pelingon were able to
contact the BID agent.
e) For the first time [Acejas] saw Mr. Hernandez, when the
latter arrived and also accused Victor Conanan. In the
course of the meeting, a confrontation ensued between
[Acejas] and [Hernandez] concerning the legal basis for
the confiscation of the passport. [Acejas] demanded for
the return of the Japanese passport x xx. Mr.
Hernandez said that if there are no further derogatory
report concerning the Japanese client, then in a matter of
week (from January 5 to 12), he will return the passport.
f) [Acejas] gave an ultimatum to Mr. Hernandez that if the
Japanese passport will not be returned in one (1) weeks
time, then (the law firm) will pursue the filing of the
replevin case plus the damage suit against him including
the other BID agents.
g) x x x Mr. Pelingon Jr. for the second time advised
against the filing thereof saying that his Japanese brother-
in-law would like to negotiate or in his own words
magbibigay naman [i.e. will give money anyway].
9. 8th January 1994
a) Again, Mr. Perlas called the law office and informed
x x x that the Japanese client is now in Manila. Petitioner
attended the meeting they arranged in (Makati) and meet
Dick Perlas, Vladimir Hernandez and Pelingon Jr. x x x.
b) x x x according to Pelingon Jr., the Japanese does not
want to meet with anybody because anyway they are
willing to pay or negotiate.
c) [Hernandez was also] present at the meeting and
[Acejas] met him for the second time. x x x [Acejas] said
that if [Hernandez] will not be able to return the
passport on or before January 12, 1994, then the law firm
will have no choice but to file the case against
him x x x. Again, for the third time Mr. Pelingon warned
against the filing of the case because he said that he would
directly negotiate with the BID agents.
d) The Makati meeting ended up with the understanding
that Mr. Hernandez will have to undertake the return [of]
the Japanese passport on or before January 12, 1994.
10. 12th January 1994
a) Mr. Perlas called up the law office informing that the
Japanese client was already in Manila and was requesting
for an appointment with the lawyers at lunchtime of
January 12 at the Diamond Hotel where he was billeted.
xxxxxxxxx
c) x x x x x x x x x
At this meeting, the Japanese was inquiring on the status
of the case and he was wondering why the Japanese
passport is not yet recovered when according to him he
has already paid for the attorney fees. And so, [Acejas]
explained to him that the case has to be filed and they still
have to sign the complaint, the Special Power of Attorney
and the affidavit relative to the filing of replevin case. But
the Japanese would not fully understand. So, Pelingon Jr.
again advised against the filing of the case saying that
since there is no derogatory record of Mr. Aoyagi at the
BID office, then the BID agents should return the Japanese
passport.
xxxxxxxxx
e) Thereafter, Pelingon, Jr. and Dick Perlas x x x tried to
contact Mr. Hernandez. Since, they were able to contact
the latter, we waited until around 2:00 p.m..When Mr.
Hernandez came, he said that the Japanese client is
cleared at the BID office and so, he can return the Japanese
passport and he gave it to [Acejas].x x x When [Acejas]
received the Japanese passport, (he) checked the
authenticity of the documents and finding that it was in
good order, (he) attempted to give it to the Japanese
client.
Very strangely when [Acejas] tried to hand-over the
Japanese passport to the Japanese across the table, the
Japanese was motioning and wanted to get the
passport under the table. x x x [Acejas] found it
strange. (He) x x x thought that it was a Japanese custom
to receive things like that under the table. But nonetheless,
[Acejas] did not give it under the table and instead passed
it on to Mr. Dick Perlas who was seated at (his) right. And
so, it was Mr. Dick Perlas who took the passport from
[Acejas] and finally handed it over to Mr.
Aoyagi. x x x. After that, there was a little chat between
Mr. Hernandez and the client, and Mr. Hernandez did not
stay for so long and left.

Still, thereafter, (w)hen the Japanese passport was

received, Bethel Grace Aoyagi and [Acejas] were talking Ruling of the Sandiganbayan
and she said since the Japanese passport had been
recovered, they are now willing to pay the Php.25,000.00
balance of the acceptance fee.
The Sandiganbayan ruled that the elements of direct bribery, [20] as well as
Mrs. Aoyagi was giving [Acejas] a brown envelope but she
want[ed] Mr. Hernandez to receive it while Mr. Hernandez
was still around standing. But Mr. Hernandez did not conspiracy in the commission of the crime,[21] had been proven. Hernandez
receive it.
and Conanan demanded money;[22] Perlas negotiated and dealt with the
Since, the payment is due to the law firm,
[Acejas] received the brown envelope. complainants;[23] and Acejas accepted the payoff and gave it to Perlas.[24]

xxxxxxxxx

Not long after, [Acejas] saw his companion, Victoriano was acquitted on reasonable doubt.[25] Although he had
accused Mr. Victoriano, who was signaling something as if
there was a sense of urgency. [Acejas] immediately stood picked up the envelope containing the payoff, this act did not sufficiently
up and left hurriedly. When [Acejas] approached Mr.
Victoriano, he said that the car which [Acejas] parked in
show that he had conspired with the other accused.[26]
front of the Diamond Hotel gate, somebody took the
car. [Acejas] went out and checked and realized that it was
valet parking so it was the parking attendant who took the
car and transferred the car to the parking area. [Acejas]
requested Mr. Victoriano to get (the) envelope and the The Sandiganbayan did not give credence to the alleged belief of Acejas that
coat, at the table.
the money was the balance of the law firms legal fees. [27] If he had indeed
g) When [Acejas] went out, [Acejas] already
looked for the parking attendant to get the car. When the believed that the money was payable to him, he should have kept and
car arrived, [Acejas] just saw from the doors of
the Diamond Hotel Mr. Jose Victoriano and Mr. Dick retained it. The court then inferred that he had merely been pretending to
Perlas coming out already in handcuffs and collared by the
NBI agents. They then were taken to the NBI, except the
accused Vladimir Hernandez.[19]
 I. Whether or not respondent court erred in ruling that
protect his clients rights when he threatened to file a suit against [Hernandez] was part of the conspiracy to extort
money from private respondents, despite lack of
Hernandez.[28] clear and convincing evidence.

II. Whether or not the Honorable Sandiganbayan gravely

abused its discretion when it overlooked the fact
that the legal requisites of the crime are not
The January 3, 2003 Resolution acquitted Conanan and denied the Motions
completely present as to warrant [Hernandez]
complicity in the crime charged.
for Reconsideration of Hernandez, Acejas and Perlas. According to the
III. Whether or not respondent Sandiganbayan,
Sandiganbayan, Conanan was not shown to be present during the meetings 5th Division, ruled erroneously when it relied
solely on the naked and uncorroborated
on January 8 and 12, 1994.[29] His presence during one of those meetings, testimonies of the late Filomeno Jun Pelingon, Jr.
in order to declare the existence of a conspiracy
on January 5, 1994, did not conclusively show his participation as a co- to commit bribery, as well as the guilt of the
accused.
conspirator.
IV. Whether or not [respondent] courts acquittal of co-
accused Victor Conanan and its conviction of
[Hernandez] for the offense as charged
effectively belies the existence of a conspiracy.

V. Whether or not the respondent Sandiganbayan

The January 14, 2003 Resolution denied Acejas Supplemental
committed grave abuse of discretion amounting
to lack of, or in excess of jurisdiction when it
Motion, which prayed for a new trial.
found [Hernandez] guilty beyond reasonable
doubt of the crime of direct bribery.[30]

The Issues

Petitioner Hernandez raises the following issues:

 On the other hand, Petitioner Acejas simply enumerates the

following points:
The crime of direct bribery exists when a public officer 1)
1. The Conspiracy Theory
2. The presence of lawyer-client relationship; duty to agrees to perform an act that constitutes a crime in consideration of any
clients cause; lawful performance of duties
3. Instigation not entrapment offer, promise, gift or present; 2) accepts the gift in consideration of the
4. Credibility of witness and testimony
5. Affidavit of desistance; effect: creates serious doubts as execution of an act that does not constitute a crime; or 3) abstains from the
to the liability of the accused
6. Elements of bad faith
performance of official duties.[32]
7. Elements of the crime (direct bribery)
8. Non-presentation of complaining victim tantamount to
suppression of evidence[31]

Petitioners were convicted under the second kind of direct bribery,

which contained the following elements: 1) the offender was a public

In the main, petitioners are challenging the finding of guilt against
officer, 2) who received the gifts or presents personally or through another,
them. The points they raised are therefore intertwined and will be discussed
3) in consideration of an act that did not constitute a crime, and 4) that act
jointly.
related to the exercise of official duties.[33]

The Courts Ruling

Hernandez claims that the prosecution failed to show his involvement in the

The Petitions have no merit. crime. Allegedly, he was merely implementing Mission Order No. 93-04-12,

which required him to investigate Takao Aoyagi.[34] The passport was

Main Issue:
Finding of Guilt
 A: Then, [Perlas] gave it to Mr. Aoyagi, sir.
supposed to have been voluntarily given to him as a guarantee to appear at
Q: The passport?
the BID office, but he returned it upon the instruction of his superior. [35] A: Yes, sir.

The chain of circumstances, however, contradicts the contention of Q: And when Mr. Aoyagi received the passport,
what did you do or what did Mr. Aoyagi
do?
Hernandez. It was he who had taken the passport of Takao Aoyagi. [36] On
A: He checked all the pages and he kept it, sir.

various dates,[37] he met with Takao and Bethel Grace Aoyagi, and xxxxxxxxx

also Pelingon, regarding the return of the passport. Hernandez then asked Q: What did you do with that money after Mr.
Aoyagi received the passport?
for a down payment on the payoff,[38] during which he directed Bethel Grace A: Because our agreement is that after giving the
passport we would give the money so
to deliver the money to Acejas.[39] when Mr. Perlas handed to my husband
the passport, I gave the money placed
on my lap to my husband and he passed
it to Mr. Hernandez who refused the
Bethel Grace Aoyagis testimony, which was confirmed by the other same.

ATTY. ACEJAS:
witnesses, proceeded as follows:
Your Honor, please, may I just make a clarification that
when the witness referred to the money it pertains to
PROSECUTOR MONTEMAYOR:
the brown envelope which allegedly contains the
money x x x .
Q: When Vlademir Hernandez arrived, what
happened?
AJ ESCAREAL:
A: He got the passport from his pocket and
passed it on to Atty. Acejas, sir.
Noted.
Q: What happened after he gave the passport to
PROSECUTOR MONTEMAYOR:
Atty. Acejas?
A: [Acejas] gave the passport to Mr. Expedito
Q: Did Mr. Hernandez got hold or touched the
Perlas, sir.
envelope?
A: No, sir.
Q: After that, what happened?
 Q: When he [did] not want to receive the
envelope, what did your husband do?
A: When Mr. Vlademir Hernandez refused to
receive the money, he pointed to Atty.
Acejas so my husband handed it to Atty.
Acejas who received the same and later
on passed it to Mr. Perlas.
Q: And then, what happened?
A: After the money was placed where it was, we
were surprised, I think, it happened in
just seconds[.] Mr. Vlademir Hernandez
immediately left and then all of a
sudden somebody came and picked up
the envelope, sir.[40]

Q: When Mr. Hernandez pointed to Atty. Acejas,

did he say anything?
A: None, sir, he just motioned like this.
Significantly, Hernandez does not address the lingering questions about why
INTERPRETER:
Witness motioning by [waving] her two (2) Takao Aoyagi or his representatives had to negotiate for the retrieval of the
hands, left and right.
passport during the meetings held outside the BID. Ponciano Ortiz, chief of

PROSECUTOR MONTEMAYOR: the Operation and Intelligence Division of the BID, testified that it was not a

Q: And at the same time pointed to Atty. Acejas? standard operating procedure to officially return withheld passports in such
A: Yes, sir.
locations.[41] It can readily be inferred that Hernandez had an ulterior motive
Q: And your husband gave the envelope to Atty.
Acejas? for withholding the passport for some time despite the absence of any legal
A: Yes, sir.
purpose.
Q: And Atty. Acejas, in turn, handed the said
envelope to whom?
A: Expedito Perlas, sir.
Also, Hernandez cannot claim innocence based
Q: Did Expedito Perlas [receive] that envelope?
A: Yes, sir.
on Conanans acquittal.[42] While the testimony of Pelingon was the only
Q: After that, what happened?
A: Mr. Perlas put the money on his side in evidence linking Conanan to the conspiracy,[43] there was an abundance of
between him and Atty. Acejas, sir.
evidence showing Hernandezs involvement.

Acejas, on the other hand, belies his involvement in the conspiracy. He
attacks the prosecutions version that he was silent during the negotiations
for the return of the passport.[44] According to him, he kept giving Hernandez
an ultimatum to return the passport, with threats to file a court case.
Acejas testified that he had wanted to file a case against Hernandez, but was
prevented by Spouses Aoyagi. His supposed preparedness to file a case
against Hernandez might have just been a charade and was in fact belied
by Pelingons testimony regarding the January 5, 1994 meeting:
ATTY. VALMONTE:
Q: Who arrived first at Aristocrat Restaurant, you
or Acejas?
A: Acejas arrived together with Dick Perlas[.
T]hey arrived ahead of me, sir.
xxxxxxxxx
Q: When the three (3) of you were talking that
was the time that Atty. Acejas was
showing you documents that he was
going to file [a] P1 million damage suit
against Hernandez?
A: Yes, sir.
Q: Now, is it not that when Hernandez and
Cunanan arrived and you were talking
with each other, Atty. Acejas also
threatened, reiterated his threat to
Hernandez that he would file [a] P1
million damage suit should Hernandez
[fails] to return the passport?
A: When the group [was] already there, the P1
million [damage suit] was not [anymore]
mentioned, sir.[45]
Even assuming that Acejas negotiated for the return of the passport on his
clients behalf, he still failed to justify his actions during the entrapment
operation. The witnesses all testified that he had received the purported
payoff. On this point, we recount the testimony of Bethel Grace Aoyagi:
PROSECUTOR MONTEMAYOR:
xxxxxxxxx
Q: When he [did] not want to receive the
envelope, what did your husband do?
A: When Mr. Vlademir Hernandez refused to
receive the money, he pointed to Atty.
Acejas so my husband handed it to Atty.
Acejas who received the same and later
on passed it to Mr. Perlas.
Q: When Mr. Hernandez pointed to Atty. Acejas,
did he say anything?
A: None, sir, he just motioned like this.

INTERPRETER:
Witness motioning by [waving] her two (2)
hands, left and right.
PROSECUTOR MONTEMAYOR:
Q: And at the same time pointed to Atty. Acejas?
A: Yes, sir.
Q: And your husband gave the envelope to Atty.
Acejas?
A: Yes, sir.
Q: And Atty. Acejas, in turn, handed the said
envelope to whom?
A: Expedito Perlas, sir.
xxxxxxxxx
Q: After that, what happened?
A: Mr. Perlas put the money on his side in
between him and Atty. Acejas, sir.
Q: And then, what happened?
WITNESS:
A: After the money was placed where it was, we
were surprised, I think, it happened in
just seconds[.] Mr. Vladimir Hernandez
immediately left and then all of a
sudden somebody came and picked up
the envelope, sir.
PROSECUTOR MONTEMAYOR:
Q: Do you know the identity of that somebody
who picked up the envelope?
xxxxxxxxx
A: Victoriano, sir.[46]
Acejas failed to justify why he received the payoff money. It would be
illogical to sustain his contention that the envelope represented the balance
of his firms legal fees. That it was given to Hernandez immediately after the
return of the passport leads to the inescapable conclusion that the money
was a consideration for the return. Moreover, Acejas should have kept the
amount if he believed it to be his. The Court agrees with the Sandiganbayans
pronouncement on this point:
x x x. If he believed that the brown envelope contained
the balance of the acceptance fee, how come he passed it
to Perlas? His passing the brown envelope to Perlas only
proves that the same did not contain the balance of the
acceptance fee; otherwise, he should have kept and
retained it. Moreover, the three prosecution witnesses
testified that the brown envelope was being given to
Hernandez who refused to accept the same. This further
shows that the brown envelope was not for the balance of
the acceptance fee because, if it were, why was it given to
Hernandez.
 xxxxxxxxx

Acejas defense was further weakened by the fact that his Acejas, however, failed to act for or represent the interests of his
testimony as to why he left immediately after the brown
envelope was given to him was uncorroborated.He should clients. He knew of the payoff, but did nothing to assist or protect their
have presented accused Victoriano to corroborate his
testimony since it was the latter who allegedly called him
rights, a fact that strongly indicated that he was to get a share. Thus, he
and caused him to leave their table.This, he did not
do. The ineluctable conclusion is that he was, indeed, in
cahoots with his co-accused.[47] received the money purporting to be the payoff,

even if he was not involved in the entrapment operation. The facts revealed

that he was a conspirator.

Lawyers Duty

Acejas alleges that the Sandiganbayan failed to appreciate his lawyer-client The Court reminds lawyers to follow legal ethics[50] when confronted by

relationship with the complainants. He was supposedly only acting in their public officers who extort money. Lawyers must decline and report the

best interest[48] and had the right to be present when the passport was to matter to the authorities.[51] If the extortion is directed at the client, they

be returned.[49] must advise the client not to perform any illegal act. Moreover, they must

report it to the authorities, without having to violate the attorney-client

True, as a lawyer, it was his duty to represent his clients in dealing privilege.[52] Naturally, they must not participate in the illegal act.[53]

with other people. His presence at Diamond Hotel for the scheduled return

of the passport was justified. This fact, however, does not support his Acejas did not follow these guidelines. Worse, he conspired with the

innocence extortionists.

Instigation
Also futile is the contention of petitioners that Pelingon instigated the
situation to frame them into accepting the payoff. [54] Instigation is the
employment of ways and means to lure persons into the commission of an
offense in order to prosecute them.[55] As opposed to entrapment, criminal
intent originates in the mind of the instigator.[56]
There was no instigation in the present case, because the chain of
circumstances showed an extortion attempt. In other words, the criminal
intent originated from petitioners, who had arranged for the payoff.
During the cross-examination of Bethel Grace Aoyagi, pertinent
was Associate Justice Escareal clarifying question as follows:
AJ ESCAREAL:
[Q:] Did Mr. Hernandez say anything when he
returned the passport to your husband?
A: He did not say anything except that he
instructed [the] group to abide with the
agreement that upon handing of the
passport, the money would also be
given immediately (magkaliwaan).[57]
Alleged Discrepancies
According to Acejas, Pelingons testimonies given in his Complaint-Affidavit,
Supplemental-Affidavit, inquest testimony, testimony in court, and two
Affidavits of Desistance were contradictory.[58] He cites these particular
portions of Pelingons Affidavit:
5. That having been enlightened of the case,
and conscious that I might be prosecuting innocent men, I
have decided on my own disposition, not to further testify
against any of the accused in the Sandiganbayan or in any
court or tribunal, regarding the same cause of action.
6. That this affidavit of desistance to further
prosecute is voluntarily executed, and that no reward,
promise, consideration, influence, force or threat was
executed to secure this affidavit.[59]
Pelingon testified that he had executed the Affidavit of Desistance
because of a threat to his life.[60] He did not prepare the Affidavit; neither
was it explained to him. Allegedly, his true testimony was in the first

Complaint-Affidavit that he had executed.[61]

Suppression of Evidence

By appearing and testifying during the trial, he effectively Acejas further raises the issue of suppression of evidence. Aoyagi, from

repudiated his Affidavit of Desistance. An affidavit of desistance must be whom the money was supposedly demanded, should have been presented

ignored when pitted against positive evidence given on the witness stand.[62] by the prosecution as a witness.[66]

Acejas has failed to identify the other material points that were The discretion on whom to present as prosecution witnesses falls on the

allegedly inconsistent. The Court therefore adopts the Sandiganbayans People.[67] The freedom to devise a strategy to convict the accused belongs

finding that these were minor details that were not indicative of the lack of to the prosecution.[68] Necessarily, its decision on which evidence, including

credibility of the prosecution witnesses.[63] People v. Eligino[64] is in point: which witnesses, to present cannot be dictated by the accused or even by
x x x. While witnesses may differ in their
recollections of an incident, it does not necessarily follow the trial court.[69] If petitioners believed that Takao Aoyagis testimony was
from their disagreement that all of them should be
disbelieved as liars and their testimony completely important to their case, they should have presented him as their witness. [70]
discarded as worthless. As long as the mass of testimony
jibes on material points, the slight clashing statements
neither dilute the witnesses credibility nor the veracity of
their testimony. Thus, inconsistencies and contradictions Finally, Acejas claims that his Comment/Objection to the
referring to minor details do not, in any way, destroy the
credibility of witnesses, for indeed, such inconsistencies
prosecutions Formal Offer of Evidence was not resolved by the
are but natural and even enhance credibility as these
discrepancies indicate that the responses are honest and
unrehearsed.[65] Sandiganbayan.[71] In that Comment/Objection, he had noted the lateness

in the filing of the Formal Offer of Evidence.

 crime. Fourth, both the confiscation and the return of the passport were

It may readily be assumed that the Sandiganbayan admitted the made in the exercise of official duties.

prosecutions Formal Offer of Evidence upon the promulgation of its

Decision. In effect, Acejas Comment/Objection was deemed immaterial. It For taking direct part in the execution of the crime, Hernandez and Acejas

could not overrule the finding of guilt. Further, it showed no prayer that the are liable as principals.[74] The evidence shows that the

Sandiganbayan needed to act upon.[72] parties conspired to extort money from Spouses Aoyagi. A conspiracy exists

Finally we reiterate that, as a rule, factual findings of the Sandiganbayan are even if all the parties did not commit the same act, if the participants

conclusive upon this Court.[73] We are convinced that these were clearly performed specific acts that indicated unity of purpose in accomplishing a

based on the evidence adduced in this case. criminal design.[75] The act of one is the act of all.

In sum, we find that the prosecution proved the elements of direct WHEREFORE, the Petitions are DENIED, and the assailed Decision

bribery. First, there is no question that the offense was committed by a and Resolutions AFFIRMED. Costs against petitioners.

public officer.BID Agent Hernandez extorted money from the Aoyagi

spouses for the return of the passport and the promise of assistance in SO ORDERED.

procuring a visa. Petitioner Acejas was his co-conspirator. Second, the

offenders received the money as payoff, which Acejas received for the
A.C. No. 6057 June 27, 2006
group and then gave to Perlas. Third, the money was given in consideration

of the return of the passport, an act that did not constitute a

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. Stier’s 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
Complainant averred that respondent’s 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
complainant’s counsel, Atty. Bonifacio A. Alentajan,7 because respondent
refused to act as complainant’s 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 IBP’s 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 respondent’s
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
respondent’s 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
complainant’s name. But respondent provided "some safeguards" by
preparing several documents,13 including the Occupancy Agreement, that
would guarantee Stier’s recognition as the actual owner of the property
despite its transfer in complainant’s 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.
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 respondent’s 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
 IN THE MATTER OF THE LETTER-COMPLAINT OF ATTY. CARPIO,
EN BANC LEONARD S. DE VERA DATED MAY 18, 2005 TO
MARTINEZ,
FORTHWITH DENY/DISAPPROVE THE IBP RESOLUTION
UNJUSTLY, ILLEGALLY, ARBITRARILY, AND ABRUPTLY CORONA,
ZOILO ANTONIO VELEZ, A.C. No. 6697 REMOVING HIM FROM THE BOARD OF GOVERNORS OF
CARPIO MORALES,
Complainant, THE IBP FOR ABSOLUTE LACK OF BASIS AND FOR
FLAGRANT DENIAL OF DUE PROCESS. CALLEJO,

AZCUNA,

TINGA,
- versus -
CHICO-NAZARIO,

GARCIA and

Bar Matter No. 1227 VELASCO JJ.

ATTY. LEONARD S. DE VERA,
Promulgated:
Respondent.

x-------------------------x
July 25, 2006

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
RE: OATH-TAKING OF ATTY. LEONARD S. DE VERA,
INCOMING PRESIDENT OF THE INTEGRATED BAR OF A.M. No. 05-5-15-SC
THE PHILIPPINES
Present:
DECISION
x-------------------------x
PANGANIBAN, C. J.,

IN THE MATTER OF THE REMOVAL OF ATTY. LEONARD PUNO,

Per Curiam:
S. DE VERA FROM THE IBP BOARD OF GOVERNORS AS QUISUMBING,
EXECUTIVE VICE PRESIDENT AND GOVERNOR
YNARES-SANTIAGO,

SANDOVAL-GUTIERREZ,

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 letter-request 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) respondents alleged
misrepresentation in
concealing the suspension
order rendered against him by
the State Bar of California; and
2) 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 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 By-Laws 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
President. A.M. No. 05-5-15-SC, on the other hand, is a letter-report dated
Atty. Leonard De Vera). Respondent prayed that the
instant administrative complaint be dismissed following 19 May 2005 of IBP National President Jose Anselmo I. Cadiz (IBP President
the principle of res judicata.
Cadiz) furnishing this Court with the IBPs Resolution, dated 13 May 2005,
On 15 June 2005, both parties appeared before removing Atty. De Vera as member of the IBP Board and as IBP EVP, for
the Office of the Bar Confidant for presentation of evidence committing acts inimical to the IBP Board and the IBP in general.[2]
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.
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]

Bar Matter No. 1227

A.M. No. 05-5-15-SC 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]

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
On 19 January 2005, IBP President Cadiz informed this Court of the decision as member of the IBP Board for having committed acts which were inimical
taken by the IBP Board to withdraw the afore-mentioned Petition. Attached to the IBP Board and the IBP.[9]
to his letter was a copy of the IBP Boards 14 January 2005 Resolution.[5]
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
On 15 April 2005, Bar Matter No. 1227, pertaining to Atty. de Veras request remove Atty. de Vera as member of the IBP Board of Governors and as IBP
for oathtaking as National President, was filed. The same was subsequently Executive Vice President.[10] Quoted hereunder is the dispositive portion of
consolidated with A.C. No. 6697, the disbarment case filed against Atty. de said Resolution:
[6]
Vera.
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
On 22 April 2005, a plenary session was held at the 10th National IBP
the IBP Board of Governors and the IBP, to wit:
Convention at the CAP-Camp John Hay Convention Center, Baguio City. It
1. For making untruthful
was at this forum where Atty. de Vera allegedly made some untruthful
statements, innuendos and blatant lies
statements, innuendos and blatant lies in connection with the IBP Boards in public about the Supreme Court and
members of the IBP Board of Governors,
Resolution to withdraw the Petition questioning the legality of Republic Act
during the Plenary Session of the IBP
No. 9227.[7] 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
On 10 May 2005, this Court issued a Temporary Restraining Order (TRO) Board of Governors to withdraw the
PETITION docketed as Integrated Bar of
enjoining Atty. de Vera from assuming office as IBP National President.[8] 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
On 12 May 2005, IBP Gov. Romulo A. Rivera wrote IBP National of A Temporary Restraining Order or
Writ of Preliminary Injunction, S.C.-R.
President Cadiz a letter wherein he prayed for the removal of Atty. de Vera
165108, was due to influence and
pressure from the Supreme Court of
the Philippines;
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
10thNational Convention of Lawyers in
Baguio City;
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]

4. For instigating and

provoking some IBP chapters to
embarrass and humiliate the IBP Board
In the said letter, Atty. de Vera strongly and categorically denied having
of Governors in order to coerce and
compel the latter to pursue the committed acts inimical to the IBP and its Board. He alleged that on the basis
aforesaid PETITION;
of an unverified letter-complaint filed by IBP Governor Rivera, the IBP Board
5. For falsely accusing the voted to expel him posthaste, without just cause and in complete disregard
IBP National President, Jose Anselmo I.
of even the minimum standards of due process. Pertinent portions of his
Cadiz, during the Plenary Session of the
10th National Convention in Baguio City letter read:
of withholding from him a copy of
Supreme Court Resolution, dated 25
January 2005, granting the withdrawal
of the PETITION, thereby creating the It is evident that the Board of Governors has
wrong impression that the IBP National committed a grave and serious injustice against me
President deliberately prevented him especially when, as the incumbent Executive Vice President
of the IBP, I am scheduled to assume my position as I could be questioned. My
National President of the IBP on July 1, 2005. x x x request was denied.

I was denied the very basic rights of due process 5. The denial of my right to
recognized by the Supreme Court even in administrative present witnesses on my
cases: behalf.

1. The denial of the right to 6. The denial of my right to an

answer the impartial judge. Governor
charges formally or in writing. Rivera was my accuser,
The complaint against me was prosecutor, and judge all at
in writing. the same time.

2. The denial of the right 7. Gov. Riveras prejudgment

to answer the charges within of my case becomes even more
a reasonable period of evident because when his
time after receipt of the motion to expel me was lost in
complaint. a 5-3 votes (due to his
inhibition to vote), Gov. Rivera
asked for another round of
3. The denial of the right to a voting so he can vote to
fair hearing. support his own complaint and
motion to expel
[13]
me. (Emphasis and
underscoring in original.)
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 On 27 May 2005, the IBP Board responded to the 18 May
offered to testify under oath so 2005 letter of Atty. de Vera.[14] 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:
(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.
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 the EDSA 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
[17]
declared as IBP EVP.
On 17 June 2005, Atty. de Vera protested against the election of
Atty. Santiago.[18] On 20 June 2005, Atty. Santiago voluntarily relinquished
[19]
the EVP position through a letter addressed to the IBP Board. 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 on 28
[22]
June 2005, Atty. de Vera protested the election of Atty. Salazar.
[23]
In his Extended Comment 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 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 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 By-Laws 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 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;
(ii) 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;
(iii) 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;
(iv) 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;
(v) 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;
(vi) 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
(vii) Atty. Salazar was validly elected as IBP EVP and,
thus, should now be allowed to take his oath as
IBP National President.[25]
The Courts Ruling
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
2) 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).
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
the California 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 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 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 Delos Reyes (Administrative
Matter No. MTJ-02-1404, 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
constitute a bar to the filing of Adm. Case No. 6697.Although the parties in
cause of action. Res judicata is based on
the ground that the party to be affected, the present administrative case and in Adm. Case No. 6052 are identical,
or some other with whom he is in privity,
their capacities in these cases and the issues presented therein are not the
has litigated the same matter in the
former action in a court of competent same, thereby barring the application of res judicata.
jurisdiction, and should not be permitted
to litigate it again.
In order that the principle of res judicata may be made to apply,
This principle frees the parties from four essential conditions must concur, namely: (1) the judgment sought to
undergoing all over again the rigors of
unnecessary suits and repetitious bar the new action must be final; (2) the decision must have been rendered
trials. At the same time, it prevents the by a court having jurisdiction over the subject matter and the parties; (3) the
clogging of court dockets.Equally
important, res judicata stabilizes rights disposition of the case must be a judgment or order on the merits, and (4)
and promotes the rule of law. there must be between the first and second action identity of parties,

In the instant administrative case, it is clear that identity of subject matter, and identity of causes of action.[29] In the absence
the issues raised by the complainant had already been of any one of these elements, Atty. de Vera cannot argue res judicata in his
resolved by this Court in an earlier administrative case. The
complainants contention that the principle of res favor.
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 It is noteworthy that the two administrative cases involve different subject
and/or disbarment should be given least credence. It is matters and causes of action. In Adm. Case No. 6052, the subject matter was
worthy to note that while the instant administrative
complaint is denominated as one for suspension and/or the qualification of Atty. de Vera to run as a candidate for the position of IBP
disbarment, it prayed neither the suspension nor the Governor for Eastern Mindanao. In the present administrative complaint,
disbarment of the respondent but instead merely sought
to enjoin the respondent from assuming office as IBP the subject matter is his privilege to practice law. In the first administrative
National President.[28] case, complainants cause of action was Atty. de Veras alleged violation or
circumvention of the IBP By-laws. In the present administrative case, the
Contrary to the findings of the Bar Confidant, Adm. Case No.
primary cause of action is Atty. de Veras alleged violation of lawyers oath
6052 entitled, In Re: Petition to Disqualify Atty. Leonard de Vera, on Legal
and the Code of Professional Responsibility.
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

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.
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 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 three years as he surrendered his license to practice law before his case
or disbarred under the facts of the case and the evidence submitted by could be taken up by the Supreme Court of California.
complainant.
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
The recommendation of the
hearing officer of the State Bar rise to his suspension are not grounds for disbarment and suspension in this
of California, standing alone, jurisdiction. Judgment of suspension against a Filipino lawyer may
is not proof of malpractice.
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
In the case of the Suspension From The Practice of Law In The
unethical acts as lawyer.
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
The Maquera ruling is consistent with Rule 39, Section 48, of the
from the practice of law in said foreign jurisdiction, can be sanctioned as
Rules of Court which provides:
member of the Philippine Bar for the same infraction committed in the
foreign jurisdiction.
Sec. 48. Effect of foreign judgments or final orders. - The
effect of a judgment or final order of a tribunal of a foreign
We take the issue in Atty. Maquera one notch higher in the case of
country, having jurisdiction to render the judgment or final
Atty. de Vera who was admitted to the practice of law in a foreign order is as follows:
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
xxxx
case of Atty. Maquera, no final judgment for suspension or disbarment was
meted against Atty. de Vera despite a recommendation of suspension of
 (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.
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
Now, the undisputed facts:
court or disciplinary agency shall be prima facie evidence
of the ground for disbarment or suspension.[33]

1. An administrative case against Atty. de Vera was filed before the

Disciplinary action against a lawyer is intended to protect the court
State Bar of California, docketed then as Adm. Case No. 86-0-
and the public from the misconduct of officers of the court and to protect
18429. It arose from an insurance case Atty. de Vera handled
the administration of justice by requiring that those who exercise this
involving Julius Willis, III who figured in an automobile accident in
important function shall be competent, honorable and reliable men in
1986. Atty. de Vera was authorized by the elder Willis (father of
whom courts and clients may repose confidence.[34] The statutory
Julius who was given authority by the son to control the case
enunciation of the grounds for disbarment on suspension is not to be taken
because the latter was then studying in San Diego California) for
as a limitation on the general power of courts to suspend or disbar a
the release of the funds in settlement of the case. Atty. de Vera
lawyer. The inherent power of the court over its officers cannot be
received a check in settlement of the case which he then deposited
restricted.[35]
to his personal account;[39]

Malpractice ordinarily refers to any malfeasance or dereliction of

2. The Hearing referee in the said administrative case
duty committed by a lawyer. Section 27 gives a special and technical
recommended that Atty. de Vera be suspended from the practice
meaning to the term Malpractice.[36] That meaning is in consonance with the
of law for three years;[40] and
elementary notion that the practice of law is a profession, not a business. [37]

3. Atty. de Vera resigned from the California Bar which resignation

Unprofessional conduct in an attorney is that which violates the
was accepted by the Supreme Court of California.[41]
rules on ethical code of his profession or which is unbecoming a member of
that profession.[38]

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.
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 quasi-judicial 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. A lawyer shall account for all money or
property collected or received for or from the client.
Rule 16.02. A lawyer shall keep the funds of each client
separate and apart from his own and those of others kept
by him.
In Espiritu v. Ulep[45] we held that
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, guilty of betrayal of public confidence in the legal
he shall account for all money or property collected or profession. Those who are guilty of such infraction may be
received for or from the client. Even more specific is the disbarred or suspended indefinitely from the practice of
Canon of Professional Ethics: law. (Emphases supplied.)

The lawyer should refrain from

any action whereby for his personal
benefit or gain he abuses or takes In herein case, as it is admitted by Atty. de Vera himself that he used
advantage of the confidence reposed in
his clients money for personal use, he has unwittingly sealed his own fate
him by his client.
since this admission constitutes more than substantial evidence of
malpractice. Consequently, Atty. de Vera now has the burden of rebutting
Money of the client or collected the evidence which he himself supplied.
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
In his defense, Atty. de Vera claims that he was duly authorized by the elder
with his own or be used by him.
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
Consequently, a lawyer's failure to return upon before the filing of the administrative case against him in the State Bar of
demand the funds or property held by him on behalf of his
client gives rise to the presumption that he has California.[46]
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 Aside from these self-serving statements, however, we cannot
legal profession and deserves punishment. 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
Lawyers who misappropriate the funds entrusted
to them are in gross violation of professional ethics and are
 When the integrity of a member of the bar is challenged, it
cannot be denied that the respect of litigants to the profession is inexorably
is not enough that he denies the charges against him; he
must meet the issue and overcome the evidence against diminished whenever a member of the profession betrays their trust and
him. He must show proof that he still maintains that degree confidence.[48] Respondent violated his oath to conduct himself with all
of morality and integrity which at all times is expected of
good fidelity to his client.
him.

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
Atty. de Vera cannot rely on the statement made by the hearing officer that
caution.[49] Where any lesser penalty can accomplish the end desired,
the elder Willis had indeed testified that he expected de Vera might use the
disbarment should not be decreed.
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
In Mortera v. Pagatpatan,[50] we imposed upon Atty. Pagatpatan two years
use the money for a few days was not so much an acknowledgment of
suspension from his practice of law for depositing the funds meant for his
consent to the use by Atty. de Vera of his clients funds as it was an
client to his personal account without the latters knowledge. In Reyes v.
acceptance of the probability that Atty. de Vera might, indeed, use his
Maglaya;[51] Castillo v. Taguines;[52] Espiritu v. Atty. Cabredo IV,[53] the
clients funds, which by itself did not speak well of the character of Atty. de
respondents were meted one year suspension each for failing to remit to
Vera or the way such character was perceived.
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
In the instant case, the act of Atty. de Vera in holding on to his clients money
respondent for failure to remit to his client the amount of the measly sum
without the latters acquiescence is conduct indicative of lack of integrity and
of P4,344.00 representing the amount received pursuant to a writ of
propriety. It is clear that Atty. de Vera, by depositing the check in his own
execution. Considering the amount involved here US$12,000.00, we believe
account and using the same for his own benefit is guilty of deceit,
that the penalty of suspension for two (2) years is appropriate.
malpractice, gross misconduct and unethical behavior. He caused dishonor,
not only to himself but to the noble profession to which he belongs. For, it
Transferring IBP membership
transferring to an IBP chapter that -- based on the rotation rule will produce
to a chapter where the lawyer
is not a resident of is not a the next IBP EVP who will automatically succeed to the National Presidency
ground for his suspension or for the next term. Our Code of Professional Responsibility as well as the
disbarment
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.

Complainant insists that Atty. de Veras transfer of membership from

the Pasay, Paraaque, Las Pias and Muntinlupa (PPLM) Chapter to the Agusan Bar Matter No. 1227

del Sur IBP Chapter is a circumvention of the rotation rule as it was made for Administrative Matter No. 05-5-15-SC
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.
To resolve Bar Matter No. 1227 and Administrative Matter No. 05-5- 15-SC,

the following issues must be addressed:

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 I. Whether the IBP Board of Governors acted with grave
the post of IBP Governor as the same is allowed under Section 19 of the IBP abuse of discretion in removing Atty. de Vera as Governor and
EVP of the IBP on 13 May 2005.
By-Laws with the qualification only that the transfer be made not less than
three months immediately preceding any chapter election.
i. Whether the IBP Board of Governors
complied with administrative due process in
removing Atty. de Vera.
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 ii. Whether the IBP removed Atty. De
Vera for just and valid cause.
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
 II. Whether Governor Salazar was validly elected as EVP of the
IBP on 25 June 2005, and can consequently assume the
In case of any vacancy in the office of Governor
Presidency of the IBP for the term 2005-2007.
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 IBP Board observed due the term. (Emphasis supplied)
process in its removal of Atty.
de Vera as IBP Governor

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
We start the discussion with the veritable fact that the IBP Board is
remaining members of the Board, subject to the approval of this Court.
vested with the power to remove any of its members pursuant to Section
44, Article VI of the IBP By-Laws, 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 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 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]
 For the record, of the nine governors comprising the IBP Board, six
voted for Atty. de Veras expulsion (including Atty. Rivera) while 3 voted
The right to cross-examine is not an indispensable aspect of due
against it (including Atty. de Vera).
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
Section 44 (second paragraph) of the IBP By-Laws provides:
placed subject to the approval of the Supreme Court all witnessed Atty. de
Veras actuations in the IBP National Convention in question.
Any member of the Board, elective or otherwise,
may be removed for cause, including three consecutive
absences from Board meetings without justifiable excuse,
It is undisputed that Atty. de Vera received a copy of the complaint against
by resolution adopted by two-thirds of
him and that he was present when the matter was taken up. From the the remaining members of the Board, subject to the
transcript of the stenographic notes of the 13 May 2005 meeting wherein approval of the Supreme Court. (Emphasis supplied.)

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.

Under the rules, a resolution for expulsion of an IBP Governor is done via a
Atty. de Vera, however, additionally questions the fact that Atty. Rivera, who
resolution adopted by 2/3 of the remaining members. The phrase remaining
authored the complaint against him, also voted for his expulsion making him
members refers to the members exclusive of the complainant member and
accuser, prosecutor and judge at the same time. Atty. de Vera likewise
the respondent member. The reason therefore is that such members are
laments the fact that Atty. Rivera initially inhibited himself from voting but
interested parties and are thus presumed to be unable to resolve said motion
when this resulted in the defeat of his motion for lack of the necessary 2/3
impartially. This being the case, the votes of Attys. Rivera and de Vera should
vote, he agreed to another round of voting and that, this time, he voted in
be stricken-off which means that only the votes of the seven remaining
favor of his motion.
members are to be counted. Of the seven remaining members, five voted for
expulsion while two voted against it which still adds up to the 2/3 vote
requirement for expulsion.
 After weighing the arguments of the parties and in keeping with

The IBP Board removed Atty. the fundamental objective of the IBP to discharge its public responsibility
de Vera as IBP Governor for more effectively, we hereby find that Atty. de Veras removal from the IBP
just and valid cause
Board was not capricious or arbitrary.

Indubitably, conflicts and disagreements of varying degrees of

All the concerned parties to this case agree that what constitutes intensity, if not animosity, are inherent in the internal life of an organization,
cause for the removal of an IBP Governor has not been defined by Section but especially of the IBP since lawyers are said to disagree before they agree.
44 of the IBP By-Laws albeit it includes three consecutive absences from
However, the effectiveness of the IBP, like any other organization, is diluted
Board meetings without justifiable excuse. Thus, the IBP Board argues that
if the conflicts are brought outside its governing body for then there would
it is vested with sufficient power and authority to protect itself from an
be the impression that the IBP, which speaks through the Board of
intractable member whose removal was caused not by his disagreement
Governors, does not and cannot speak for its members in an authoritative
with the IBP Board but due to various acts committed by him which the IBP
fashion. It would accordingly diminish the IBPs prestige and repute with the
Board considered as inimical to the IBP Board in particular and the IBP in
lawyers as well as with the general public.
general.

As a means of self-preservation, internecine conflicts must thus be adjusted

Atty. de Vera, on the other hand, insists that speaking in
within the governing board itself so as to free it from the stresses that
disagreement with the Resolution of the Board during the Conventions
invariably arise when internal cleavages are made public.
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
The doctrine of majority rule is almost universally used as a mechanism for
recognized by the IBP Board.
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 The removal of Atty. de Vera
board are deemed to implicitly contract that the will of the majority shall as member of the Board of
Governors ipso facto meant
govern in matters within the authority of the board.[63]
his removal as EVP as well

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
The removal of Atty. de Vera as member of the Board of Governors ipso
detrimental to the role of the IBP Board as the governing body of the IBP.
facto meant his removal as EVP as well. Section 47, Article VII of the By-Laws
When the IBP Board is not seen by the bar and the public as a cohesive unit, of the IBP provides:
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
SEC. 47. National Officers. The Integrated Bar of
the administration of justice.
the Philippines shall have a President and Executive Vice
President to be chosen by the Board of Governors from
In view of the importance of retaining group cohesiveness and unity, the
among nine (9) regional governors, as much as
expulsion of a member of the board who insists on bringing to the public his practicable, on a rotation basis. x x x
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. 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
Indeed, when a member of a governing body cannot accept the voice of the would be contrary to Section 47 of the IBP By-Laws.
majority, he should resign therefrom so that he could criticize in public the
majority opinion/decision to his hearts content; otherwise, he subjects
The Court will not interfere
himself to disciplinary action by the body.
with the Resolution of the IBP
Board to remove Atty. de Vera
overcome by substantial evidence and actually declared invalid by the
since it was rendered without
grave abuse of discretion 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.
While it is true that the Supreme Court has been granted an extensive power
There is no question that the IBP Board has the authority to remove its
of supervision over the IBP,[64] it is axiomatic that such power should be
members as provided in Article VI, Section 44[67] of the IBP By-Laws. Issue
exercised prudently. The power of supervision of the Supreme Court over
arises only as to whether the IBP Board abused its authority and discretion
the IBP should not preclude the IBP from exercising its reasonable discretion
in resolving to remove Atty. de Vera from his post as an IBP Governor and
especially in the administration of its internal affairs governed by the
EVP. As has been previously established herein, Atty. de Veras removal from
provisions of its By-Laws. The IBP By-Laws were precisely drafted and
the IBP Board was in accordance with due process and the IBP Board acted
promulgated so as to define the powers and functions of the IBP and its
well within the authority and discretion granted to it by its By-Laws. There
officers, establish its organizational structure, and govern relations and
being no grave abuse of discretion on the part of the IBP Board, we find no
transactions among its officers and members. With these By-Laws in place,
reason to interfere in the Boards resolution to remove Atty. de Vera.
the Supreme Court could be assured that the IBP shall be able to carry on its
The election of Atty. Salazar by
day-to-day affairs, without the Courts interference.
the IBP Board as IBP EVP in
replacement of Atty. De Vera
It should be noted that the general charge of the affairs and activities of the
was conducted in accordance
IBP has been vested in the Board of Governors. The members of the Board with the authority granted to
are elective and representative of each of the nine regions of the IBP as the Board by the IBP By-Laws

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 In the same manner, we find no reason to disturb the action taken
resolutions of the IBP Board deserve to be accorded the disputable by the 2003-2005 IBP Board of Governors in holding a special election to fill-
presumption[66] of validity, which shall continue, until and unless it is 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.
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:
 xxxx

(Emphasis Supplied)

ORDER

In Bar Matter 491, it is clear that it is the position of IBP EVP which
xxxx is actually rotated among the nine Regional Governors. The rotation with
respect to the Presidency is merely a result of the automatic succession rule

3. The former system of having the IBP President and of the IBP EVP to the Presidency. Thus, the rotation rule pertains in
Executive Vice-President elected by the Board of particular to the position of IBP EVP, while the automatic succession rule
Governors (composed of the governors of the nine [9] IBP
pertains to the Presidency. The rotation with respect to the Presidency is
regions) from among themselves (as provided in Sec. 47,
Art. VII, Original IBP By-Laws) should be restored. The right but a consequence of the automatic succession rule provided in Section 47
of automatic succession by the Executive Vice-President of the IBP By-Laws.
to the presidency upon the expiration of their two-year
term (which was abolished by this Court's resolution
dated July 9, 1985 in Bar Matter No. 287) should be as it is
hereby restored. 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
4. At the end of the President's two-year term, the regions had already produced an EVP and, thus, the rotation was
Executive Vice-President shall automatically succeed to
the office of president. The incoming board of governors completed. It is only unfortunate that the supervening event of Atty. de
shall then elect an Executive Vice-President from among
Veras removal as IBP Governor and EVP rendered it impossible for him
themselves. The position of Executive Vice-President
shall be rotated among the nine (9) IBP regions.One who to assume the IBP Presidency. The fact remains, however, that the
has served as president may not run for election as
Executive Vice-President in a succeeding election until rotation rule had been completed despite the non-assumption by Atty.
after the rotation of the presidency among the nine (9) de Vera to the IBP Presidency.
regions shall have been completed; whereupon, the
rotation shall begin anew.
 Moreover, the application of the rotation rule is not a license

to disregard the spirit and purpose of the automatic succession rule, but
It will also be inconsistent with the purpose and spirit of the
should be applied in harmony with the latter. The automatic succession
automatic succession rule if the EVP for the term 2003-2005 will be
rule affords the IBP leadership transition seamless and enables the new
elected exclusively by the members of the House of Delegates of
IBP National President to attend to pressing and urgent matters without
the Eastern Mindanao region. This Court notes that the removal of Atty.
having to expend valuable time for the usual adjustment and leadership
De Vera in 13 May 2005 was about a month before the expiration of the
consolidation period. The time that an IBP EVP spends assisting a sitting
term of office of the 2003-2005 Board of Governors. Hence, the
IBP President on matters national in scope is in fact a valuable and
replacement Governor would not have been able to serve in a national
indispensable preparation for the eventual succession. It should also be
capacity for two years prior to assuming the IBP Presidency.
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
In any case, Section 47 of the IBP Rules uses the phrase as
Governors, who are serving in a national capacity, and not from the
much as practicable to clearly indicate that the rotation rule is not a
members at large. It is intrinsic in the IBP By-Laws that one who is to
rigid and inflexible rule as to bar exceptions in compelling and
assume the highest position in the IBP must have been exposed to the
exceptional circumstances.
demands and responsibilities of national leadership.

It would therefore be consistent with the purpose and spirit of

It is in view of the foregoing that the argument advanced by
the automatic succession rule for Governor Salazar to assume the post
Atty. De Vera that the IBP national presidency should be assumed by a
of IBP President. By electing the replacement EVP from among the
nominee from Eastern Mindanao region from where he comes, can not
members of the 2003-2005 Board of Governors, the IBP benefits from
hold water. It would go against the intent of the IBP By-Laws for such a
the experience of the IBP EVP of 2003-2005 in this case, Governor
nominee would be bereft of the wealth of experience and the
Salazar who would have served in a national capacity prior to his
perspective that only one who is honed in service while serving in a
assumption of the highest position.
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;
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.
FIRST DIVISION
PEDRO L. LINSANGAN, A.C. No. 6672
Complainant,
Present:
PUNO, C.J., Chairperson,
CARPIO,
- v e r s u s - CORONA,
LEONARDO-DE CASTRO and
BERSAMIN, JJ.
collection on their claims.[4] To induce them to hire his services, he
ATTY. NICOMEDES TOLENTINO,
persistently called them and sent them text messages.
Respondent. Promulgated:

September 4,
2009
To support his allegations, complainant presented the sworn affidavit[5] of

James Gregorio attesting that Labiano tried to prevail upon him to sever his
x-----------------------------------------x
lawyer-client relations with complainant and utilize respondents services

instead, in exchange for a loan of P50,000. Complainant also attached

RESOLUTION
respondents calling card:[6]

CORONA, J.:
Front

NICOMEDES TOLENTINO

This is a complaint for disbarment[1] filed by Pedro Linsangan of the LAW OFFFICE

Linsangan Linsangan & Linsangan Law Office against Atty. Nicomedes CONSULTANCY & MARITIME SERVICES

W/ FINANCIAL ASSISTANCE
Tolentino for solicitation of clients and encroachment of professional

services.
Fe Marie L. Labiano
Complainant alleged that respondent, with the help of paralegal Fe Marie Paralegal

Labiano, convinced his clients[2] to transfer legal representation.

Respondent promised them financial assistance[3] and expeditious 1st MIJI Mansion, 2nd Flr. Rm. M-01 Tel: 362-7820
 6th Ave., cor M.H. Del Pilar Fax: (632) 362-7821
professional practice of complainant, violating Rule 8.02[10] and other
Grace Park, Caloocan City Cel.: (0926) 2701719
canons[11] of the Code of Professional Responsibility (CPR). Moreover, he

contravened the rule against soliciting cases for gain, personally or through

paid agents or brokers as stated in Section 27, Rule 138[12] of the Rules of

Back Court. Hence, the CBD recommended that respondent be reprimanded with
SERVICES OFFERED: a stern warning that any repetition would merit a heavier penalty.
CONSULTATION AND ASSISTANCE
TO OVERSEAS SEAMEN
REPATRIATED DUE TO ACCIDENT, We adopt the findings of the IBP on the unethical conduct of respondent but
INJURY, ILLNESS, SICKNESS, DEATH
AND INSURANCE BENEFIT CLAIMS we modify the recommended penalty.
ABROAD.

(emphasis supplied) The complaint before us is rooted on the alleged intrusion by respondent

into complainants professional practice in violation of Rule 8.02 of the

Hence, this complaint.
CPR. And the means employed by respondent in furtherance of the said

Respondent, in his defense, denied knowing Labiano and authorizing the misconduct themselves constituted distinct violations of ethical rules.

printing and circulation of the said calling card.[7]

Canons of the CPR are rules of conduct all lawyers must adhere to, including

The complaint was referred to the Commission on Bar Discipline (CBD) of the manner by which a lawyers services are to be made known. Thus, Canon

the Integrated Bar of the Philippines (IBP) for investigation, report and 3 of the CPR provides:

recommendation.[8]

CANON 3 - A LAWYER IN MAKING KNOWN HIS LEGAL

Based on testimonial and documentary evidence, the CBD, in its report and SERVICES SHALL USE ONLY TRUE, HONEST, FAIR,
DIGNIFIED AND OBJECTIVE INFORMATION OR
recommendation,[9] found that respondent had encroached on the STATEMENT OF FACTS.
Time and time again, lawyers are reminded that the practice of law is a
RULE 1.03. A LAWYER SHALL NOT, FOR ANY CORRUPT
profession and not a business; lawyers should not advertise their talents as MOTIVE OR INTEREST, ENCOURAGE ANY SUIT OR
PROCEEDING OR DELAY ANY MANS CAUSE.
merchants advertise their wares.[13] To allow a lawyer to advertise his talent

or skill is to commercialize the practice of law, degrade the profession in the

publics estimation and impair its ability to efficiently render that high
This rule proscribes ambulance chasing (the solicitation of almost any kind
character of service to which every member of the bar is called. [14]
of legal business by an attorney, personally or through an agent in order to

gain employment)[17] as a measure to protect the community from barratry

Rule 2.03 of the CPR provides:
and champerty.[18]

RULE 2.03. A LAWYER SHALL NOT DO OR PERMIT TO BE Complainant presented substantial evidence[19] (consisting of the sworn
DONE ANY ACT DESIGNED PRIMARILY TO SOLICIT LEGAL
BUSINESS. statements of the very same persons coaxed by Labiano and referred to

respondents office) to prove that respondent indeed solicited legal business

as well as profited from referrals suits.

Hence, lawyers are prohibited from soliciting cases for the purpose of gain,

either personally or through paid agents or brokers.[15] Such actuation

Although respondent initially denied knowing Labiano in his
constitutes malpractice, a ground for disbarment.[16]
answer, he later admitted it during the mandatory hearing.

Rule 2.03 should be read in connection with Rule 1.03 of the CPR

which provides:

Through Labianos actions, respondents law practice was benefited.
Hapless seamen were enticed to transfer representation on the strength of
Labianos word that respondent could produce a more favorable result.
Based on the foregoing, respondent clearly solicited employment violating
Rule 2.03, and Rule 1.03 and Canon 3 of the CPR and Section 27, Rule 138 of
the Rules of Court.
With regard to respondents violation of Rule 8.02 of the CPR, settled is the
rule that a lawyer should not steal another lawyers client nor induce the
latter to retain him by a promise of better service, good result or reduced
fees for his services.[20] Again the Court notes that respondent never denied
having these seafarers in his client list nor receiving benefits from Labianos
referrals. Furthermore, he never denied Labianos connection to his
office.[21] Respondent committed an unethical, predatory overstep into
anothers legal practice. He cannot escape liability under Rule 8.02 of the
CPR.
Moreover, by engaging in a money-lending venture with his clients as
borrowers, respondent violated Rule 16.04:
Rule 16.04 A lawyer shall not borrow money from his client unless
the clients interests are fully protected by the nature of
the case or by independent advice. Neither shall a lawyer
lend money to a client except, when in the interest of
justice, he has to advance necessary expenses in a legal
matter he is handling for the client.
The rule is that a lawyer shall not lend money to his client. The only
exception is, when in the interest of justice, he has to advance necessary
expenses (such as filing fees, stenographers fees for transcript of
stenographic notes, cash bond or premium for surety bond, etc.) for a
matter that he is handling for the client.
The rule is intended to safeguard the lawyers independence of
mind so that the free exercise of his judgment may not be adversely
affected.[22] It seeks to ensure his undivided attention to the case he is
handling as well as his entire devotion and fidelity to the clients cause. If the
lawyer lends money to the client in connection with the clients case, the
lawyer in effect acquires an interest in the subject matter of the case or an
additional stake in its outcome.[23] Either of these circumstances may lead
the lawyer to consider his own recovery rather than that of his client, or to
accept a settlement which may take care of his interest in the verdict to the
prejudice of the client in violation of his duty of undivided fidelity to the reason, lawyers are only allowed to announce their services by publication

clients cause.[24] in reputable law lists or use of simple professional cards.

As previously mentioned, any act of solicitation constitutes Professional calling cards may only contain the following details:

malpractice[25] which calls for the exercise of the Courts disciplinary powers.
(a) lawyers name;
Violation of anti-solicitation statutes warrants serious sanctions for initiating
(b) name of the law firm with which he is connected;
contact with a prospective client for the purpose of obtaining
(c) address;
employment.[26] Thus, in this jurisdiction, we adhere to the rule to protect
(d) telephone number and
the public from the Machiavellian machinations of unscrupulous lawyers
(e) special branch of law practiced.[28]
and to uphold the nobility of the legal profession.

Considering the myriad infractions of respondent (including Labianos calling card contained the phrase with financial
violation of the prohibition on lending money to clients), the sanction assistance. The phrase was clearly used to entice clients (who already had
recommended by the IBP, a mere reprimand, is a wimpy slap on the representation) to change counsels with a promise of loans to finance their
wrist. The proposed penalty is grossly incommensurate to its findings. legal actions. Money was dangled to lure clients away from their original

lawyers, thereby taking advantage of their financial distress and emotional

A final word regarding the calling card presented in evidence by petitioner. vulnerability. This crass commercialism degraded the integrity of the bar and

A lawyers best advertisement is a well-merited reputation for professional deserved no place in the legal profession. However, in the absence of

capacity and fidelity to trust based on his character and conduct. [27] For this substantial evidence to prove his culpability, the Court is not prepared to

rule that respondent was personally and directly responsible for the printing
and distribution of Labianos calling cards.
WHEREFORE, respondent Atty. Nicomedes Tolentino for violating Rules
1.03, 2.03, 8.02 and 16.04 and Canon 3 of the Code of Professional
Responsibility and Section 27, Rule 138 of the Rules of Court is
hereby SUSPENDED from the practice of law for a period of one
year effective immediately from receipt of this resolution. He is STERNLY
WARNED that a repetition of the same or similar acts in the future shall be
dealt with more severely.
Let a copy of this Resolution be made part of his records in the Office of the
Bar Confidant, Supreme Court of the Philippines, and be furnished to the
Integrated Bar of the Philippines and the Office of the Court Administrator
to be circulated to all courts.
SO ORDERED.
EN BANC
[A.C. No. 4984. April 1, 2003]
ATTY. JULITO D. VITRIOLO, PRECILLANA J. HONORICA, ARLEEN J. RAMOS,
DR. ROGER PEREZ, DR. IMELDA DARAUG, DR. REMIGIA
NATHANIELZ, CELEDONIA CORONACION, and JOSE
RABALO, complainants, vs. ATTY. FELINA DASIG, respondent.
RESOLUTION
PER CURIAM:
This is an administrative case for disbarment filed against Atty. Felina
S. Dasig,[1] an official of the Commission on Higher Education (CHED). The
charge involves gross misconduct of respondent in violation of the Attorneys
Oath for having used her public office to secure financial spoils to the
detriment of the dignity and reputation of the CHED.
Almost all complainants in the instant case are high-ranking officers of
the CHED. In their sworn Complaint-Affidavit filed with this Court on
December 4, 1998, complainants allege that respondent, while she was OIC
of Legal Affairs Service, CHED, committed acts that are grounds for
disbarment under Section 27,[2] Rule 138 of the Rules of Court, to wit:
a) Sometime in August 1998 and during the effectivity of
Respondents designation as Officer-in-Charge of Legal Affairs
Service, CHED, she demanded from Betty C. Mangohon, a
teacher of Our Lady of Mariazel Educational Center in
Novaliches, Quezon City, the amount of P20,000.00 and later
reduced to P5,000.00 for the facilitation of her application for
correction of name then pending before the Legal Affairs
Service, CHED...
b) Likewise, sometime in July to August 1998 and during the
effectivity of Respondents designation as Officer-in-Charge of
Legal Affairs Service, CHED, she demanded from Rosalie B.
Dela Torre, a student, the amount of P18,000.00 to
 P20,000.00 for facilitation of her application for correction of
name then pending before the Legal Affairs Service, CHED
c) Likewise, sometime in September 1998 and during the
effectivity of Respondents designation as Officer-in-Charge of
Legal Affairs Service, CHED, she demanded from Rocella G.
Eje, a student, the amount of P5,000.00 for facilitation of her
application for correction of name then pending before the
Legal Affairs Service, CHED. . . In addition, Respondent even
suggested to Ms. Eje to register her birth anew with full
knowledge of the existence of a prior registration
d) Likewise, sometime in August to September 1998 and during
the effectivity of Respondents designation as Officer-in-
Charge of Legal Affairs Service, CHED, she demanded from
Jacqueline N. Ng, a student, a considerable amount which was
subsequently confirmed to be P15,000.00 and initial fee of
P5,000.00 more or less for facilitation of her application for
correction of name then pending before the Legal Affairs
Service, CHED... In addition, the Respondent even suggested
to Ms. Ng to hire a lawyer who shall be chosen by Respondent
Dasig to facilitate the application for correction of name.[3]
Complainants likewise aver that respondent violated her oath as
attorney-at-law by filing eleven (11) baseless, groundless, and unfounded
suits before the Office of the City Prosecutor of Quezon City, which were
subsequently dismissed.[4]
Further, complainants charge respondent of transgressing
subparagraph b (22), Section 36[5] of Presidential Decree No. 807, for her
willful failure to pay just debts owing to Borela Tire Supply and Novas Lining
Brake & Clutch as evidenced by the dishonored checks she issued, [6] the
complaint sheet, and the subpoena issued to respondent.[7]
Complainants also allege that respondent instigated the commission
of a crime against complainant Celedonia R. Coronacion and Rodrigo
Coronacion, Jr., when she encouraged and ordered her son, Jonathan Dasig,
a guard of the Bureau of Jail Management and Penology, to draw his gun
and shoot the Coronacions on the evening of May 14, 1997. As a result of
this incident, a complaint for grave threats against the respondent and her
son, docketed as Criminal Case No. 86052, was lodged with the
Metropolitan Trial Court of Quezon City, Branch 36.[8]
Finally, complainants allege that respondent authored and sent to then
President Joseph Estrada a libelous and unfair report, which maligned the
good names and reputation of no less than eleven (11) CHED Directors
calculated to justify her ill motive of preventing their re-appointment and
with the end view of securing an appointment for herself.[9]
In our resolution of February 3, 1999, we required respondent to file a
Comment on the charges.[10] A copy of said resolution was sent to the
respondent at her address at Blk. 4, Lot 12, Hobart II Subdivision, Novaliches,
Quezon City, only to be returned to this Court with the notation
Unclaimed.[11]
On July 5, 1999, we directed that a copy of the resolution of February
3, 1999, be served by registered mail to respondent at her office address in
CHED.
In a letter dated August 28, 2000, the Postmaster of the Ortigas Center
Post Office informed the Court that the said mail matter had been delivered
to, received by, and signed for by one Antonio Molon, an authorized agent
of respondent on August 27, 1999.[12]
On November 22, 2000, we granted complainants motion to refer the
complaint to the Commission on Bar Discipline, Integrated Bar of the
Philippines (IBP) for investigation, report, and recommendation.
In its order dated February 6, 2001, the IBP Commission on Bar
Discipline directed respondent to submit her Answer to the Complaint,
failing which she would be considered in default and the case heard ex
parte. Respondent failed to heed said order and on January 8, 2002, the
Commission directed her anew to file her Answer, but again she failed to
comply with the directive. As a result, the Commission ruled that she had
waived her right to file her Comment or Answer to the Complaint and the
case was mainly resolved on the basis of the documents submitted and on
record.
In its report and recommendation, dated April 5, 2002, the IBP
Commission on Bar Discipline stated as follows:
From the foregoing evidence on record, it can be concluded that
respondent in violation of her oath as a government official and as a
member of the Bar, indeed made unlawful demands or attempted to
extort money from certain people who had pending applications/requests
before her office in exchange for her promise to act favorably on said
applications/requests. Clearly, respondent unlawfully used her public
office in order to secure financial spoils to the detriment of the dignity and
reputation of the Commission on Higher Education.
For the foregoing reasons, it is recommended that respondent be
suspended from the practice of law for the maximum period allowable of
three (3) years with a further warning that similar action in the future will
be a ground for disbarment of respondent.
On August 3, 2002, the IBP Board of Governors passed Resolution No.
XV-2002-393, the full text of which reads as follows:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, the Report and Recommendation of the Investigating
Commissioner of the above-entitled case, herein made part of this
Resolution/Decision as Annex A:; and, finding the recommendation fully
supported by the evidence on record and the applicable laws and rules;
and considering that respondent unlawfully used her public office in order
to secure financial spoils to the detriment of the dignity and reputation of
the Commission on Higher Education, Respondent is hereby SUSPENDED
from the practice of law for three (3) years.[13]
At the threshold is the query of whether respondent attorney-at-law,
as Officer-in-Charge (OIC) of Legal Services, CHED, may be disciplined by this
Court for her malfeasance, considering that her position, at the time of filing
of the complaint, was Chief Education Program Specialist, Standards
Development Division, Office of Programs and Standards, CHED.
Generally speaking, a lawyer who holds a government office may not
be disciplined as a member of the Bar for misconduct in the discharge of his
duties as a government official.[14]However, if said misconduct as a
government official also constitutes a violation of his oath as a lawyer, then
he may be disciplined by this Court as a member of the Bar. [15]
In this case, the record shows that the respondent, on various
occasions, during her tenure as OIC, Legal Services, CHED, attempted to
extort from Betty C. Mangohon, Rosalie B. Dela Torre, Rocella G. Eje, and
Jacqueline N. Ng sums of money as consideration for her favorable action
on their pending applications or requests before her office. The evidence
remains unrefuted, given the respondents failure, despite the opportunities
afforded her by this Court and the IBP Commission on Bar Discipline to
comment on the charges. We find that respondents misconduct as a lawyer
of the CHED is of such a character as to affect her qualification as a member
of the Bar, for as a lawyer, she ought to have known that it was patently
unethical and illegal for her to demand sums of money as consideration for
the approval of applications and requests awaiting action by her office.
The Attorneys Oath is the source of the obligations and duties of every
lawyer and any violation thereof is a ground for disbarment, suspension, or
other disciplinary action. The Attorneys Oath imposes upon every member
of the bar the duty to delay no man for money or malice. Said duty is further
stressed in Rule 1.03 of the Code of Professional
Responsibility.[16]Respondents demands for sums of money to facilitate the
processing of pending applications or requests before her office violates
such duty, and runs afoul of the oath she took when admitted to the Bar.
Such actions likewise run contrary to Rule 1.03 of the Code of Professional
Responsibility.
A member of the Bar who assumes public office does not shed his
professional obligations. Hence, the Code of Professional Responsibility,
promulgated on June 21, 1988, was not meant to govern the conduct of
private practitioners alone, but of all lawyers including those in government
service. This is clear from Canon 6[17] of said Code. Lawyers in government
are public servants who owe the utmost fidelity to the public service. Thus,
they should be more sensitive in the performance of their professional
obligations, as their conduct is subject to the ever-constant scrutiny of the
public.
Respondents attempts to extort money from persons with applications
or requests pending before her office are violative of Rule 1.01 [18] of the
Code of Professional Responsibility, which prohibits members of the Bar
from engaging or participating in any unlawful, dishonest, or deceitful acts.
Moreover, said acts constitute a breach of Rule 6.02[19] of the Code which
bars lawyers in government service from promoting their private interests.
Promotion of private interests includes soliciting gifts or anything of
monetary value in any transaction requiring the approval of his office or
which may be affected by the functions of his office. Respondents conduct
in office falls short of the integrity and good moral character required from
all lawyers, specially from one occupying a high public office. For a lawyer in
public office is expected not only to refrain from any act or omission which
might tend to lessen the trust and confidence of the citizenry in government,
she must also uphold the dignity of the legal profession at all times and
observe a high standard of honesty and fair dealing. Otherwise said, a lawyer
in government service is a keeper of the public faith and is burdened with
high degree of social responsibility, perhaps higher than her brethren in
private practice.
For her violation of the Attorneys Oath as well as of Rule 1.01 and Rule
1.03 of Canon 1[20] and Rule 6.02 of Canon 6 of the Code of Professional
Responsibility, particularly for acts of dishonesty as well as gross misconduct
as OIC, Legal Services, CHED, we find that respondent deserves not just the
penalty of three years suspension from membership in the Bar as well as the
practice of law, as recommended by the IBP Board of Governors, but
outright disbarment. Her name shall be stricken off the list of attorneys
upon finality of this decision.
WHEREFORE, respondent Arty. Felina S. Dasig is found liable for gross
misconduct and dishonesty in violation of the Attorneys Oath as well as the
Code of Professional Responsibility, and is hereby ordered DISBARRED.
Let copies of this Resolution be furnished to the Bar Confidant to be
spread on the records of the respondent, as well as to the Integrated Bar of
the Philippines for distribution to all its chapters, and the Office of the Court
Administrator for dissemination to all courts throughout the country.
SO ORDERED.
G.R. No. 104599 March 11, 1994
JON DE YSASI III, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION (FOURTH DIVISION), CEBU
CITY, and JON DE YSASI, respondents.
F.B. Santiago, Nalus & Associates for petitioner.
Ismael A. Serfino for private respondent.
REGALADO, J.:
The adage that blood is thicker than water obviously stood for naught in
this case, notwithstanding the vinculum of paternity and filiation between
the parties. It would indeed have been the better part of reason if herein
petitioner and private respondent had reconciled their differences in an
extrajudicial atmosphere of familial amity and with the grace of reciprocal
concessions. Father and son opted instead for judicial intervention despite
the inevitable acrimony and negative publicity. Albeit with distaste, the
Court cannot proceed elsewise but to resolve their dispute with the same
reasoned detachment accorded any judicial proceeding before it.
The records of this case reveal that petitioner was employed by his father,
herein private respondent, as farm administrator of Hacienda Manucao in
Hinigaran, Negros Occidental sometime in April, 1980. Prior thereto, he
was successively employed as sales manager of Triumph International
(Phil.), Inc. and later as operations manager of Top Form Manufacturing
(Phil.), Inc. His employment as farm administrator was on a fixed salary,
with other allowances covering housing, food, light, power, telephone,
gasoline, medical and dental expenses.
As farm administrator, petitioner was responsible for the supervision of
daily activities and operations of the sugarcane farm such as land
preparation, planting, weeding, fertilizing, harvesting, dealing with third
persons in all matters relating to the hacienda and attending to such other
tasks as may be assigned to him by private respondent. For this purpose,
he lived on the farm, occupying the upper floor of the house there.
Following his marriage on June 6, 1982, petitioner moved to Bacolod City
with his wife and commuted to work daily. He suffered various ailments
and was hospitalized on two separate occasions in June and August, 1982.
In November, 1982, he underwent fistulectomy, or the surgical removal of
the fistula, a deep sinuous ulcer. During his recuperation which lasted over
four months, he was under the care of Dr. Patricio Tan. In June, 1983, he
was confined for acute gastroenteritis and, thereafter, for infectious
hepatitis from December, 1983 to January, 1984.
During the entire periods of petitioner's illnesses, private respondent took
care of his medical expenses and petitioner continued to receive
compensation. However, in April, 1984, without due notice, private
respondent ceased to pay the latter's salary. Petitioner made oral and
written demands for an explanation for the sudden withholding of his
salary from Atty. Apolonio Sumbingco, private respondent's auditor and
legal adviser, as well as for the remittance of his salary. Both demands,
however, were not acted upon.
Petitioner then filed an action with the National Labor Relations
Commission (NLRC, for brevity), Regional Arbitration Branch No. VI,
Bacolod City, on October 17, 1984, docketed therein as RAB Case No.
0452-84, against private respondent for illegal dismissal with prayer for
reinstatement without loss of seniority rights and payment of full back
wages, thirteenth month pay for 1983, consequential, moral and
exemplary damages, as well as attorney's fees.
On July 31, 1991, said complaint for illegal dismissal was dismissed by the
NLRC,1 holding that petitioner abandoned his work and that the
termination of his employment was for a valid cause, but ordering private
respondent to pay petitioner the amount of P5,000.00 as penalty for his
failure to serve notice of said termination of employment to the
Department of Labor and Employment as required by Batas Pambansa Blg.
130 and consonant with this Court's ruling in Wenphil Corporation
vs. National Labor Relations Commission, et al.2 On appeal to the Fourth
Division of the NLRC, Cebu City, said decision was affirmed in toto.3
His motion for reconsideration4 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.
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.15Suffering 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 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 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 employee23 to whom the
law grants an amount of discretion in the discharge of his duties. This is
why when petitioner stated that "I assigned myself where I want to
go,"24 he was simply being candid about what he could do within the
sphere of his authority. His duties as farm administrator did not strictly
require him to keep regular hours or to be at the office premises at all
times, or to be subjected to specific control from his employer in every
aspect of his work. What is essential only is that he runs the farm as
efficiently and effectively as possible and, while petitioner may definitely
not qualify as a model employee, in this regard he proved to be quite
successful, as there was at least a showing of increased production during
the time that petitioner was in charge of farm operations.
If, as private respondent contends, he had no control over petitioner
during the years 1983 to 1984, this is because that was the period when
petitioner was recuperating from illness and on account of which his
attendance and direct involvement in farm operations were irregular and
minimal, hence the supervision and control exercisable by private
respondent as employer was necessarily limited. It goes without saying
that the control contemplated refers only to matters relating to his
functions as farm administrator and could not extend to petitioner's
personal affairs and activities.
While it was taken for granted that for purposes of discharging his duties
as farm administrator, petitioner would be staying at the house in the
farm, there really was no explicit contractual stipulation (as there was no
formal employment contract to begin with) requiring him to stay therein
for the duration of his employment or that any transfer of residence would
justify the termination of his employment. That petitioner changed his
residence should not be taken against him, as this is undeniably among his
basic rights, nor can such fact of transfer of residence per se be a valid
ground to terminate an employer-employee relationship.
Private respondent, in his pleadings, asserted that as he was yet uncertain
of his son's intention of returning to work after his confinement in the
hospital, he kept petitioner on the payroll, reported him as an employee of
the haciendafor 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 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 That as such planter-member of BIPA, I have
through Zip Forwarders,29 getting the payment of the additional cash check/checks with BIPA representing payment for all
advances for molasses for crop year 1983-1984 from Agrotex checks and papers to which I am entitled to (sic) as such
Commodities, Inc.,30 and remitting to private respondent through planter-member;
Atty. Sumbingco the sums collected along with receipts for medicine and
oil.31 That I have named, appointed and constituted as by
these presents
It will be observed that all of these chores, which petitioner took care of, I HEREBY NAME, APPOINT AND CONSTITUTE as my true
relate to the normal activities and operations of the farm. True, it is a and lawful ATTORNEY-IN-FACT
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 JON de YSASI III
transactions, as well as the property values and monetary sums involved, it
is unlikely that private respondent would leave the matter to just anyone. whose specimen signature is hereunder affixed, TO GET
Prudence dictates that these matters be handled by someone who can be FOR ME and in my name, place and stead, my
trusted or at least be held accountable therefor, and who is familiar with check/checks aforementioned, said ATTORNEY-IN-FACT
the terms, specifications and other details relative thereto, such as an being herein given the power and authority to sign for
employee. If indeed petitioner had abandoned his job or was considered to me and in my name, place and stead, the receipt or
have done so by private respondent, it would be awkward, or even out of receipts or payroll for the said check/checks. PROVIDED,
place, to expect or to oblige petitioner to concern himself with matters HOWEVER, that my said ATTORNEY-IN-FACT cannot cash
relating to or expected of him with respect to what would then be his past the said check/checks, but to turn the same over to me
and terminated employment. It is hard to imagine what further authority for my proper disposition.
an employer can have over a dismissed employee so as to compel him to
continue to perform work-related tasks:
That I HEREBY RATIFY AND CONFIRM the acts of my
Attorney-in-Fact in getting the said check/checks and
It is also significant that the special power of attorney 32 executed signing the receipts therefor.
by private respondent on June 26, 1980 in favor of petitioner, specifically
stating —
That I further request that my said check/checks be
made a "CROSSED CHECK".
xxx xxx xxx
xxx xxx xxx
That I, JON de YSASI, Filipino, of legal age, married, and a
resident of Hda. Manucao, hereinafter called and
remained in force even after petitioner's employment was supposed to
referred to as PRINCIPAL, am a sugarcane planter,
have been terminated by reason of abandonment. Furthermore,
BISCOM Mill District, and a duly accredited planter-
petitioner's numerous requests for an explanation regarding the stoppage
member of the BINALBAGAN-ISABELA PLANTERS'
of his salaries and benefits,33 the issuance of withholding tax reports,34 as
ASSOCIATION, INC.;
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 employment38 does not square with the elements
constitutive of abandonment.
On procedural considerations, petitioner posits that there was a violation
by private respondent of the due process requirements under the Labor
Code for want of notice and hearing.39 Private respondent, in opposition,
argues that Section 2, Rule XIV, Book V of the Omnibus Rules Implementing
the Labor Code applies only to cases where the employer seeks to
terminate the services of an employee on any of the grounds enumerated
under Article 282 of the Labor Code, but not to the situation obtaining in
this case where private respondent did not dismiss petitioner on any
ground since it was petitioner who allegedly abandoned his employment. 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
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:
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 (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 we may have failed to bring about the reconciliation of the father and son
zeal55 goes beyond merely presenting their clients' respective causes in who figured as parties to this dispute, and that our adherence here to law
court. It is just as much their responsibility, if not more importantly, to and duty may unwittingly contribute to the breaking, instead of the
exert all reasonable efforts to smooth over legal conflicts, preferably out of strengthening, of familial bonds. In fine, neither of the parties herein
court and especially in consideration of the direct and immediate actually emerges victorious. It is the Court's earnest hope, therefore, that
consanguineous ties between their clients. Once again, we reiterate that with the impartial exposition and extended explanation of their respective
the useful function of a lawyer is not only to conduct litigation but to avoid rights in this decision, the parties may eventually see their way clear to an
it whenever possible by advising settlement or withholding suit. He is often ultimate resolution of their differences on more convivial terms.
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 WHEREFORE, the decision of respondent National Labor Relations
for compromise, rather than a virtuoso of technicality in the conduct of Commission is hereby SET ASIDE. Private respondent is ORDERED to pay
litigation.56 petitioner back wages for a period not exceeding three (3) years, without
qualification or deduction,58 and, in lieu of reinstatement, separation pay
Rule 1.04 of the Code of Professional Responsibility explicitly provides that equivalent to one (1) month for every year of service, a fraction of six (6)
"(a) lawyer shall encourage his client to avoid, end or settle the months being considered as one (1) whole year.
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 SO ORDERED.
avowed duties as officers of the court. The records do not show that they
took pains to initiate steps geared toward effecting a rapprochement Narvasa, C.J., Padilla, Nocon and Puno, JJ., concur.
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.
THIRD DIVISION
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 JONAR SANTIAGO, A.C. No. 6252
proceedings in this controversy are barren of any reflection of the same.
Complainant,
One final word. This is one decision we do not particularly relish having Present:
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 Panganiban, J.,
adjudicated the legal issues herein squarely on the bases of law and
Chairman,
jurisprudence, sans sentimentality, we are saddened by the thought that
- versus - Sandoval-Gutierrez,
The Case and the Facts
Corona, and
Carpio Morales,* JJ
Promulgated:

Atty. EDISON V. RAFANAN, Before us is a verified Complaint[1] filed by Jonar Santiago, an

Respondent. October 5, 2004
employee of the Bureau of Jail Management and Penology (BJMP), for the
x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x
disbarment of Atty. Edison V. Rafanan. The Complaint was filed with the

DECISION
Commission on Bar Discipline (CBD) of the Integrated Bar of the Philippines

(IBP) on January 16, 2001. It charged Atty. Rafanan with deceit; malpractice
, J.:
PANGANIBAN
or other gross misconduct in office under Section 27 of Rule 138 [2] of the

Rules of Court; and violation of Canons 1.01, 1.02 and 1.03[3], Canon 5[4], and

otaries public are expected to exert utmost care in the performance Canons 12.07[5] and 12.08

of their duties, which are impressed with public interest. They are of the Code of Professional Responsibility (CPR).
N
enjoined to comply faithfully with the solemnities and requirements

of the Notarial Law. This Court will not hesitate to mete out appropriate In his Report, IBP Investigating Commissioner Leland R. Villadolid

sanctions to those who violate it or neglect observance thereof.

Jr. summarized the allegations of the complainant in this wise:
__________________
*
On leave.
 x x x. In his Letter-Complaint, Complainant
alleged, among others, that Respondent in notarizing He opined that the notation of residence certificates applied only
several documents on different dates failed and/or
refused to: a)make the proper notation regarding the to documents acknowledged by a notary public and was not mandatory for
cedula or community tax certificate of the affiants; b)
enter the details of the notarized documents in the affidavits related to cases pending before courts and other government
notarial register; and c) make and execute the certification
and enter his PTR and IBP numbers in the documents he
offices. He pointed out that in the latter, the affidavits, which were sworn
had notarized, all in violation of the notarial provisions of
the Revised Administrative Code.
to before government prosecutors, did not have to indicate the residence
Complainant likewise alleged that Respondent
executed an Affidavit in favor of his client and offered the certificates of the affiants. Neither did other notaries public in Nueva Ecija -
same as evidence in the case wherein he was actively
representing his client. Finally, Complainant alleges that - some of whom were older practitioners -- indicate the affiants residence
on a certain date, Respondent accompanied by several
persons waited for Complainant after the hearing and certificates on the documents they notarized, or have entries in their
after confronting the latter disarmed him of his sidearm
and thereafter uttered insulting words and veiled notarial register for these documents.
threats.[6]

As to his alleged failure to comply with the certification required by

On March 23, 2001, pursuant to the January 19, 2001 Order of the CBD,[7] Atty. Section 3 of Rule 112[9] of the Rules of Criminal Procedure, respondent explained that as counsel of the
Rafanan filed his verified Answer.[8] He admitted having administered the oath to the affiants whose Affidavits were
affiants, he had the option to comply or not with the certification. To nullify the Affidavits, it was complainant who

attached to the verified Complaint. He believed, however, that the

was duty-bound to bring the said noncompliance to the attention of the prosecutor conducting the preliminary

non-notation of their Residence Certificates in the Affidavits and the Counter-affidavits was allowed.
investigation.
 As to his alleged violation of Rule 12.08 of the CPR, respondent Lastly, he contended that the case had been initiated for no other

argued that lawyers could testify on behalf of their clients on substantial purpose than to harass him, because he was the counsel of Barangay

matters, in cases where [their] testimony is essential to the ends of Captain Ernesto Ramos in the cases filed by the latter before the

justice. Complainant charged respondents clients with attempted ombudsman and the BJMP against complainant.

murder. Respondent averred that since they were in his house when the

alleged crime occurred, his testimony is very essential to the ends of justice.
After receipt of respondents Answer, the CBD, through

Commissioner Tyrone R. Cimafranca, set the case for hearing on June 5,

Respondent alleged that it was complainant who had threatened 2001, at two oclock in the afternoon. Notices[12] of the hearing were sent to the parties by

registered mail. On the scheduled date and time of the hearing, only complainant appeared.Respondent was unable
and harassed his clients after the hearing of their case by the provincial

to do so, apparently because he had received the Notice only on June 8, 2001.[13] The hearing was reset to July 3,
prosecutor on January 4, 2001. Respondent requested the assistance of the

2001 at two oclock in the afternoon.

Cabanatuan City Police the following day, January 5, 2001, which was the

next scheduled hearing, to avoid a repetition of the incident and to allay the

fears of his clients. In support of his allegations, he submitted

On the same day, June 5, 2001, complainant filed his Reply [14] to the
[10] from the Cabanatuan City Police and the Joint Affidavit[11] of the two police officers who
Certifications
verified Answer of respondent. The latters Rejoinder was received by the CBD on July 13, 2001.[15] It also received
had assisted them.

complainants Letter-Request[16] to dispense with the hearings. Accordingly, it granted that request in its

Order[17] dated July 24, 2001, issued through Commissioner Cimafranca. It thereby directed the parties to submit
their respective memoranda within fifteen days from receipt of the Order, after which the case was to be deemed
The other charges -- violation of Section 27 of Rule 138 of the Rules

submitted for resolution.

of Court; and Canons 1.01 to 1.03, 12.07 and 12.08 of the CPR -- were

dismissed for insufficiency of evidence.

The CBD received complainants Memorandum[18] on September 26, 2001. Respondent did
The Courts Ruling
not file any.

The IBPs Recommendation

We agree with the Resolution of the IBP Board of Governors.

On September 27, 2003, the IBP Board of Governors issued

Respondents Administrative Liability

Resolution No. XVI-2003-172[19] approving and adopting the Investigating Commissioners Report

that respondent had violated specific requirements of the Notarial Law on the execution of a certification, the entry
Violation of the Notarial Law
of such certification in the notarial register, and the indication of the affiants residence certificate. The IBP Board of

Governors found his excuse for the violations unacceptable. It modified, however, the recommendation[20] of the
The Notarial Law is explicit on the obligations and duties of notaries
investigating commissioner by increasing the fine to P3,000 with a warning that any repetition of the violation will be

public. They are required to certify that the party to every document
dealt with a heavier penalty.

acknowledged before them has presented the proper residence certificate

(or exemption from the residence tax); and to enter its number, place of
issue and date as part of such certification.[21] They are also required to
maintain and keep a notarial register; to enter therein all instruments
notarized by them; and to give to each instrument executed, sworn to, or
acknowledged before [them] a number corresponding to the one in [their]
register [and to state therein] the page or pages of [their] register, on which
the same is recorded.[22] Failure to perform these duties would result in the
revocation of their commission as notaries public.[23]
These formalities are mandatory and cannot be simply neglected,
considering the degree of importance and evidentiary weight attached to
notarized documents. Notaries public entering into their commissions are
presumed to be aware of these elementary requirements.
In Vda. de Rosales v. Ramos,[24] the Court explained the value and
meaning of notarization as follows:
The importance attached to the act of
notarization cannot be overemphasized. Notarization is
not an empty, meaningless, routinary act. It is invested
with substantive public interest, such that only those who
are qualified or authorized may act as notaries
public. Notarization converts a private document into a
public document thus making that document admissible
in evidence without further proof of its authenticity. A
notarial document is by law entitled to full faith and credit
upon its face. Courts, administrative agencies and the
public at large must be able to rely upon the
acknowledgment executed by a notary public and
appended to a private instrument.
For this reason, notaries public should not take for granted the
solemn duties pertaining to their office. Slipshod methods in their
performance of the notarial act are never to be countenanced. They are
expected to exert utmost care in the performance of their duties,[25] which
are dictated by public policy and are impressed with public interest.
 It is clear from the pleadings before us -- and respondent has so. Being swayed by the bad example of others is not an acceptable

readily admitted -- that he violated the Notarial Law by failing to enter in the justification for breaking the law.

documents notations of the residence certificate, as well as the entry We note further that the documents attached to the verified

number and the pages of the notarial registry. Complaint are the Joint Counter-Affidavit of respondents clients Ernesto

Ramos and Rey Geronimo, as well as their witnesses Affidavits relative to

Respondent believes, however, that noncompliance with those Criminal Case No. 69-2000 for attempted murder, filed by complainants

requirements is not mandatory for affidavits relative to cases pending brother against the aforementioned clients. These documents became the

before the courts and government agencies. He points to similar practices basis of the present Complaint.

of older notaries in Nueva Ecija.

As correctly pointed out by the investigating commissioner, Section

We cannot give credence to, much less honor, his claim. His belief 3 of Rule 112 of the Rules of Criminal Procedure expressly requires

that the requirements do not apply to affidavits is patently irrelevant. No respondent as notary -- in the absence of any fiscal, state prosecutor or

law dispenses with these formalities. Au contraire, the Notarial Law makes government official authorized to administer the oath -- to certify that he

no qualification or exception. It is appalling and inexcusable that he did away has personally examined the affiants and that he is satisfied that they

with the basics of notarial procedure allegedly because others were doing voluntarily executed and understood their affidavits. Respondent failed to
do so with respect to the subject Affidavits and Counter-Affidavits in the

belief that -- as counsel for the affiants -- he was not required to comply with Where notaries public are lawyers, a graver responsibility is placed

the certification requirement. upon them by reason of their solemn oath to obey the laws. [28] No custom

or age-old practice provides sufficient excuse or justification for their failure

to adhere to the provisions of the law. In this case, the excuse given by

It must be emphasized that the primary duty of lawyers is to obey respondent exhibited his clear ignorance of the Notarial Law, the Rules of

the laws of the land and promote respect for the law and legal Criminal Procedure, and the importance of his office as a notary public.

processes.[26] They are expected to be in the forefront in the observance and Nonetheless, we do not agree with complainants plea to disbar

maintenance of the rule of law. This duty carries with it the obligation to be respondent from the practice of law. The power to disbar must be exercised

well-informed of the existing laws and to keep abreast with legal with great caution.[29] Disbarment will be imposed as a penalty only in a clear

developments, recent enactments and jurisprudence.[27] It is imperative case of misconduct that seriously affects the standing and the character of

that they be conversant with basic legal principles.Unless they faithfully the lawyer as an officer of the court and a member of the bar. Where any

comply with such duty, they may not be able to discharge competently and lesser penalty can accomplish the end desired, disbarment should not be

diligently their obligations as members of the bar. Worse, they may become decreed.[30] Considering the nature of the infraction and the absence of

susceptible to committing mistakes. deceit on the part of respondent, we believe that the penalty recommended
by the IBP Board of Governors is a sufficient disciplinary measure in this

case.
Parenthetically, under the law, a lawyer is not disqualified from

being a witness,[31] except only in certain cases pertaining to privileged

Lawyer as Witness for Client

communication arising from an attorney-client relationship.[32]

Complainant further faults respondent for executing before

The reason behind such rule is the difficulty posed upon lawyers by
Prosecutor Leonardo Padolina an affidavit corroborating the defense of alibi

the task of dissociating their relation to their clients as witnesses from that
proffered by respondents clients, allegedly in violation of Rule 12.08 of the

as advocates. Witnesses are expected to tell the facts as they recall them. In
CPR: A lawyer shall avoid testifying in behalf of his client.

contradistinction, advocates are partisans -- those who actively plead and

defend the cause of others. It is difficult to distinguish the fairness and

Rule 12.08 of Canon 12 of the CPR states:
Rule 12.08 A lawyer shall avoid
testifying in behalf of his client, except: impartiality of a disinterested witness from the zeal of an advocate. The

a) on formal matters, such as

question is one of propriety rather than of competency of the lawyers who
the mailing, authentication or custody
of an instrument and the like;
testify for their clients.
b) on substantial matters, in
cases where his testimony is essential to
the ends of justice, in which event he
must, during his testimony, entrust the
trial of the case to another counsel.
 Acting or appearing to act in the double capacity of lawyer and Notwithstanding this guideline and the existence of the Affidavit executed

witness for the client will provoke unkind criticism and leave many people by Atty. Rafanan in favor of his clients, we cannot hastily make him

to suspect the truthfulness of the lawyer because they cannot believe the administratively liable for the following reasons:

lawyer as disinterested. The people will have a plausible reason for thinking, First, we consider it the duty of a lawyer to assert every remedy

and if their sympathies are against the lawyers client, they will have an and defense that is authorized by law for the benefit of the client, especially

opportunity, not likely to be neglected, for charging, that as a witness he in a criminal action in which the latters life and liberty are at stake. [35] It is

fortified it with his own testimony. The testimony of the lawyer becomes the fundamental right of the accused to be afforded full opportunity to

doubted and is looked upon as partial and untruthful. [33] rebut the charges against them. They are entitled to suggest all those

reasonable doubts that may arise from the evidence as to their guilt; and to

Thus, although the law does not forbid lawyers from being ensure that if they are convicted, such conviction is according to law.

witnesses and at the same time counsels for a cause, the preference is for

them to refrain from testifying as witnesses, unless they absolutely have to; Having undertaken the defense of the accused, respondent, as

and should they do so, to withdraw from active management of the case. [34] defense counsel, was thus expected to spare no effort to save his clients

from a wrong conviction. He had the duty to present -- by all fair and

honorable means -- every defense and mitigating circumstance that the law
permitted, to the end that his clients would not be deprived of life, liberty innocent persons against hasty, malicious and oppressive prosecutions;

or property, except by due process of law.[36] protecting them from open and public accusations of crime and from the

trouble as well as expense and anxiety of a public trial; and protecting the

The Affidavit executed by Atty. Rafanan was clearly necessary for State from useless and expensive prosecutions.[38]The investigation is

the defense of his clients, since it pointed out the fact that on the alleged advisedly called preliminary, as it is yet to be followed by the trial proper.

date and time of the incident, his clients were at his residence and could not

have possibly committed the crime charged against them. Notably, in his Nonetheless, we deem it important to stress and remind

Affidavit, complainant does not dispute the statements of respondent or respondent to refrain from accepting employment in any matter in which

suggest the falsity of its contents. he knows or has reason to believe that he may be an essential witness for

the prospective client. Furthermore, in future cases in which his testimony

Second, paragraph (b) of Rule 12.08 contemplates a situation in may become essential to serve the ends of justice, the canons of the

which lawyers give their testimonies during the trial. In this instance, the profession require him to withdraw from the active prosecution of these

Affidavit was submitted during the preliminary investigation which, as such, cases.

was merely inquisitorial.[37] Not being a trial of the case on the merits, a

preliminary investigation has the oft-repeated purposes of securing No Proof of Harassment

 Republic of the Philippines
SUPREME COURT
The charge that respondent harassed complainant and uttered
Manila

insulting words and veiled threats is not supported by evidence. Allegation THIRD DIVISION

is never equivalent to proof, and a bare charge cannot be equated with

liability.[39] It is not the self-serving claim of complainant but the version of G.R. No. L-41862 February 7, 1992

B. R. SEBASTIAN ENTERPRISES, INC., petitioner,

respondent that is more credible, considering that the latters allegations are vs.
HON. COURT OF APPEALS, EULOGIO B. REYES, NICANOR G. SALAYSAY, in
corroborated by the Affidavits of the police officers and the Certifications of his capacity as Provincial Sheriff of Rizal, and ANTONIO MARINAS, in his
capacity as Deputy Sheriff, respondents.
the Cabanatuan City Police.
Benito P. Fabie for petitioner.

Ildefonso de Guzman-Mendiola for private respondents.

WHEREFORE, Atty. Edison V. Rafanan is found guilty of violating the Notarial

Law and Canon 5 of the Code of Professional Responsibility and is DAVIDE, JR., J.:

This is a petition for prohibition and mandamus, with prayer for

hereby FINED P3,000 with a warning that similar infractions in the future preliminary injunction, to review the Resolution dated 10 November 1975
of respondent Court of Appeals in C.A.-G.R. No. 53546-R denying
will be dealt with more severely. petitioner's motion to reinstate its appeal, earlier dismissed for failure to
file the Appellant's Brief.

The material operative facts of this case, as gathered from the pleadings of
the parties, are not disputed.
SO ORDERED.
Eulogio B. Reyes, now deceased, filed an action for damages with the then
Court of First Instance (now Regional Trial Court) of Rizal, Pasay City
Branch, against the Director of Public Works, the Republic of the
Philippines and petitioner herein, B. R. Sebastian Enterprises, Inc. The case
was docketed as Civil Case No. 757-R. 1
On 7 May 1973, the trial court rendered a decision finding petitioner liable
for damages but absolving the other defendants. 2
Petitioner, thru its counsel, the law firm of Baizas, Alberto and Associates,
timely appealed the adverse decision to the respondent Court of Appeals,
which docketed the case as C.A.-G.R. No. 53546-R. 3
During the pendency of the appeal, the plaintiff-appellee therein, Eulogio
B. Reyes, died. Upon prior leave of the respondent Court, he was
substituted by his heirs — Enrique N. Reyes, Felicisima R. Natividad, Donna
Marie N. Reyes and Renne Marie N. Ryes — who are now the private
respondents in this present petition.
On 19 February 1974, petitioner, thru its then counsel of record, received
notice to file Appellant's Brief within 45 days from receipt thereof. It had,
therefore, until 5 April 1974 within which to comply.
Counsel for petitioner failed to file the Brief; thus, on 9 July 1974,
respondent Court issued a Resolution requiring said counsel to show cause
why the appeal should not be dismissed for failure to file the Appellant's
Brief within the reglementary period. 4 A copy of this Resolution was
received by counsel for petitioner on 17 July 1974. 5
As the latter failed to comply with the above Resolution, respondent Court,
on 9 September 1974, issued another Resolution this time dismissing
petitioner's appeal:
It appearing that counsel for defendant-appellant failed
to show cause why the appeal should not be dismissed
(for failure to file the appellant's brief within the
reglementary period which expired on April 5, 1974)
within the period of 10 days fixed in the resolution of July
9, 1974, copy of which was received by said counsel on
July 17, 1974; . . . 6
On 28 September 1974, petitioner, this time thru the BAIZAS LAW OFFICE,
filed a motion for reconsideration 7 of the resolution dismissing its appeal
alleging that as a result of the death of Atty. Crispin Baizas, senior partner
in the law firm of BAIZAS, ALBERTO & ASSOCIATES, the affairs of the said
firm are still being settled between Atty. Jose Baizas (son of Crispin Baizas)
and Atty. Ruby Alberto, the latter having established her own law office;
furthermore, Atty. Rodolfo Espiritu, the lawyer who handled this case in
the trial court and who is believed to have also attended to the
preparation of the Appellant's Brief but failed to submit it through
oversight and inadvertence, had also left the firm.
In its Resolution of 9 October 1974, respondent Court denied the motion
for reconsideration, stating that:
Upon consideration of the motion of counsel for
defendant-appellant, praying, on the grounds therein
stated, that the resolution of September 9, 1974,
dismissing the appeal, be set aside, and that appellant be
granted a reasonable period of time within which to file
its brief: considering that six (6) months had elapsed
since the expiration of the original period and more than
two and one-half (2-½) months since counsel received
copy of the resolution requiring him to show cause why
the appeal should not be dismissed for failure to file
brief; Motion Denied. 8
No action having been taken by petitioner from the above Resolution
within the period to file a petition for review, the same became final and
executory, and the records of the case were remanded to the court of
origin for execution.
The trial court issued a writ of execution on 21 October 1975. 9 Pursuant
thereto, respondent Provincial Sheriff and Deputy Sheriff attached
petitioner's Hough Pay Loader with Hercules Diesel Engine and issued on 5
November 1975 a Notice of Sheriff's Sale, scheduling for Friday, 14
November 1975 at 10:00 o'clock in the morning, the auction sale
thereof. 10
On 6 November 1975, petitioner filed with respondent Court a Motion to
Reinstate Appeal with Prayer for Issuance of a Writ of Preliminary
Injunction 11 dated 5 November 1975, and containing the following
allegations:
1. That late as it may be, this Honorable Court has the
inherent power to modify and set aside its processes, in
the interest of justice, especially so in this case when the
case was dismissed on account of the untimely death of
Atty. Crispin D. Baizas, counsel of BRSEI (B.R. Sebastian
Enterprises, Inc.).
2. That to dismiss the case for failure to file the
appellant's brief owing to the untimely death of the late
Atty. Crispin D. Baizas would be tantamount to denying
BRSEI its (sic) day in court, and is, therefore, a clear and
unmistakable denial of due process on the part of BRSEI.
3. That to reinstate BRSEI's appeal would not impair the
rights of the parties, since all that BRSEI is asking for, is a
day in court to be heard on appeal in order to have the
unfair, unjust and unlawful decision, set aside and
reversed.
The respondent Court denied the said motion in its Resolution of 10
November 1975: 12
. . . it appearing that appellant was represented by the
law firm of Baizas, Alberto & Associates, and while Atty.
Baizas died on January 16, 1974, his law firm was not
dissolved since it received the notice to file brief on
February 19, 1974, and the copy of the Resolution of July
9, 1974, requiring appellant to show cause why the
appeal should not be dismissed was received by the law
firm on July 17, 1974 and no cause was shown; . . .
Hence, on 13 November 1975, petitioner filed the original petition 13 in this
case against the Court of Appeals, Eulogio B. Reyes, Nicanor G. Salaysay, as
Provincial Sheriff of Rizal, and Antonio Marinas, as Deputy Sheriff. The
petition likewise prayed for the issuance of a Temporary Restraining Order.
In the Resolution of 13 November 1975, this Court required respondents to
comment on the petition within ten (10) days from receipt thereof, and
issued a Temporary Restraining Order. 14
On 12 January 1976, respondents filed a Partial Comment on the Petition
with a Motion to Suspend the Proceedings 15 on the ground that
respondent Eulogio B. Reyes is already dead and his lawful heirs had
already been ordered substituted for him during the pendency of the
appeal before the respondent Court of Appeals.
In the Resolution of 21 January 1976, this Court ordered petitioner to
amend its petition within then (10) days from receipt of notice, and
suspended the filing of respondents' Comment until after the amendment
is presented and admitted. 16
In compliance therewith, petitioner filed on 9 February 1976 a Motion for
Leave to Admit Amended Petition to which it attached the said Amended
Petition. 17 The amendment consists in the substitution of Eulogio B. Reyes
with his heirs.
This Court admitted the Amended Petition 18 and required the respondents
to file their Comment within ten (10) days from notice thereof, which they
complied with on 5 April 1976. 19 Petitioner filed its Reply to the Comment
on 29 April 1976. 20
In the Resolution of 12 May 1976, this Court denied the petition for lack of
merit: 21
L-41862 (B.R. Sebastian Enterprises, Inc. vs. Court of
Appeals, et. al.). — Considering the allegations, issues
and arguments adduced in the amended petition for
review on certiorari of the decision of the Court of
 Appeals, respondents' comment thereon, as well as
petitioner's reply to said comment, the Court Resolved to
DENY the petition for lack of merit.
However, on 31 May 1976, petitioner filed a motion for its
reconsideration 22 claiming that since it was deprived of the right to appeal
without fault on its part, the petition should be given due course.
Respondents submitted on 22 July 1976 their Comment 23 to said Motion
for Reconsideration.
24
On 10 September 1976, this Court resolved to reconsider its Resolution
of 12 May 1976 and required both parties to submit simultaneously their
respective Memoranda within thirty (30) days from notice thereof.
Petitioner submitted its Memorandum on 5 November 1976 25 while
respondents submitted theirs on 22 November 1976. 26 On 29 November
1976, this Court deemed the present case submitted for decision. 27
The sole issue to be addressed is whether or not the respondent Court of
Appeals gravely abused its discretion in denying petitioner's motion to
reinstate its appeal, previously dismissed for failure to file the Appellant's
Brief.
Petitioner, in its Memorandum, extensively expounds on respondent
Court's authority to reinstate dismissed appeals and cites as basis thereof
the decision of this Court in Heirs of Clemente Celestino vs. Court of
Appeals, et al., 28Indeed, in said case, this Court affirmed the resolution of
the Court of Appeals — reinstating an appeal after being dismissed for
failure by the appellants therein to file their brief, and after entry of
judgment and remand of the records to the lower court — and cancelled
the entry of judgment, requiring the lower court to return the records to
the Court of Appeals and admit appellant's brief. Said case, however, had a
peculiar or singular factual situation" which prompted the Court of Appeals
to grant the relief and which this Court found sufficient to justify such
action. As this Court, through Associate Justice Ramon Aquino, said:
We are of the opinion that under the peculiar or singular
factual situation in this case and to forestall a miscarriage
of justice the resolution of the Court of Appeals
reinstating the appeal should be upheld.
That Court dismissed the appeal of the Pagtakhans in the
mistaken belief that they had abandoned it because they
allegedly failed to give to their counsel the money
needed for paying the cost of printing their brief.
But presumably the Appellate Court realized later that
fraud might have been practised on appellants
Pagtakhans since their oppositions were not included in
the record on appeal. In (sic) sensed that there was some
irregularity in the actuations of their lawyer and that
Court (sic) itself had been misled into dismissing the
appeal.
Counsel for the Pagtakhans could have furnished them
with copies of his motions for extension of time to file
brief so that they would have known that the Court of
Appeals had been apprised of their alleged failure to
defray the cost of printing their brief and they could have
articulated their reaction directly to the Court. Counsel
could have moved in the Appellate Court that he be
allowed to withdraw from the case or that the
Pagtakhans be required to manifest whether they were
still desirous of prosecuting their appeal or wanted a
mimeographed brief to be filed for them (See People vs.
Cawili, L-30543, August 31, 1970, 34 SCRA 728). Since
counsel did none of those things, his representation that
the appellants had evinced lack of interest in pursuing
their appeal is difficult to believe.
If the appellate court has not yet lost its jurisdiction, it
may exercise its discretion in reinstating an appeal,
having in mind the circumstances obtaining in each case
 and the demands of substantial justice (Alquiza vs.
Alquiza, L-23342, February 10, 1968, 22 SCRA 494, 66
O.G. 276; C. Vda. de Ordoveza vs. Raymundo, 62 Phil.
275; Chavez vs. Ganzon, 108 Phil. 6).
But even if it has already lost jurisdiction over the appeal
by reason of the remand of the record to the lower
court, it, nevertheless, has the inherent right to recall
the remittitur or the remand of the record to the lower
court if it had rendered a decision or issued a resolution
which was induced by fraud practised upon it. Such a
right is not affected by the statutory provision that after
the record has been remanded, the appellate court has
no further jurisdiction over the appeal (5 Am Jur. 2nd
433 citingLovett vs. State, 29 Fla. 384, 11 So. 176; 84 ALR
595; State vs. Ramirez, 34 Idaho 623, 203 Pac. 279).
In the instant case, no fraud is involved; what obtain is simple negligence
on the part of petitioner's counsel, which is neither excusable nor
unavoidable. Petitioner thus failed to demonstrate sufficient cause to
warrant a favorable action on its plea.
As held in Chavez, et al. vs. Ganzon, et al., 29 and reiterated in Negros
Stevedoring Co., Inc. vs. Court of Appeals, 30We said:
Granting that the power or discretion to reinstate an
appeal that had been dismissed is included in or implied
from the power or discretion to dismiss an appeal, still
such power or discretion must be exercised upon a
showing of good and sufficient cause, in like manner as
the power or discretion vested in the appellate court to
allow extensions of time for the filing of briefs. There
must be such a showing which would call for, prompt and
justify its exercise (sic). Otherwise, it cannot and must
not be upheld.
To justify its failure to file the Appellant's Brief, petitioner relies mainly on
the death of Atty. Crispin Baizas and the supposed confusion it brought to
the firm of BAIZAS, ALBERTO & ASSOCIATES. It says: 31
Petitioner, thru its president Bernardo R. Sebastian,
engaged the services of Atty. Crispin D. Baizas to handle
its defense in Civil Case No. 757-R; however, it appears
that Atty. Baizas entered petitioner's case as a case to be
handled by his law firm operating under the name and
style "Crispin D. Baizas & Associates." Hence, the Answer
to the complaint, Answer to Cross-Claim, and Answer to
Fourth-party Complaint filed for petitioner in said case,
evince that the law firm "Crispin D. Baizas & Associates"
represents petitioner in the action.
After rendition of the assailed Decision of the trial court,
petitioner's counsel appears to have changed its firm
name to "Baizas, Alberto & Associates." The appeal was
thus pursued for petitioner by the law firm "Baizas,
Alberto & Associates."
On January 16, 1974, Atty. Crispin D. Baizas died as a
result of a brief heart attack. In consequence (sic) of his
death, the law firm "Baizas, Alberto & Associates" was in
a terribly confused state of affairs. In effect, said law firm
was dissolved. Atty. Ruby Alberto formed her own law
office and other associates left the dissolved law firms
(sic) joining other offices or putting up their own. Atty.
Jose Baizas, son of deceased Crispin D. Baizas, took over
the management of why may have been left of his
father's office, it appearing that some, if not many, cases
of the defunct office were taken over by the associates
who left the firm upon its dissolution.
But, none of the former partners and
associates/assistants of the dissolved law firm filed the
required appellant's brief for herein petitioner in its
 appealed case before the respondent Court of Appeals.
No notice was served upon petitioner by any of the
surviving associates of the defunct law firm that its
appellant's brief was due for filing or that the law office
had been dissolved and that the law office had been
dissolved and that none of the lawyers herein formerly
connected desired to handle the appealed case of
petitioner. . . .
The circumstances that the law firm "Baizas, Alberto &
Associates" was dissolved and that none of the
associates took over petitioner's case, and no notice of
such state of affairs was given to petitioner who could
have engaged the services of another lawyer to
prosecute its appeal before respondent Court,
constitutes (sic) an UNAVOIDABLE CASUALTY that
entitles petitioner to the relief prayed for. On the other
hand, the non-dissolution of said law firm "Baizas,
Alberto & Associates" will not defeat petitioner's claim
for relief since, in such event, the said firm had
ABANDONED petitioner's cause, which act constitutes
fraud and/or reckless inattention the result of which is
deprivation of petitioner's day in court. In the
abovementioned Yuseco case, this Honorable Court had
emphatically and forcefully declared that it will always be
disposed to grant relief to parties aggrieved by perfidy,
fraud, reckless inattention and downright incompetence
of lawyers, which has the consequence of depriving their
day (sic) in court.
We find no merit in petitioner's contentions. Petitioner's counsel was the
law firm of BAIZAS, ALBERTO & ASSOCIATES and not merely Atty. Crispin
Baizas. Hence, the death of the latter did not extinguish the lawyer-client
relationship between said firm and petitioner.
In Gutierrez & Sons, Inc. vs. Court of Appeals, 32 the appeal filed by the law
firm of BAIZAS, ALBERTO & ASSOCIATES on behalf of respondent therein
was dismissed for failure to comply with the requisites enumerated in the
Rules of Court; the excuse presented by said counsel was also the death of
Atty. Crispin Baizas. This Court held therein that:
The death of Attorney Baizas was not a valid excuse on
the part of his associates for not attending to Alvendia's
appeal, supposing arguendo that his office was solely
entrusted with the task of representing Alvendia in the
Court of Appeals. Attorney Espiritu (not Attorney Baizas)
was the one actually collaborating with Viola in handling
Alvendia's case. He did not file a formal appearance in
the Court of Appeals.
Undoubtedly, there was inexcusable negligence on the part of petitioner's
counsel in failing to file the Appellant's Brief. As revealed by the records,
petitioner's counsel, the BAIZAS ALBERTO & ASSOCIATES law firm, received
the notice to file Brief on 19 February 1974. It failed to do so within the 45
days granted to it. Said law firm also received a copy of the respondent
Court's Resolution of 9 July 1974 requiring it to show cause why the appeal
should not be dismissed for failure to file the Brief within the reglementary
period. Petitioner chose not to comply with it, thus compelling the
respondent Court to issue on 9 September 1974 a Resolution dismissing
the appeal, a copy of which the former also received. Then, on 28
September 1974, the BAIZAS LAW OFFICE moved for reconsideration of the
said Resolution which respondent Court denied in its Resolution of 9
October 1974. Nothing more was heard from petitioner until after a year
when, on 6 November 1975, it filed the instant petition in reaction to the
issuance of a writ of execution by the trial court following receipt of the
records for the respondent Court.
The "confusion" in the office of the law firm following the death of Atty.
Crispin Baizas is not a valid justification for its failure to file the Brief. With
Baizas' death, the responsibility of Atty. Alberto and his Associates to the
petitioner as counsel remained until withdrawal by the former of their
appearance in the manner provided by the Rules of Court. This is so
because it was the law firm which handled the case for petitioner before
both the trial and appellate courts. That Atty. Espiritu, an associate who
was designated to handle the case, later left the office after the death of
Atty. Baizas is of no moment since others in the firm could have replaced
him.. Upon receipt of the notice to file Brief, the law firm should have re-
assigned the case to another associate or, it could have withdrawn as
counsel in the manner provided by the Rules of Court so that the
petitioner could contract the services of a new lawyer.
In the Negros Stevedoring case, supra., this Court held:
Based on the foregoing, it is clear that there was failure to show a good
and sufficient cause which would justify the reinstatement of petitioner's
appeal. Respondent Court of Appeals did not them commit any grave
abuse of discretion when it denied petitioner's motion to reinstate its
appeal.
WHEREFORE, the Petition is hereby DISMISSED and the temporary
restraining order issued in this case is lifted.

The negligence committed in the case at bar cannot be Costs against petitioner.
considered excusable, nor (sic) is it unavoidable. Time
and again the Court has admonished law firms to adopt a IT SO ORDERED.
system of distributing pleadings and notices, whereby
lawyers working therein receive promptly notices and Gutierrez, Jr., Feliciano, Bidin and Romero, JJ., concur.
pleadings intended for them, so that they will always be
informed of the status of their cases. Their Court has also
often repeated that the negligence of clerks which
adversely affect the cases handled by lawyers, is binding
EN BANC
upon the latter.

Compounding such negligence is the failure of the BAIZAS LAW OFFICE,

which filed on 28 September 1974 the motion for reconsider the DIANA RAMOS, A. C. No. 6788
Resolution of 9 September 1974, to take any further appropriate action Complainant, (Formerly, CBD 382)
after the respondent Court denied said motion on 9 October 1974. The Present:
appearance of said counsel is presumed to be duly authorized by
petitioner. The latter has neither assailed nor questioned such appearance. PUNO, C.J.,

The rule is settled that negligence of counsel binds the client. 33 QUISUMBING,

YNARES-SANTIAGO,
Moreover, petitioner itself was guilty of negligence when it failed to make
inquiries from counsel regarding its case. As pointed out by respondents, SANDOVAL-GUTIERREZ,
the president of petitioner corporation claims to be the intimate friend of -versus-
Atty. Crispin Baizas; hence, the death of the latter must have been known CARPIO,
to the former. 34 This fact should have made petitioner more vigilant with
AUSTRIA-MARTINEZ,
respect to the case at bar. Petitioner failed to act with prudence and
diligence, thus, its plea that they were not accorded the right to procedural CORONA,
due process cannot elicit either approval or sympathy. 35
 CARPIO MORALES,

AZCUNA,

TINGA, THE COMPLAINT

CHICO-NAZARIO,*

GARCIA,
In 1992, the complainant Diana Ramos sought the assistance of
VELASCO, JR.,
respondent Atty. Jose R. Imbang in filing civil and criminal actions against
NACHURA and
REYES, JJ. the spouses Roque and Elenita Jovellanos.[2] She gave respondent P8,500 as

ATTY. JOSE R. IMBANG, attorney's fees but the latter issued a receipt for P5,000 only.[3]
Respondent. Promulgated:

August 23, 2007

The complainant tried to attend the scheduled hearings of her cases against

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x the Jovellanoses. Oddly, respondent never allowed her to enter the

courtroom and always told her to wait outside. He would then come out
RESOLUTION
after several hours to inform her that the hearing had been cancelled and

rescheduled.[4] This happened six times and for each appearance in court,

respondent charged her P350.

PER CURIAM:

After six consecutive postponements, the complainant became suspicious.

She personally inquired about the status of her cases in the trial courts of
This is a complaint for disbarment or suspension[1] against Atty. Jose R.
Bian and San Pedro, Laguna. She was shocked to learn that respondent
Imbang for multiple violations of the Code of Professional Responsibility.
never filed any case against the Jovellanoses and that he was in fact the complainant allegedly remained adamant. She insisted on suing the

employed in the Public Attorney's Office (PAO).[5] Jovellanoses. Afraid that she might spend the cash on hand, the complainant

asked respondent to keep the P5,000 while she raised the balance of Atty.

Ungson's acceptance fee.[11]

RESPONDENT'S DEFENSE
A year later, the complainant requested respondent to issue an antedated
According to respondent, the complainant knew that he was in the
receipt because one of her daughters asked her to account for the P5,000
government service from the very start. In fact, he first met the complainant
she had previously given the respondent for safekeeping. [12] Because the
when he was still a district attorney in the Citizen's Legal Assistance Office
complainant was a friend, he agreed and issued a receipt dated July 15,
(predecessor of PAO) of Bian, Laguna and was assigned as counsel for the
1992.[13]
complainant's daughter.[6]

On April 15, 1994, respondent resigned from the PAO.[14] A few months later
In 1992, the complainant requested him to help her file an action for
or in September 1994, the complainant again asked respondent to assist her
damages against the Jovellanoses.[7] Because he was with the PAO and
in suing the Jovellanoses. Inasmuch as he was now a private practitioner,
aware that the complainant was not an indigent, he
respondent agreed to prepare the complaint. However, he was unable to
declined.[8] Nevertheless, he advised the complainant to consult Atty. Tim
finalize it as he lost contact with the complainant.[15]
Ungson, a relative who was a private practitioner.[9] Atty. Ungson, however,

did not accept the complainant's case as she was unable to come up with

the acceptance fee agreed upon.[10] Notwithstanding Atty. Ungson's refusal,


RECOMMENDATION OF THE IBP
Acting on the complaint, the Commission on Bar Discipline (CBD) of the
Integrated Bar of the Philippines (IBP) where the complaint was filed,
received evidence from the parties. On November 22, 2004, the CBD
submitted its report and recommendation to the IBP Board of Governors.[16]
The CBD noted that the receipt[17] was issued on July 15, 1992 when
respondent was still with the PAO.[18] It also noted that respondent
described the complainant as a shrewd businesswoman and that
respondent was a seasoned trial lawyer. For these reasons, the complainant
would not have accepted a spurious receipt nor would respondent have
issued one. The CBD rejected respondent's claim that he issued the receipt
to accommodate a friend's request.[19] It found respondent guilty of
violating the prohibitions on government lawyers from accepting private
cases and receiving lawyer's fees other than their salaries.[20] The CBD
concluded that respondent violated the following provisions of the Code of
Professional Responsibility:
Rule 1.01. A lawyer shall not engage in unlawful,
dishonest, immoral or deceitful conduct.
Rule 16.01. A lawyer shall account for all money or
property collected or received for or from a client.
Rule 18.01. A lawyer should not undertake a legal service
which he knows or should know that he is not qualified to
render. However, he may render such service if, with the
consent of his client, he can obtain as collaborating
counsel a lawyer who is competent on the matter.
Thus, it recommended respondent's suspension from the practice of law for
three years and ordered him to immediately return to the complainant the
amount of P5,000 which was substantiated by the receipt.[21]
The IBP Board of Governors adopted and approved the findings of the CBD
that respondent violated Rules 1.01, 16.01 and 18.01 of the Code of
Professional Responsibility. It, however, modified the CBD's
recommendation with regard to the restitution of P5,000 by imposing
interest at the legal rate, reckoned from 1995 or, in case of respondent's
failure to return the total amount, an additional suspension of six months.
THE COURT'S RULING
We adopt the findings of the IBP with modifications.
Lawyers are expected to conduct themselves with honesty and
integrity.[23] More specifically, lawyers in government service are expected
to be more conscientious of their actuations as they are subject to public
scrutiny. They are not only members of the bar but also public servants who
owe utmost fidelity to public service.[24]
Government employees are expected to devote themselves completely to
public service. For this reason, the private practice of profession is
prohibited. Section 7(b)(2) of the Code of Ethical Standards for Public
Officials and Employees provides:
Section 7. Prohibited Acts and Transactions. -- In addition
[22] to acts and omissions of public officials and employees
now prescribed in the Constitution and existing laws, the
following constitute prohibited acts and transactions of
any public official and employee and are hereby declared
unlawful:
xxx xxx xxx
(b) Outside employment and other activities related
thereto, public officials and employees during their
incumbency shall not:
xxx xxx xxx
(1) Engage in the private practice of profession unless
authorized by the Constitution or law, provided that such
practice will not conflict with their official function.[25]
Thus, lawyers in government service cannot handle private cases for they
are expected to devote themselves full-time to the work of their respective
offices.
In this instance, respondent received P5,000 from the complainant and
issued a receipt on July 15, 1992 while he was still connected with the PAO.
Acceptance of money from a client establishes an attorney-client
relationship.[26] Respondent's admission that he accepted money from the As a PAO lawyer, respondent should not have accepted attorney's fees from

complainant and the receipt confirmed the presence of an attorney-client the complainant as this was inconsistent with the office's

relationship between him and the complainant. Moreover, the receipt mission.[29] Respondent violated the prohibition against accepting legal fees

showed that he accepted the complainant's case while he was still a other than his salary.

government lawyer. Respondent clearly violated the prohibition on private

practice of profession.
Canon 1 of the Code of Professional Responsibility provides:

CANON 1. A LAWYER SHALL UPHOLD THE CONSTITUTION,

Aggravating respondent's wrongdoing was his receipt of attorney's fees. The
OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT
PAO was created for the purpose of providing free legal assistance to FOR THE LAW AND LEGAL PROCESSES.

indigent litigants.[27] Section 14(3), Chapter 5, Title III, Book V of the Revised

Administrative Code provides: Every lawyer is obligated to uphold the law.[30] This undertaking includes the

observance of the above-mentioned prohibitions blatantly violated by

Sec. 14. xxx
respondent when he accepted the complainant's cases and received

attorney's fees in consideration of his legal services. Consequently,

The PAO shall be the principal law office of the
Government in extending free legal assistance to indigent respondent's acceptance of the cases was also a breach of Rule 18.01 of the
persons in criminal, civil, labor, administrative and other
quasi-judicial cases.[28] Code of Professional Responsibility because the prohibition on the private

practice of profession disqualified him from acting as the complainant's

counsel.
Aside from disregarding the prohibitions against handling private cases and There is, however, insufficient basis to find respondent guilty of violating

accepting attorney's fees, respondent also surreptitiously deceived the Rule 16.01 of the Code of Professional Responsibility. Respondent did not

complainant. Not only did he fail to file a complaint against the Jovellanoses hold the money for the benefit of the complainant but accepted it as his

(which in the first place he should not have done), respondent also led the attorney's fees. He neither held the amount in trust for the complainant

complainant to believe that he really filed an action against the (such as an amount delivered by the sheriff in satisfaction of a judgment

Jovellanoses. He even made it appear that the cases were being tried and obligation in favor of the client)[33] nor was it given to him for a specific

asked the complainant to pay his appearance fees for hearings that never purpose (such as amounts given for filing fees and bail

took place. These acts constituted dishonesty, a violation of the lawyer's bond).[34] Nevertheless, respondent should return the P5,000 as he, a

oath not to do any falsehood.[31] government lawyer, was not entitled to attorney's fees and not allowed to

accept them.[35]

Respondent's conduct in office fell short of the integrity and good moral WHEREFORE, Atty. Jose R. Imbang is found guilty of violating the lawyers

character required of all lawyers, specially one occupying a public office. oath, Canon 1, Rule 1.01 and Canon 18, Rule 18.01 of the Code of

Lawyers in public office are expected not only to refrain from any act or Professional Responsibility. Accordingly, he is hereby DISBARRED from the

omission which tend to lessen the trust and confidence of the citizenry in practice of law and his name is ORDERED STRICKEN from the Roll of

government but also uphold the dignity of the legal profession at all times Attorneys. He is also ordered to return to complainant the amount of P5,000

and observe a high standard of honesty and fair dealing. A government with interest at the legal rate, reckoned from 1995, within 10 days from

lawyer is a keeper of public faith and is burdened with a high degree of social receipt of this resolution.

responsibility, higher than his brethren in private practice.[32]

 GISELA HUYSSEN, A.C. No. 6707
Let a copy of this resolution be attached to the personal records of Complainant,
Present:
respondent in the Office of the Bar Confidant and notice of the same be
PANGANIBAN, C.J.,
served on the Integrated Bar of the Philippines and on the Office of the Court PUNO,
QUISUMBING,*
Administrator for circulation to all courts in the country. YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
SO ORDERED.
AUSTRIA-MARTINEZ,
- versus - CORONA,
CARPIO MORALES,
CALLEJO, SR.,
AZCUNA,
EN BANC TINGA,
CHICO-NAZARIO, and
GARCIA, JJ.

Promulgated:
ATTY. FRED L. GUTIERREZ,
Respondent. March 24, 2006

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

DECISION
PER CURIAM:
This treats of a Complaint[1] for Disbarment filed by Gisela Huyssen against
respondent Atty. Fred L. Gutierrez.
Complainant alleged that in 1995, while respondent was still connected with
the Bureau of Immigration and Deportation (BID), she and her three sons,
who are all American citizens, applied for Philippine Visas under Section
13[g] of the Immigration Law. Respondent told complainant that in order
that their visa applications will be favorably acted upon by the BID they
needed to deposit a certain sum of money for a period of one year which
could be withdrawn after one year. Believing that the deposit was indeed
required by law, complainant deposited with respondent on six different
occasions from April 1995 to April 1996 the total amount of
US$20,000. Respondent prepared receipts/vouchers as proofs that he
received the amounts deposited by the complainant but refused to give her
copies of official receipts despite her demands. After one year, complainant
demanded from respondent the return of US$20,000 who assured her that
said amount would be returned. When respondent failed to return the sum
deposited, the World Mission for Jesus (of which complainant was a
member) sent a demand letter to respondent for the immediate return of
the money. In a letter dated 1 March 1999, respondent promised to release
the amount not later than 9 March 1999. Failing to comply with his promise,
the World Mission for Jesus sent another demand letter. In response
thereto, respondent sent complainant a letter dated 19 March
1999 explaining the alleged reasons for the delay in the release of deposited
amount. He enclosed two blank checks postdated to 6 April and 20 April
1999 and authorized complainant to fill in the amounts. When complainant
deposited the postdated checks on their due dates, the same were
dishonored because respondent had stopped payment on the
same. Thereafter, respondent, in his letter to complainant dated 25 April
1999, explained the reasons for stopping payment on the checks, and gave
complainant five postdated checks with the assurance that said checks
would be honored. Complainant deposited the five postdated checks on
their due dates but they were all dishonored for having been drawn against
insufficient funds or payment thereon was ordered stopped by
respondent. After respondent made several unfulfilled promises to return
the deposited amount, complainant referred the matter to a lawyer who
sent two demand letters to respondent. The demand letters remained
unheeded.
Thus, a complaint[2] for disbarment was filed by complainant in the
Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP).
On 15 November 2000, Victor C. Fernandez, Director for Bar Discipline,
required[3] respondent to submit his answer within 15 days from receipt
thereof.
In his Counter-Affidavit dated 2 July 2001,[4] respondent denied the
allegations in the complaint claiming that having never physically received
the money mentioned in the complaint, he could not have appropriated or
pocketed the same. He said the amount was used as payment for services
 c) The application was filed, processed
rendered for obtaining the permanent visas in the Philippines. Respondent
and followed-up by the said Atty. Mendoza until the same
explained thus: was finished and the corresponding permanent visa were
obtained by the complainant and her family. Her son
Marcus Huyssen was given an independent permanent
a) Through a close-
visa while the other two were made as dependents of the
friend, Jovie Galaraga, a Pastor and likewise a friend of the
complainant. In between the processing of the papers and
complainant, the latter was introduced to me at my office
becoming very close to the complainant, I became the
at the Bureau of Immigration with a big problem
intermediary between complainant and their counsel so
concerning their stay in the Philippines, herself and three
much that every amount that the latter would request for
sons, one of which is already of major age while the two
whatever purpose was coursed through me which request
others were still minors then. Their problem was the fact
were then transmitted to the complainant and every
that since they have been staying in the Philippines for
amount of money given by the complainant to their
almost ten (10) years as holders of missionary visas (9G)
counsel were coursed thru me which is the very reason
they could no longer extend their said status as under the
why my signature appears in the vouchers attached in the
law and related polic[i]es of the government, missionary
complaint-affidavit;
visa holders could only remain as such for ten (10) years
after which they could no longer extend their said status
d) That as time goes by, I noticed that
and have to leave the country.
the amount appeared to be huge for services of a lawyer
that I myself began to wonder why and, to satisfy my
b) Studying their case and being U.S.
curiosity, I met Atty. Mendoza and inquired from him
Citizen (sic), I advised them that they better secure a
regarding the matter and the following facts were
permanent visa under Section 3 of the Philippine
revealed to me:
Immigration Law otherwise known as Quota Visa and
thereafter, provided them with list of the requirements in
1) That what was
obtaining the said visa, one of which is that the applicant
used by the complainant as her show
must have a $40,000 deposited in the bank. I also inform
money from the bank is not really her
that her son Marcus Huyssen, who was already of major
money but money of World Mission for
age, has to have the same amount of show money
Jesus, which therefore is a serious
separate of her money as he would be issued separate
violation of the Immigration Law as
visa, while her two minor children would be included as
there was a misrepresentation. This fact
her dependents in her said visa application. I advised them
was confirmed later when the said
to get a lawyer (sic), complainant further requested me to
entity sent their demand letter to the
refer to her to a lawyer to work for their application, which
undersigned affiant and which is
I did and contacted the late Atty. Mendoza, an
attached to the complaint-affidavit;
Immigration lawyer, to do the job for the complainant and
her family.
2) That worst, the
same amount used by the complainant,
 was the very same amount used by her
son Marcus Huyssen, in obtaining
his separate permanent visa.These acts
of the complainant and her son could
have been a ground for deportation and
likewise constitute criminal offense
under the Immigration Law and the
Revised Penal Code. These could have
been the possible reason why
complainant was made to pay for quite
huge amount.
e) That after they have secured their
visas, complainant and her family became very close to
undersigned and my family that I was even invited to their
residence several times;
f) However after three years,
complainant demanded the return of their money given
and surprisingly they want to recover the same from
me. By twist of fate, Atty. Mendoza is no longer around,
he died sometime 1997;
g) That it is unfortunate that the real
facts of the matter is now being hidden and that the
amount of money is now being sought to be recovered
from me;
h) That the fact is I signed the vouchers
and being a lawyer I know the consequences of having
signed the same and therefore I had to answer for it and
pay. I tried to raised the fund needed but up to the
present my standby loan application has not been
released and was informed that the same would only be
forthcoming second week of August. The same should
have been released last March but was aborted due to
prevalent condition. The amount to be paid, according to
the complainant has now become doubled plus attorneys
fees of P200,000.00.
Complainant submitted her evidence on 4 September 2002 and April 2003,
and filed her Formal Offer of Evidence on 25 August 2003.
On several occasions, the complaint was set for reception of respondents
evidence but the scheduled hearings (11 settings) were all reset at the
instance of the respondent who was allegedly out of the country to attend
to his clients needs. Reception of respondents evidence was scheduled for
the last time on 28 September 2004 and again respondent failed to appear,
despite due notice and without just cause.
On 5 November 2004, Investigating Commissioner Milagros V. San Juan
submitted her report[5] recommending the disbarment of respondent. She
justified her recommendation in this manner:
At the outset it should be noted that there is no question
that respondent received the amount of US$20,000 from
complainant, as respondent himself admitted that he
signed the vouchers (Annexes A to F of complainant)
showing his receipt of said amount from complainant.
Respondent however claims that he did not appropriate
the same for himself but that he delivered the said
amount to a certain Atty. Mendoza. This defense raised by
respondent is untenable considering the documentary
evidence submitted by complainant. On record is the 1
March 1999 letter of respondent addressed to the World
Mission for Jesus (Annex H of Complaint) where he stated
thus:
 I really understand your feelings on the
delay of the release of the deposit but I
repeat, nobody really intended that the
thing would happen that way. Many
events were the causes of the said delay
particularly the death of then
Commissioner L. Verceles, whose
sudden death prevented us the needed
papers for the immediate release. It was
only from compiling all on the first week
of January this year, that all the said
papers were recovered, hence, the
process of the release just started
though some important papers were
already finished as early as the last
quarter of last year. We are just going
through the normal standard operating
procedure and there is no day since
January that I do not make any follow
ups on the progress of the same.
and his letter dated 19 March 1999 (Annex L of Complaint)
where he stated thus:
I am sending you my personal checks to
cover the refund of the amount
deposited by your good self in
connection with the procurement of
your permanent visa and that of your
family. It might take some more time
before the Bureau could release the
refund as some other pertinent papers
are being still compiled are being looked
at the files of the late
Commissioner Verceles, who approved
your visa and who died of heart attack.
Anyway, I am sure that everything
would be fine later as all the documents
needed are already intact. This is just a
bureaucratic delay.
From the above letters, respondent makes it appear that
the US$20,000 was officially deposited with the Bureau of
Immigration and Deportation. However, if this is true, how
come only Petty Cash Vouchers were issued by
respondent to complainant to prove his receipt of the said
sum and official receipts therefore were never issued by
the said Bureau? Also, why would respondent issue his
personal checks to cover the return of the money to
complainant if said amount was really officially deposited
with the Bureau of Immigration? All these actions of
respondent point to the inescapable conclusion that
respondent received the money from complainant and
appropriated the same for his personal use. It should also
be noted that respondent has failed to establish that the
late Atty. Mendoza referred to in his Counter-Affidavit
really exists. There is not one correspondence from Atty.
Mendoza regarding the visa application of complainant
and his family, and complainant has also testified that she
never met this Atty. Mendoza referred to by respondent.
Considering that respondent was able to perpetrate the
fraud by taking advantage of his position with the Board
of Special Inquiry of the Bureau of Immigration and
Deportation, makes it more reprehensible as it has caused
damage to the reputation and integrity of said office. It is
submitted that respondent has violated Rule 6.02 of
Canon 6 of the Code of Professional Responsibility which
reads:
A lawyer in the government service shall
not use his public position to promote or
advance his private interests, nor allow
the latter to interfere with his public
duties.

On 4 November 2004, the IBP Board of Governors approved [6] the
Investigating Commissioners report with modification, thus:
RESOLVED to ADOPT and APPROVE, as it 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 applicable laws and
rules, and considering respondents violation of
Rule 6.02 of Canon 6 of the Code of Professional
Responsibility, Atty. Fred L. Gutierrez is
hereby DISBARRED from the practice of law
and ordered to return the amount with legal
interest from receipt of the money until
payment. This case shall be referred to the Office
of the Ombudsman for prosecution for violation
of Anti-Graft and Corrupt Practices Acts and to
the Department of Justice for appropriate
administrative action.
We agree with the IBP Board of Governors that respondent should be
severely sanctioned.
We begin with the veritable fact that lawyers in government service in the
discharge of their official task have more restrictions than lawyers in private
practice. Want of moral integrity is to be more severely condemned in a
lawyer who holds a responsible public office.[7]
It is undisputed that respondent admitted[8] having received the US$20,000
from complainant as shown by his signatures in the petty cash
vouchers[9] and receipts[10] he prepared, on the false representation that
that it was needed in complainants application for visa with the
BID. Respondent denied he misappropriated the said amount and
interposed the defense that he delivered it to a certain Atty. Mendoza who
assisted complainant and children in their application for visa in the
BID.[11] Such defense remains unsubstantiated as he failed to submit
evidence on the matter. While he claims that Atty. Mendoza already died,
he did not present the death certificate of said Atty. Mendoza.Worse, the
action of respondent in shifting the blame to someone who has been
naturally silenced by fate, is not only impudent but downright
ignominious. When the integrity of a member of the bar is challenged, it is
not enough that he deny the charges against him; he must meet the issue
and overcome the evidence against him.[12] He must show proof that he still
maintains that degree of morality and integrity which at all times is expected
of him. In the case at bar, respondent clearly fell short of his duty. Records
show that even though he was given the opportunity to answer the charges
and controvert the evidence against him in a formal investigation, he failed,
without any plausible reason, to appear several times whenever the case
was set for reception of his evidence despite due notice.
The defense of denial proferred by respondent is, thus, not
convincing. It is settled that denial is inherently a weak defense. To be
believed, it must be buttressed by a strong evidence of non-culpability;
otherwise, such denial is purely self-serving and is with nil evidentiary value.

When respondent issued the postdated checks as his moral
obligation, he indirectly admitted the charge. Such admissions were also
apparent in the following letters of respondent to complainant:
1) Letter[13] dated 01 March 1992, pertinent portion of which
reads:
Be that as it may, may I assure you for the last
time that the said deposit is forthcoming, the latest of
which is 09 March 1999. Should it not be released on said
date, I understand to pay the same to you out of my
personal money on said date. No more reasons and no
more alibis. Send somebody here at the office on that day
and the amount would be given to you wether (sic) from
the Bureau or from my own personal money.
2) Letter[14] dated 19 March 1999, reads in part:
I am sending you my personal checks to cover the
refund of the amount deposited by your goodself in
connection with the procurement of your permanent visa
and that of your family.
It might take some more time before the Bureau
could release the refund as some other pertinent papers
are still being compiled and are being looked at the files of
the late Commissioner Verceles, who approved your visa
and who died of heart attack. Anyway, I am sure that
everything would be fine later as all the documents
needed are already intact. This is just a bureaucratic delay.
xxxx
As you would see, I have to pay you in peso. I
have issued you 2 checks, one dated April 6, 1999 and the
other one dated April 20, 1999. I leave the amount vacant
because I would want you to fill them up on their due
dates the peso equivalent to $10,000 respectively. This is
to be sure that the peso equivalent of your P20,000 would
be well exchanged. I have postdated them to enable me
to raise some more pesos to cover the whole amount but
dont worry as the Lord had already provided me the
means.
3) Letter[15] dated 25 April 1999 provides:
Anyway, let me apologize for all these troubles.
You are aware that I have done my very best for the early
return of your money but the return is becoming bleak as
I was informed that there are still papers lacking. When I
stopped the payment of the checks I issued, I was of the
impression that everything is fine, but it is not. I guess it is
time for me to accept the fact that I really have to
personally return the money out of my own. The issue
should stop at my end. This is the truth that I must face. It
may hurt me financially but it would set me free from
worries and anxieties.
I have arranged for a loan from money lenders
and was able to secure one last Saturday the releases of
which are on the following:
May 4, 1999- 200,000
May 11, 1999 -200,000
May 20, 1999-200,000
June 4, 1999-200,000
 I have given my property (lot situated in the
Normally, this is not the actuation of one who is falsely accused of
province) as my collateral.
appropriating the money of another. As correctly observed by the
I am therefore putting an end to this trouble. I am
Investigating Commissioner, respondent would not have issued his personal
issuing four checks which I assure you will be sufficiently
funded on their due dates by reason of checks if said amount were officially deposited with the BID. This is an
my aforestated loans. Just bear with me for the last time, admission of misconduct.
if any of these checks, is returned, dont call me anymore.
Just file the necessary action against me, I just had to put
an end to this matter and look forward. x x x Respondents act of asking money from complainant in
consideration of the latters pending application for visas is violative of Rule

4) Letter[16] dated 12 May 1999, which reads:
The other day I deposited the amount
of P289,000 to the bank to cover the first check I issued.
In fact I stopped all payments to all other checks that are
becoming due to some of my creditors to give preference
to the check I issued to you.
This morning when I went to the Bank, I learned
that the bank instead of returning the other checks I
requested for stop payment - instead honored them and
mistakenly returned your check. This was a very big
surprise to me and discouragement for I know it would
really upset you.
In view of this I thought of sending you the
amount of P200,000 in cash which I initially plan to
withdraw from the Bank. However, I could not entrust the
same amount to the bearer nor can I bring the same to
your place considering that its quite a big amount. I am
just sending a check for you to immediately deposit today
and I was assured by the bank that it would be honored
this time.
1.01[17] of the Code of Professional Responsibility, which prohibits members
of the Bar from engaging or participating in any unlawful, dishonest, or
deceitful acts. Moreover, said acts constitute a breach of Rule 6.02[18] of the
Code which bars lawyers in government service from promoting their
private interest. Promotion of private interest includes soliciting gifts or
anything of monetary value in any transaction requiring the approval of his
office or which may be affected by the functions of his
office.[19] Respondents conduct in office betrays the integrity and good
moral character required from all lawyers, especially from one occupying a
high public office. A lawyer in public office is expected not only to refrain
from any act or omission which might tend to lessen the trust and
confidence of the citizenry in government; he must also uphold the dignity
of the legal profession at all times and observe a high standard of honesty
and fair dealing. Otherwise said, a lawyer in government service is a keeper
of the public faith and is burdened with high degree of social responsibility,
perhaps higher than his brethren in private practice.
 In a desperate attempt to put up a smoke or to camouflage his
misdeed, he went on committing another by issuing several worthless
checks, thereby compounding his case.
In a recent case, we have held that the issuance of worthless checks
constitutes gross misconduct,[20] as the effect transcends the private
interests of the parties directly involved in the transaction and touches the
interests of the community at large. The mischief it creates is not only a
wrong to the payee or holder, but also an injury to the public since the
circulation of valueless commercial papers can very well pollute the
channels of trade and commerce, injure the banking system and eventually
hurt the welfare of society and the public interest. Thus, paraphrasing
Blacks definition, 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.[21]
Consequently, we have held that the act of a person in issuing a check
knowing at the time of the issuance that he or she does not have sufficient
funds in, or credit with, the drawee bank for the payment of the check in
full upon its presentment, is also a manifestation of moral turpitude. [22]
Respondents acts are more despicable. Not only did he misappropriate the
money of complainant; worse, he had the gall to prepare receipts with the
letterhead of the BID and issued checks to cover up his misdeeds. Clearly,
he does not deserve to continue, being a member of the bar.
Time and again, we have declared that the practice of law is a noble
profession. It is a special privilege bestowed only upon those who are
competent intellectually, academically and morally. A lawyer must at all
times conduct himself, especially in his dealings with his clients and the
public at large, with honesty and integrity in a manner beyond reproach. He
must faithfully perform his duties to society, to the bar, to the courts and to
his clients. A violation of the high standards of the legal profession subjects
the lawyer to administrative sanctions which includes suspension and
disbarment.[23] More importantly, possession of good moral character must
be continuous as a requirement to the enjoyment of the privilege of law
practice; otherwise, the loss thereof is a ground for the revocation of such
privilege.[24]
Indeed, the primary objective of administrative cases against lawyers is not
only to punish and discipline the erring individual lawyers but also to
safeguard the administration of justice by protecting the courts and the
public from the misconduct of lawyers, and to remove from the legal
profession persons whose utter disregard of their lawyers oath have proven
them unfit to continue discharging the trust reposed in them as members
of the bar.[25] These pronouncement gain practical significance in the case
at bar considering that respondent was a former member of the Board of
Special Inquiry of the BID. It bears stressing also that government lawyers
who are public servants owe fidelity to the public service, a public trust. As
such, government lawyers should be more sensitive to their professional
obligations as their disreputable conduct is more likely to be magnified in
the public eye.[26]
 with legal interest from his receipt of the money until payment. This case
As a lawyer, who was also a public officer, respondent miserably failed to shall be referred to the Office of the Ombudsman for criminal prosecution
cope with the strict demands and high standards of the legal profession. for violation of Anti-Graft and Corrupt Practices Acts and to the Department
of Justice for appropriate administrative action. Let copies of this Decision
Section 27, Rule 138 of the Revised Rules of Court mandates that a be furnished the Bar Confidant to be spread on the records of the
lawyer may be disbarred or suspended by this Court for any of the following respondent; the Integrated Bar of the Philippines for distribution to all its
acts: (1) deceit; (2) malpractice; (3) gross misconduct in office; (4) grossly chapters; and the Office of the Court Administrator for dissemination to all
immoral conduct; (5) conviction of a crime involving moral turpitude ; (6) courts throughout the country.
violation of the lawyers oath; (7) willful disobedience of any lawful order of
a superior court; and (8) willfully appearing as an attorney for a party
SO ORDERED.
without authority to do so.[27]
In Atty. Vitriolo v. Atty. Dasig,[28] we ordered the disbarment of a lawyer
who, during her tenure as OIC, Legal Services, Commission on Higher
Education, demanded sums of money as consideration for the approval of
applications and requests awaiting action by her office. In Lim v.
Barcelona,[29] we also disbarred a senior lawyer of the National Labor EN BANC
Relations Commission, who was caught by the National Bureau of
A.C. No. 6705 March 31, 2006
Investigation in the act of receiving and counting money extorted from a
certain person. RUTHIE LIM-SANTIAGO, Complainant,
Respondents acts constitute gross misconduct; and consistent with the vs.
ATTY. CARLOS B. SAGUCIO, Respondent.
need to maintain the high standards of the Bar and thus preserve the faith
of the public in the legal profession, respondent deserves the ultimate DECISION

penalty of expulsion from the esteemed brotherhood of lawyers.[30]

CARPIO, J.:

WHEREFORE, Atty. Fred L. Gutierrez is hereby DISBARRED from the practice The Case

of law and ordered to return the amount he received from the complainant
This is a disbarment complaint against Atty. Carlos B. Sagucio for violating
Rule 15.03 of the Code of Professional Responsibility and for defying the
prohibition against private practice of law while working as government
prosecutor.
The Facts
Ruthie Lim-Santiago ("complainant") is the daughter of Alfonso Lim and
Special Administratrix of his estate. 1Alfonso Lim is a stockholder and the
former President of Taggat Industries, Inc. 2
Atty. Carlos B. Sagucio ("respondent") was the former Personnel Manager
and Retained Counsel of Taggat Industries, Inc. 3 until his appointment as
Assistant Provincial Prosecutor of Tuguegarao, Cagayan in 1992. 4
Taggat Industries, Inc. ("Taggat") is a domestic corporation engaged in the
operation of timber concessions from the government. The Presidential
Commission on Good Government sequestered it sometime in 1986, 5 and
its operations ceased in 1997. 6
Sometime in July 1997, 21 employees of Taggat ("Taggat employees") filed
a criminal complaint entitled "Jesus Tagorda, Jr. et al. v. Ruthie Lim-
Santiago," docketed as I.S. No. 97-240 ("criminal complaint"). 7 Taggat
employees alleged that complainant, who took over the management and
control of Taggat after the death of her father, withheld payment of their
salaries and wages without valid cause from 1 April 1996 to 15 July 1997. 8
Respondent, as Assistant Provincial Prosecutor, was assigned to conduct
the preliminary investigation. 9 He resolved the criminal complaint by
recommending the filing of 651 Informations 10 for violation of Article
288 11 in relation to Article 116 12 of the Labor Code of the Philippines. 13
Complainant now charges respondent with the following violations:
1. Rule 15.03 of the Code of Professional Responsibility
Complainant contends that respondent is guilty of representing conflicting
interests. Respondent, being the former Personnel Manager and Retained
Counsel of Taggat, knew the operations of Taggat very well. Respondent
should have inhibited himself from hearing, investigating and deciding the
case filed by Taggat employees. 14 Furthermore, complainant claims that
respondent instigated the filing of the cases and even harassed and
threatened Taggat employees to accede and sign an affidavit to support
the complaint. 15
2. Engaging in the private practice of law while working as a government
prosecutor
Complainant also contends that respondent is guilty of engaging in the
private practice of law while working as a government prosecutor.
Complainant presented evidence to prove that respondent
received P10,000 as retainer’s fee for the months of January and February
1995, 16 another P10,000 for the months of April and May
1995, 17 and P5,000 for the month of April 1996. 18
Complainant seeks the disbarment of respondent for violating Rule 15.03
of the Code of Professional Responsibility and for defying the prohibition
against private practice of law while working as government prosecutor.
Respondent refutes complainant’s allegations and counters that
complainant was merely aggrieved by the resolution of the criminal
complaint which was adverse and contrary to her expectation. 19
Respondent claims that when the criminal complaint was filed, respondent
had resigned from Taggat for more than five years. 20 Respondent asserts
that he no longer owed his undivided loyalty to Taggat. 21 Respondent
argues that it was his sworn duty to conduct the necessary preliminary
investigation. 22 Respondent contends that complainant failed to establish
lack of impartiality when he performed his duty. 23 Respondent points out
that complainant did not file a motion to inhibit respondent from hearing
the criminal complaint 24 but instead complainant voluntarily executed and
filed her counter-affidavit without mental reservation. 25
Respondent states that complainant’s reason in not filing a motion to
inhibit was her impression that respondent would exonerate her from the
charges filed as gleaned from complainant’s statement during the hearing
conducted on 12 February 1999:
xxx
Q. (Atty. Dabu). What do you mean you didn’t think he would do it,
Madam Witness?
A. Because he is supposed to be my father’s friend and he was working
with my Dad and he was supposed to be trusted by my father. And he
came to me and told me he gonna help me. x x x. 26
Respondent also asserts that no conflicting interests exist because he was
not representing Taggat employees or complainant. Respondent claims he
was merely performing his official duty as Assistant Provincial
Prosecutor. 27Respondent argues that complainant failed to establish that
respondent’s act was tainted with personal interest, malice and bad
faith. 28
Respondent denies complainant’s allegations that he instigated the filing
of the cases, threatened and harassed Taggat employees. Respondent
claims that this accusation is bereft of proof because complainant failed to
mention the names of the employees or present them for cross-
examination. 29
Respondent does not dispute his receipt, after his appointment as
government prosecutor, of retainer fees from complainant but claims that
it
was only on a case-to-case basis and it ceased in 1996. 30 Respondent
contends that the fees were paid for his consultancy services and not for
representation. Respondent submits that consultation is not the same as
representation and that rendering consultancy services is not
prohibited. 31 Respondent, in his Reply-Memorandum, states:
x x x [I]f ever Taggat paid him certain amounts, these were paid voluntarily
by Taggat without the respondent’s asking, intended as token consultancy
fees on a case-to-case basis and not as or for retainer fees. These
payments do not at all show or translate as a specie of ‘conflict of interest’.
Moreover, these consultations had no relation to, or connection with, the
above-mentioned labor complaints filed by former Taggat employees. 32
Respondent insists that complainant’s evidence failed to prove that when
the criminal complaint was filed with the Office of the Provincial
Prosecutor of Cagayan, respondent was still the retained counsel or legal
consultant. 33
While this disbarment case was pending, the Resolution and Order issued
by respondent to file 651 Informations against complainant was reversed
and set aside by Regional State Prosecutor of Cagayan Rodolfo B. Cadelina
last 4 January 1999. 34 Hence, the criminal complaint was dismissed. 35
The IBP’s Report and Recommendation
The Integrated Bar of the Philippines’ Investigating Commissioner Ma.
Carmina M. Alejandro-Abbas ("IBP Commissioner Abbas") heard the
case 36 and allowed the parties to submit their respective
memoranda. 37 Due to IBP Commissioner Abbas’ resignation, the case was
reassigned to Commissioner Dennis A.B. Funa ("IBP Commissioner
Funa"). 38
After the parties filed their memoranda and motion to resolve the case,
the IBP Board of Governors issued Resolution No. XVI-2004-479 ("IBP
Resolution") dated 4 November 2004 adopting with modification 39 IBP
Commissioner Funa’s Report and Recommendation ("Report") finding
respondent guilty of conflict of interests, failure to safeguard a former
client’s interest, and violating the prohibition against the private practice
of law while being a government prosecutor. The IBP Board of Governors
recommended the imposition of a penalty of three years suspension from
the practice of law. The Report reads:
Now the issue here is whether being a former lawyer of Taggat conflicts
with his role as Assistant Provincial Prosecutor in deciding I.S. No. 97-240.
A determination of this issue will require the test of whether the matter in
I.S. No. 97-240 will conflict with his former position of Personnel Manager
and Legal Counsel of Taggat.
I.S. No. 97-240 was filed for "Violation of Labor Code" (see Resolution of
the Provincial Prosecutors Office, Annex "B" of Complaint). Herein
Complainant, Ruthie Lim-Santiago, was being accused as having
the "management and control" of Taggat (p. 2, Resolution of the Prov.
Pros. Office, supra).
Clearly, as a former Personnel Manager and Legal Counsel of Taggat,
herein Respondent undoubtedly handled the personnel and labor concerns
of Taggat. Respondent, undoubtedly dealt with and related with the
employees of Taggat. Therefore, Respondent undoubtedly dealt with and
related with complainants in I.S. No. 97-240. The issues, therefore, in I.S.
No. 97-240, are very much familiar with Respondent. While the issues of
unpaid salaries pertain to the periods 1996-1997, the mechanics and
personalities in that case are very much familiar with Respondent.
A lawyer owes something to a former client. Herein Respondent owes to
Taggat, a former client, the duty to "maintain inviolate the client’s
confidence or to refrain from doing anything which will injuriously affect
him in any matter in which he previously represented him" (Natam v.
Capule, 91 Phil. 640; p. 231, Agpalo, Legal Ethics, 4th ed.)
Respondent argues that as Assistant Provincial Prosecutor, he does not
represent any client or any interest except justice. It should not be
forgotten, however, that a lawyer has an immutable duty to a former
client with respect to matters that he previously handled for that former
client. In this case, matters relating to personnel, labor policies, and labor
relations that he previously handled as Personnel Manager and Legal
Counsel of Taggat. I.S. No. 97-240 was for "Violation of the Labor
Code." Here lies the conflict. Perhaps it would have been different had I.S.
No. 97-240 not been labor-related, or if Respondent had not been a
Personnel Manager concurrently as Legal Counsel. But as it is, I.S. No. 97-
240 is labor-related and Respondent was a former Personnel Manager of
Taggat.
xxxx
While Respondent ceased his relations with Taggat in 1992 and the unpaid
salaries being sought in I.S. No. 97-240 were of the years 1996 and 1997,
the employees and management involved are the very personalities he
dealt with as Personnel Manager and Legal Counsel of Taggat.
Respondent dealt with these persons in his fiduciary relations with Taggat.
Moreover, he was an employee of the corporation and part of its
management.
xxxx
As to the propriety of receiving "Retainer Fees" or "consultancy fees" from
herein Complainant while being an Assistant Provincial Prosecutor, and for
rendering legal consultancy work while being an Assistant Provincial
Prosecutor, this matter had long been settled. Government prosecutors
are prohibited to engage in the private practice of law (see Legal and
Judicial Ethics, Ernesto Pineda, 1994 ed., p. 20; People v. Villanueva, 14
SCRA 109; Aquino v. Blanco 70 Phil. 647). The act of being a legal
consultant is a practice of law. To engage in the practice of law is to do any
of those acts that are characteristic of the legal profession (In re: David, 93
Phil. 461). It covers any activity, in or out of court, which required the
application of law, legal principles, practice or procedures and calls for
legal knowledge, training and experience (PLA v. Agrava, 105 Phil.
173; People v. Villanueva, 14 SCRA 111; Cayetano v. Monsod, 201 SCRA
210).
Respondent clearly violated this prohibition.
As for the secondary accusations of harassing certain employees of Taggat
and instigating the filing of criminal complaints, we find the evidence
insufficient.
Accordingly, Respondent should be found guilty of conflict of interest,
failure to safeguard a former client’s interest, and violating the prohibition
against the private practice of law while being a government prosecutor. 40
The IBP Board of Governors forwarded the Report to the Court as provided
under Section 12(b), Rule 139-B 41 of the Rules of Court.
The Ruling of the Court
The Court exonerates respondent from the charge of violation of Rule
15.03 of the Code of Professional Responsibility ("Code"). However, the
Court finds respondent liable for violation of Rule 1.01, Canon 1 of the
Code of Professional Responsibility against unlawful
conduct. 42 Respondent committed unlawful conduct when he violated
Section 7(b)(2) of the Code of Conduct and Ethical Standards for Public
Officials and Employees or Republic Act No. 6713 ("RA 6713").
Canon 6 provides that the Code "shall apply to lawyers in government
service in the discharge of their official duties." 43 A government lawyer is
thus bound by the prohibition "not [to] represent conflicting
interests." 44However, this rule is subject to certain limitations. The
prohibition to represent conflicting interests does not apply when no
conflict of interest exists, when a written consent of all concerned is given
after a full disclosure of the facts or when no true attorney-client
relationship exists. 45 Moreover, considering the serious consequence of
the disbarment or suspension of a member of the Bar, clear preponderant
evidence is necessary to justify the imposition of the administrative
penalty. 46
Respondent is also mandated under Rule 1.01 of Canon 1 not to engage in
"unlawful x x x conduct." Unlawful conduct includes violation of the
statutory prohibition on a government employee to "engage in the private
practice of [his] profession unless authorized by the Constitution or law,
provided, that such practice will not conflict or tend to conflict with [his]
official functions." 47
Complainant’s evidence failed to substantiate the claim that respondent
represented conflicting interests
In Quiambao v. Bamba, 48 the Court enumerated various tests to
determine conflict of interests. One test of inconsistency of interests is
whether the lawyer will be asked to use against his former client any
confidential information acquired through their connection or previous
employment. 49 In essence, what a lawyer owes his former client is to
maintain inviolate the client’s confidence or to refrain from doing anything
which will injuriously affect him in any matter in which he previously
represented him. 50
In the present case, we find no conflict of interests when respondent
handled the preliminary investigation of the criminal complaint filed by
Taggat employees in 1997. The issue in the criminal complaint pertains to
non-payment of wages that occurred from 1 April 1996 to 15 July 1997.
Clearly, respondent was no longer connected with Taggat during that
period since he resigned sometime in 1992.
In order to charge respondent for representing conflicting interests,
evidence must be presented to prove that respondent used against Taggat,
his former client, any confidential information acquired through his
previous employment. The only established participation respondent had
with respect to the criminal complaint is that he was the one who
conducted the preliminary investigation. On that basis alone, it does not
necessarily follow that respondent used any confidential information from
his previous employment with complainant or Taggat in resolving the
criminal complaint.
The fact alone that respondent was the former Personnel Manager and
Retained Counsel of Taggat and the case he resolved as government
prosecutor was labor-related is not a sufficient basis to charge respondent
for representing conflicting interests. A lawyer’s immutable duty to a
former client does not cover transactions that occurred beyond the
lawyer’s employment with the client. The intent of the law is to impose
upon the lawyer the duty to protect the client’s interests only on matters
that he previously handled for the former client and not for matters that
arose after the lawyer-client relationship has terminated.
Further, complainant failed to present a single iota of evidence to prove
her allegations. Thus, respondent is not guilty of violating Rule 15.03 of the
Code.
Respondent engaged in the private practice of law while working as a
government prosecutor
The Court has defined the practice of law broadly as –
x x x any activity, in or out of court, which requires the application of law,
legal procedure, knowledge, training and experience. "To engage in the
practice of law is to perform those acts which are characteristics of the
profession. Generally, to practice law is to give notice or render any kind of
service, which device or service requires the use in any degree of legal
knowledge or skill." 51
"Private practice of law" contemplates a succession of acts of the same
nature habitually or customarily holding one’s self to the public as a
lawyer. 52
Respondent argues that he only rendered consultancy services to Taggat
intermittently and he was not a retained counsel of Taggat from 1995 to
1996 as alleged. This argument is without merit because the law does not
distinguish between consultancy services and retainer agreement. For as
long as respondent performed acts that are usually rendered by lawyers
with the use of their legal knowledge, the same falls within the ambit of
the term "practice of law."
Nonetheless, respondent admitted that he rendered his legal services to
complainant while working as a government prosecutor. Even the receipts
he signed stated that the payments by Taggat were for "Retainer’s
fee." 53 Thus, as correctly pointed out by complainant, respondent clearly
violated the prohibition in RA 6713.
However, violations of RA 6713 are not subject to disciplinary action under
the Code of Professional Responsibility unless the violations also constitute
infractions of specific provisions of the Code of Professional Responsibility.
Certainly, the IBP has no jurisdiction to investigate violations of RA 6713 –
the Code of Conduct and Ethical Standards for Public Officials and
Employees – unless the acts involved also transgress provisions of the
Code of Professional Responsibility.
Here, respondent’s violation of RA 6713 also constitutes a violation of Rule
1.01 of Canon 1, which mandates that "[a] lawyer shall not engage in
unlawful, dishonest, immoral or deceitful conduct." Respondent’s
admission that he received from Taggat fees for legal services while serving
as a government prosecutor is an unlawful conduct, which constitutes a
violation of Rule 1.01.
Respondent admitted that complainant also charged him with unlawful
conduct when respondent stated in his Demurrer to Evidence:
In this instant case, the complainant prays that the respondent be
permanently and indefinitely suspended or disbarred from the practice of
the law profession and his name removed from the Roll of Attorneys on
the following grounds:
xxxx
d) that respondent manifested gross misconduct and gross violation of his
oath of office and in his dealings with the public. 54
On the Appropriate Penalty on Respondent
The appropriate penalty on an errant lawyer depends on the exercise of
sound judicial discretion based on the surrounding facts. 55
Under Civil Service Law and rules, the penalty for government employees
engaging in unauthorized private practice of profession is suspension for
six months and one day to one year. 56 We find this penalty appropriate for
respondent’s violation in this case of Rule 1.01, Canon 1 of the Code of
Professional Responsibility.
WHEREFORE, we find respondent Atty. Carlos B. Sagucio GUILTY of
violation of Rule 1.01, Canon 1 of the Code of Professional Responsibility.
Accordingly, we SUSPEND respondent Atty. Carlos B. Sagucio 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 respondent’s 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:
G.R. No. 109870 December 1, 1995
EDILBERTO M. CUENCA, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
RESOLUTION
FRANCISCO, J.:
After his petition for review of the Court of Appeals' judgment1 affirming
his conviction for violation of the "Trust Receipts Law" (Presidential Decree
No. 115) was denied by this Court in a Resolution dated February 9,
1994,2petitioner filed on July 6, 1994 a pleading entitled "SUBSTITUTION
OF COUNSEL WITH MOTION FOR LEAVE TO FILE MOTION FOR NEW
TRIAL"3 setting forth, in relation to the motion for new trial:
6. The Motion for New Trial shall be grounded on newly
discovered evidence and excusible (sic) negligence, and
shall be supported by affidavits of:
(i) an officer of private complainant
corporation who will exculpate
petitioner;
(ii) an admission against interest by a
former officer of the owner of Ultra
Corporation (the Corporation that
employed petitioner), which actually
exercised control over the affairs of
Ultra; and
(iii) the petitioner wherein he will
assert innocence for the first time and
explain why he was unable to do so
earlier.
The Court in its July 27, 1994 Resolution,4 among other things,
granted the substitution but denied the motion for leave to file
motion for new trial, "the petition having been already denied on
February 9, 1994."
Notwithstanding, petitioner on August 8, 1994 filed a "MOTION TO ADMIT
ATTACHED MOTION FOR NEW TRIAL",5 and a "MANIFESTATION AND
SECOND MOTION TO ADMIT" on August 17, 1994.6 The Court thereafter
required the Solicitor General to comment on said motion and
manifestation within ten (10) days from notice, in a Resolution dated
September 7, 1994.7
In the Comment filed after three (3) extensions of time were given by the
Court,8 the Solicitor General himself recommends that petitioner be
entitled to a new trial, proceeding from the same impression that a certain
Rodolfo Cuenca's (petitioner's brother) sworn statement is an admission
against interest which may ultimately exonerate petitioner from criminal
liability. The full text of Mr. Rodolfo Cuenca's "Affidavit"9 reads:
RODOLFO M. CUENCA, Filipino, of legal age, with the
residence at Urdaneta Village, Makati, Metro Manila,
after being duly sworn and (sic) state that:
1. During the years 1967 until February 1983, I was the
President and Chief Executive Officer of Construction
Development Corporation of the Philippines (CDCP).
2. During that period, I controlled an effective majority of
the voting shares of stock of CDCP.
3. Sometime in 1974, upon my initiative, CDCP together
with its affiliated companies, organized a number of
wholly-owned service corporations. One of these was
Ultra International Trading Corporation, whose purpose
was to serve and supply the needs of CDCP and its other
subsidiaries with lower value goods and using Ultra's
financial resources.
4. The directors in Ultra Corporation were nominees of
CDCP, and received the instructions directly from me and
or Mr. Pedro Valdez, Chairman of CDCP.
5. From Ultra's inception, my brother, Mr. Edilberto M.
Cuenca was appointed President and Chief Executive
Officer. On March, 1979, I instructed Ultra through my
brother, Mr. Edilberto Cuenca to purchase for CDCP
various steel materials. These materials were received by
CDCP and are covered by the trust receipts which are the
subject of this case.
6. In 1980, CDCP suffered cashflow problems, and
consciously omitted payment to Ultra for the delivery of
the said steel materials. As a nominee of CDCP, Mr.
Edilberto M. Cuenca merely acted as agent for CDCP. As
such, CDCP provided him with the guarantees needed to
persuade China Bank to issue the said trust receipts. On
the basis of such guarantees, along with informal
assurances issued by CDCP to China Bank that the
transactions of Ultra were undertaken for and on behalf
of CDCP and CDCP Mining Corporation, Ultra was able to
obtain credit facilities, among which included the trust
receipts subject of this case.
7. However, Mr. Edilberto M. Cuenca had no power to
cause the payment of said trust receipts because the
common Treasurer and controller of both CDCP and
Ultra, Ms. Nora Vinluan, acted under my control and I did
not allow her to make the appropriate payments.
8. To my knowledge, CDCP has not paid Ultra the
amounts corresponding to the materials covered by the
trust receipts subject of this case.
9. By the time final demand to pay on the trust receipts
were (sic) served in 1984, Mr. Edilberto Cuenca was no
longer president of Ultra Corporation and could not have
possibly cause (sic) Ultra Corporation to pay.
10. I have executed this affidavit in order to accept
personal responsibility for the trust receipts subject of
this case and to exculpate Mr. Edilberto Cuenca of the
criminal charges which he has asked this Honorable
Court to review.
 11. Accordingly, I also undertake to pay the civil However, the sworn statement of Rodolfo Cuenca is a
obligations arising from the subject trust receipts. declaration against his own interests under Section 38,
Rule 130, Revised Rules of Court and it casts doubt on
( the culpability of his brother Edilberto Cuenca, the
S petitioner. Hence, the alleged confession of guilt should
g be given a hard look by the Court.
d
. The People is inclined to allow petitioner to establish the
) genuineness and due execution of his brother's affidavit
in the interest of justice and fair play.
R
O Under Rule 6.01 of Canon 6 of the Code of Professional
D Responsibility, prosecutors who represent the People of
O the Philippines in a criminal case are not duty bound to
L seek conviction of the accused but to see that justice is
F done. Said Rule 6.01 of Canon 6 states:
O
M Canon 6 — These canons shall apply to
. lawyers in government service in the
C discharge of their official tasks.
U
E Rule 6.01 — The primary duty of a
N lawyer engaged in public prosecution is
C not to convict but to see that justice is
A done. The suppression of facts or the
concealment of witnesses capable of
A establishing the innocence of the
f accused is highly reprehensible and is
f cause for disciplinary action. (Emphasis
i supplied.)
a
n The above duty is well founded on the instruction of the
t U.S. Supreme Court in Berger v. United States, 295 U.S.
78 (1935) that prosecutors represent a sovereign "whose
And the Solicitor General had this to say: obligation to govern impartially is compelling as its
obligation to govern at all; and whose interest, therefore
Ordinarily, it is too late at this stage to ask for a new trial. in a criminal prosecution is not that it shall win a case,
 but that justice shall be done (Time to Rein in the
Prosecution, by Atty. Bruce Fein, published on p. 11, The
Lawyers Review, July 31, 1994). (Emphasis supplied.)10
Although in "Goduco v. CA" (14 SCRA 282 [1965]) decided some twenty
(20) years ago, this Court ruled that it is not authorized to entertain a
motion for reconsideration and/or new trial predicated on allegedly newly
discovered evidence the rationale of which being:
The judgment of the Court of Appeals is conclusive as to
the facts, and cannot be reviewed by the Supreme Court.
Accordingly, in an appeal by certiorari to the Supreme
Court, the latter has no jurisdiction to entertain a motion
for new trial on the ground of newly discovered evidence,
for only questions of fact are involved therein.
the rule now appears to have been relaxed, if not abandoned, in
subsequent cases like "Helmuth, Jr. v. People"11 and "People v.
Amparado".12
In both cases, the Court, opting to brush aside technicalities and despite
the opposition of the Solicitor General, granted new trial to the convicted
accused concerned on the basis of proposed testimonies or affidavits of
persons which the Court considered as newly discovered and probably
sufficient evidence to reverse the judgment of conviction. Being similarly
circumstanced, there is no nagging reason why herein petitioner should be
denied the same benefit. It becomes all the more plausible under the
circumstances considering that the "People" does not raise any objection
to a new trial, for which reason the Solicitor General ought to be specially
commended for displaying once again such statesmanlike gesture of
impartiality. The Solicitor General's finest hour, indeed.
WHEREFORE, petitioner's Motion For New Trial is hereby GRANTED. Let
the case be RE-OPENED and REMANDED to the court of origin for
reception of petitioner's evidence.
SO ORDERED.
Narvasa, C.J., Regalado, Puno and Mendoza, JJ., concur.
[A.C. No. 4018. March 8, 2005]
OMAR P. ALI, complainant, vs. ATTY. MOSIB A. BUBONG, respondent.
DECISION
PER CURIAM:
This is a verified petition for disbarment[1] filed against Atty. Mosib Ali
Bubong for having been found guilty of grave misconduct while holding the
position of Register of Deeds of Marawi City.
It appears that this disbarment proceeding is an off-shoot of the
administrative case earlier filed by complainant against respondent. In said
case, which was initially investigated by the Land Registration Authority
(LRA), complainant charged respondent with illegal exaction; indiscriminate
issuance of Transfer Certificate of Title (TCT) No. T-2821 in the names of
Lawan Bauduli Datu, Mona Abdullah,[2] Ambobae Bauduli Datu, Matabae
Bauduli Datu, Mooamadali Bauduli Datu, and Amenola Bauduli Datu; and
manipulating the criminal complaint filed against Hadji Serad Bauduli Datu
and others for violation of the Anti-Squatting Law. It appears from the
records that the Baudali Datus are relatives of respondent.[3]
The initial inquiry by the LRA was resolved in favor of respondent. The
investigating officer, Enrique Basa, absolved respondent of all the charges
brought against him, thus:
It is crystal clear from the foregoing that complainant not only failed to
prove his case but that he has no case at all against respondent Mosib Ali
Bubong. Wherefore, premises considered, it is respectfully recommended
that the complaint against respondent be dismissed for lack of merit and
evidence.[4]
The case was then forwarded to the Department of Justice for review
and in a report dated 08 September 1992, then Secretary of Justice Franklin
Drilon exonerated respondent of the charges of illegal exaction and infidelity
in the custody of documents. He, however, found respondent guilty of grave
misconduct for his imprudent issuance of TCT No. T-2821 and manipulating
the criminal case for violation of the Anti-Squatting Law instituted against
Hadji Serad Bauduli Datu and the latters co-accused. As a result of this
finding, Secretary Drilon recommended respondents dismissal from service.
On 26 February 1993, former President Fidel V. Ramos issued
Administrative Order No. 41 adopting in toto the conclusion reached by
Secretary Drilon and ordering respondents dismissal from government
service. Respondent subsequently questioned said administrative order
before this Court through a petition for certiorari, mandamus, and
prohibition[5] claiming that the Office of the President did not have the
authority and jurisdiction to remove him from office. He also insisted that
respondents[6] in that petition violated the laws on security of tenure and
that respondent Reynaldo V. Maulit, then the administrator of the LRA
committed a breach of Civil Service Rules when he abdicated his authority
to resolve the administrative complaint against him (herein respondent).
In a Resolution dated 15 September 1994, we dismissed the petition
for failure on the part of petitioner to sufficiently show that public
respondent committed grave abuse of discretion in issuing the questioned
order.[7] Respondent thereafter filed a motion for reconsideration which
was denied with finality in our Resolution of 15 November 1994.
On the basis of the outcome of the administrative case, complainant is
now before us, seeking the disbarment of respondent. Complainant claims
that it has become obvious that respondent had proven himself unfit to be
further entrusted with the duties of an attorney [8] and that he poses a
serious threat to the integrity of the legal profession.[9]
In his Comment, respondent maintains that there was nothing
irregular with his issuance of TCT No. T-2821 in the name of the Bauduli
Datus. According to him, both law[10] and jurisprudence support his stance
that it was his ministerial duty, as the Register of Deeds of Marawi City, to
act on applications for land registration on the basis only of the documents
presented by the applicants. In the case of the Bauduli Datus, nothing in the
documents they presented to his office warranted suspicion, hence, he was
duty-bound to issue TCT No. T-2821 in their favor.
Respondent also insists that he had nothing to do with the dismissal of
criminal complaint for violation of the Anti-Squatting Law allegedly
committed by Hadji Serad Abdullah and the latters co-defendants.
Respondent explains that his participation in said case was a result of the
two subpoenas duces tecum issued by the investigating prosecutor who
required him to produce the various land titles involved in said dispute. He
further claims that the dismissal of said criminal case by the Secretary of
Justice was based solely on the evidence presented by the parties.
Complainants allegation, therefore, that he influenced the outcome of the
case is totally unjustified.
Through a resolution dated 26 June 1995,[11] this Court referred this
matter to the Integrated Bar of the Philippines (IBP) for investigation, report,
and recommendation. Acting on this resolution, the IBP commenced the
investigation of this disbarment suit. On 23 February 1996, Commissioner
Victor C. Fernandez issued the following order relative to the transfer of
venue of this case. The pertinent portion of this order provides:
ORDER
When this case was called for hearing, both complainant and respondent
appeared.
The undersigned Commissioner asked them if they are willing to have the
reception of evidence vis--vis this case be done in Marawi City, Lanao del
Sur before the president of the local IBP Chapter. Both parties agreed.
Accordingly, transmit the records of this case to the Director for Bar
Discipline for appropriate action.[12]
On 30 March 1996, the IBP Board of Governors passed a resolution
approving Commissioner Fernandezs recommendation for the transfer of
venue of this administrative case and directed the Western Mindanao
Region governor to designate the local IBP chapter concerned to conduct
the investigation, report, and recommendation. [13] The IBP Resolution
states:
Resolution No. XII-96-153
Adm. Case No. 4018
Omar P. Ali vs. Atty. Mosib A. Bubong
RESOLVED TO APPROVE the recommendation of Commissioner Victor C.
Fernandez for the Transfer of Venue of the above-entitled case and direct
the Western Mindanao Region Governor George C. Jabido to designate the
local IBP Chapter concerned to conduct the investigation, report and
recommendation.
Pursuant to this resolution, Atty. Benjamin B. Bernardino, Director for
Bar Discipline, wrote a letter dated 23 October 1996 addressed to Governor
George C. Jabido, President of IBP Cotabato Chapter requesting the latter to
receive the evidence in this case and to submit his recommendation and
recommendation as directed by the IBP Board of Governors.[14]
In an undated Report and Recommendation, the IBP Cotabato
Chapter[15] informed the IBP Commission on Bar Discipline (CBD) that the
investigating panel[16] had sent notices to both complainant and respondent
for a series of hearings but respondent consistently ignored said notices. The
IBP Cotabato Chapter concluded its report by recommending that
respondent be suspended from the practice of law for five years.
On 01 July 1998, respondent filed a motion dated 30 June 1998 praying
for the transmittal of the records of this case to the Marawi City-Lanao del
Sur Chapter of the IBP pursuant to Resolution No. XII-96-153 as well as
Commissioner Fernandezs Order dated 23 February 1996.
Commissioner Fernandez thereafter ordered the investigating panel of
IBP Cotabato Chapter to comment on respondents motion. [17] Complying
with this directive, the panel expressed no opposition to respondents
motion for the transmittal of the records of this case to IBP Marawi
City.[18] On 25 September 1998, Commissioner Fernandez ordered the
referral of this case to IBP Marawi City for the reception of respondents
evidence.[19] This order of referral, however, was set aside by the IBP Board
of Governors in its Resolution No. XIII-98-268 issued on 4 December 1998.
Said resolution provides:
RESOLVED to DENY the ORDER of Commissioner Victor C. Fernandez for
the transmittal of the case records of the above-entitled case to Marawi
City, rather he is directed to re-evaluate the recommendation submitted
by Cotabato Chapter and report the same to the Board of Governors. [20]
Prior to the issuance of Resolution No. XIII-98-268, respondent filed on
08 October 1998 a motion praying that the recommendation of the IBP
Cotabato Chapter be stricken from the records.[21] Respondent insists that
the investigating panel constituted by said IBP chapter did not have the
authority to conduct the investigation of this case since IBP Resolution XII-
96-153 and Commissioner Fernandezs Order of 23 February 1996 clearly
vested IBP Marawi City with the power to investigate this case. Moreover,
he claims that he was never notified of any hearing by the investigating
panel of IBP Cotabato Chapter thereby depriving him of his right to due
process.
Complainant opposed[22] this motion arguing that respondent is guilty
of laches. According to complainant, the report and recommendation
submitted by IBP Cotabato Chapter expressly states that respondent was
duly notified of the hearings conducted by the investigating panel yet
despite these, respondent did nothing to defend himself. He also claims that
respondent did not even bother to submit his position paper when he was
directed to do so. Further, as respondent is a member of IBP Marawi City
Chapter, complainant maintains that the presence of bias in favor of
respondent is possible. Finally, complainant contends that to refer the
matter to IBP Marawi City would only entail a duplication of the process
which had already been completed by IBP Cotabato Chapter.
In an Order dated 15 October 1999,[23] Commissioner Fernandez
directed IBP Cotabato Chapter to submit proofs that notices for the hearings
conducted by the investigating panel as well as for the submission of the
position paper were duly received by respondent. On 21 February 2000,
Atty. Jabido, a member of the IBP Cotabato Chapter investigating panel,
furnished Commissioner Fernandez with a copy of the panels order dated 4
August 1997.[24] Attached to said order was Registry Receipt No. 3663 issued
by the local post office. On the lower portion of the registry receipt was a
handwritten notation reading Atty. Mosib A. Bubong.
On 20 April 2001, Commissioner Fernandez ordered Atty. Pedro S.
Castillo, Chairman of the Commission on Bar Discipline for Mindanao, to
reevaluate the report and recommendation submitted by IBP Cotabato
Chapter. This directive had the approval of the IBP Board of Governors
through its Resolution No. XIV-2001-271 issued on 30 June 2001, to wit:
RESOLVED to APPROVE the recommendation of Director Victor C.
Fernandez for the Transfer of Venue of the above-entitled case and direct
the CBD Mindanao to conduct an investigation, re-evaluation, report and
recommendation within sixty (60) days from receipt of notice.[25]
Meanwhile, Bainar A. Ali, informed the CBD Mindanao of the death of
her father, Omar P. Ali, complainant in this case. According to her, her father
passed away on 12 June 2002 and that in interest of peace and Islamic
brotherhood, she was requesting the withdrawal of this case. [26]
Subsequently, respondent filed another motion, this time, asking the
IBP CBD to direct the chairman of the Commission on Bar Discipline for
Mindanao to designate and authorize the IBP Marawi City-Lanao del Sur
Chapter to conduct an investigation of this case.[27] This motion was
effectively denied by Atty. Pedro S. Castillo in an Order dated 19 July
2002.[28] According to Atty. Castillo
After going over the voluminous records of the case, with special attention
made on the report of the IBP Cotabato City Chapter, the Complaint and
the Counter-Affidavit of respondent, the undersigned sees no need for any
further investigation, to be able to make a re-evaluation and
recommendation on the Report of the IBP Chapter of Cotabato City.
WHEREFORE, the Motion to authorize the IBP-Chpater of Marawi City,
Zamboanga del Norte is hereby denied. The undersigned will submit his
Report to the Commission on Bar Discipline, IBP National Office within ten
(10) days from date hereof.
In his Report and Recommendation, Atty. Castillo adopted in toto the
findings and conclusion of IBP Cotabato Chapter ratiocinating as follows:
The Complaint for Disbarment is primarily based on the Decision by the
Office of the President in Administrative Case No. 41 dated February 26,
1993, wherein herein respondent was found guilty of Grave Misconduct in:
a) The imprudent issuance of T.C.T. No. T-2821; and,
b) Manipulating the criminal complaint for violation of the
anti-squatting law.
And penalized with dismissal from the service, as Register of Deeds of
Marawi City. In the Comment filed by respondent in the instant
Adminsitrative Case, his defense is good faith in the issuance of T.C.T. No.
T-2821 and a denial of the charge of manipulating the criminal complaint
for violation of the anti-squatting law, which by the way, was filed against
respondents relatives. Going over the Decision of the Office of the
President in Administrative Case No. 41, the undersigned finds substantial
evidence were taken into account and fully explained, before the Decision
therein was rendered. In other words, the finding of Grave Misconduct on
the part of respondent by the Office of the President was fully supported
by evidence and as such carries a very strong weight in considering the
professional misconduct of respondent in the present case.
In the light of the foregoing, the undersigned sees no reason for amending
or disturbing the Report and Recommendation of the IBP Chapter of South
Cotabato.[29]
In a resolution passed on 19 October 2002, the IBP Board of Governors
adopted and approved, with modification, the afore-quoted Report and
Recommendation of Atty. Castillo. The modification pertained solely to the
period of suspension from the practice of law which should be imposed on
respondent whereas Atty. Castillo concurred in the earlier recommendation
of IBP Cotabato Chapter for a five-year suspension, the IBP Board of
Governors found a two-year suspension to be proper.
 On 17 January 2003, respondent filed a Motion for Reconsideration
with the IBP which the latter denied as by that time, the matter had already
been endorsed to this Court.[30]
The issue thus posed for this Courts resolution is whether respondent
may be disbarred for grave misconduct committed while he was in the
employ of the government. We resolve this question in the affirmative.
The Code of Professional Responsibility does not cease to apply to a
lawyer simply because he has joined the government service. In fact, by the
express provision of Canon 6 thereof, the rules governing the conduct of
lawyers shall apply to lawyers in government service in the discharge of their
official tasks. Thus, where a lawyers misconduct as a government official is
of such nature as to affect his qualification as a lawyer or to show moral
delinquency, then he may be disciplined as a member of the bar on such
grounds.[31] Although the general rule is that a lawyer who holds a
government office may not be disciplined as a member of the bar for
infractions he committed as a government official, he may, however, be
disciplined as a lawyer if his misconduct constitutes a violation of his oath a
member of the legal profession.[32]
Indeed, in the case of Collantes v. Atty. Vicente C. Renomeron,[33] we
ordered the disbarment of respondent on the ground of his dismissal from
government service because of grave misconduct. Quoting the late Chief
Justice Fred Ruiz Castro, we declared
[A] person takes an oath when he is admitted to the bar which is designed
to impress upon him his responsibilities. He thereby becomes an officer of
the court on whose shoulders rests the grave responsibility of assisting the
courts in the proper, fair, speedy and efficient administration of justice. As
an officer of the court he is subject to a rigid discipline that demands that
in his every exertion the only criterion be that truth and justice triumph.
This discipline is what has given the law profession its nobility, its prestige,
its exalted place. From a lawyer, to paraphrase Justice Felix Frankfurter,
are expected those qualities of truth-speaking, a high sense of honor, full
candor, intellectual honesty, and the strictest observance of fiduciary
responsibility all of which, throughout the centuries, have been
compendiously described as moral character.[34]
Similarly, in Atty. Julito D. Vitriolo, et al. v. Atty. Felina Dasig, [35] this
Court found sufficient basis to disbar respondent therein for gross
misconduct perpetrated while she was the Officer-in-Charge of Legal
Services of the Commission on Higher Education. As we had explained in
that case
[A] lawyer in public office is expected not only to refrain from any act or
omission which might tend to lessen the trust and confidence of the
citizenry in government, she must also uphold the dignity of the legal
profession at all times and observe a high standard of honesty and fair
dealing. Otherwise said, a lawyer in government service is a keeper of the
public faith and is burdened with high degree of social responsibility,
perhaps higher than her brethren in private practice.[36] (Emphasis
supplied)
In the case at bar, respondents grave misconduct, as established by the
Office of the President and subsequently affirmed by this Court, deals with
his qualification as a lawyer. By taking advantage of his office as the Register
of Deeds of Marawi City and employing his knowledge of the rules governing
land registration for the benefit of his relatives, respondent had clearly
demonstrated his unfitness not only to perform the functions of a civil
servant but also to retain his membership in the bar. Rule 6.02 of the Code
of Professional Responsibility is explicit on this matter. It reads:
Rule 6.02 A lawyer in the government service shall not use his public
position to promote or advance his private interests, nor allow the latter to
interfere with his public duties.
Respondents conduct manifestly undermined the peoples confidence in the
public office he used to occupy and cast doubt on the integrity of the legal
profession. The ill-conceived use of his knowledge of the intricacies of the
law calls for nothing less than the withdrawal of his privilege to practice law.
As for the letter sent by Bainar Ali, the deceased complainants
daughter, requesting for the withdrawal of this case, we cannot possibly
favorably act on the same as proceedings of this nature cannot be
interrupted or terminated by reason of desistance, settlement,
compromise, restitution, withdrawal of the charges or failure of the
complainant to prosecute the same.[37] As we have previously explained in
the case of Irene Rayos-Ombac v. Atty. Orlando A. Rayos:[38]
A case of suspension or disbarment may proceed regardless of interest or
lack of interest of the complainant. What matters is whether, on the basis
of the facts borne out by the record, the charge of deceit and grossly
immoral conduct has been duly proven. This rule is premised on the nature
of disciplinary proceedings. A proceeding for suspension or disbarment is
not in any sense a civil action where the complainant is a plaintiff and the
respondent lawyer is a defendant. Disciplinary proceedings involve no
private interest and afford no redress for private grievance. They are
undertaken and prosecuted solely for the public welfare. They are
undertaken for the purpose of preserving courts of justice from the official
ministration of persons unfit to practice in them. The attorney is called to
answer to the court for his conduct as an officer of the court. The
complainant or the person who called the attention of the court to the
attorneys 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
administrative of justice.[39]
WHEREFORE, respondent Atty. Mosib A. Bubong 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.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 10-5-7-SC December 7, 2010
JOVITO S. OLAZO, Complainant,
vs.
JUSTICE DANTE O. TINGA (Ret.), Respondent.
DECISION
BRION, J.:
Before us is the disbarment case against retired Supreme Court Associate
Justice Dante O. Tinga (respondent) filed by Mr. Jovito S. Olazo
(complainant). The respondent is charged of violating Rule 6.02,1 Rule
6.032 and Rule 1.013of the Code of Professional Responsibility for
representing conflicting interests.
Factual Background
In March 1990, the complainant filed a sales application covering a parcel
of land situated in Barangay Lower Bicutan in the Municipality of Taguig.
The land (subject land) was previously part of Fort Andres Bonifacio that
was segregated and declared open for disposition pursuant to
Proclamation No. 2476,4 issued on January 7, 1986, and Proclamation No.
172,5 issued on October 16, 1987.
To implement Proclamation No. 172, Memorandum No. 119 was issued by
then Executive Secretary Catalino Macaraig, creating a Committee on
Awards whose duty was to study, evaluate, and make a recommendation
on the applications to purchase the lands declared open for disposition.
The Committee on Awards was headed by the Director of Lands and the
respondent was one of the Committee members, in his official capacity as
the Congressman of Taguig and Pateros (from 1987 to 1998); the
respondent’s district includes the areas covered by the proclamations.
The First Charge: Violation of Rule 6.02
In the complaint,6 the complainant claimed that the respondent abused his
position as Congressman and as a member of the Committee on Awards
when he unduly interfered with the complainant’s sales application
because of his personal interest over the subject land. The complainant
alleged that the respondent exerted undue pressure and influence over
the complainant’s father, Miguel P. Olazo, for the latter to contest the
complainant’s sales application and claim the subject land for himself. The
complainant also alleged that the respondent prevailed upon Miguel Olazo
to accept, on various dates, sums of money as payment of the latter’s
alleged rights over the subject land. The complainant further claimed that
the respondent brokered the transfer of rights of the subject land between
Miguel Olazo and Joseph Jeffrey Rodriguez, who is the nephew of the
respondent’s deceased wife.
As a result of the respondent’s abuse of his official functions, the
complainant’s sales application was denied. The conveyance of rights to
Joseph Jeffrey Rodriguez and his sales application were subsequently given
due course by the Department of Environment and Natural Resources
(DENR).
The Second Charge: Violation of Rule 6.03
The second charge involves another parcel of land within the proclaimed
areas belonging to Manuel Olazo, the complainant’s brother. The
complainant alleged that the respondent persuaded Miguel Olazo to direct
Manuel to convey his rights over the land to Joseph Jeffrey Rodriguez. As a
result of the respondent’s promptings, the rights to the land were
transferred to Joseph Jeffrey Rodriguez.
In addition, the complainant alleged that in May 1999, the respondent met
with Manuel for the purpose of nullifying the conveyance of rights over the
land to Joseph Jeffrey Rodriguez. The complainant claimed that the
respondent wanted the rights over the land transferred to one Rolando
Olazo, the Barangay Chairman of Hagonoy, Taguig. The respondent in this
regard executed an "Assurance" where he stated that he was the lawyer of
Ramon Lee and Joseph Jeffrey Rodriguez.
The Third Charge: Violation of Rule 1.01
The complainant alleged that the respondent engaged in unlawful conduct
considering his knowledge that Joseph Jeffrey Rodriguez was not a
qualified beneficiary under Memorandum No. 119. The complainant
averred that Joseph Jeffrey Rodriguez is not a bona fide resident of the
proclaimed areas and does not qualify for an award. Thus, the approval of
his sales application by the Committee on Awards amounted to a violation
of the objectives of Proclamation No. 172 and Memorandum No. 119.
The complainant also alleged that the respondent violated Section 7(b)(2)
of the Code of Conduct and Ethical Standards for Public Officials and
Employees or Republic Act (R.A.) No. 6713 since he engaged in the practice
of law, within the one-year prohibition period, when he appeared as a
lawyer for Ramon Lee and Joseph Jeffrey Rodriguez before the Committee
on Awards.
In his Comment,7 the respondent claimed that the present complaint is the
third malicious charge filed against him by the complainant. The first one
was submitted before the Judicial and Bar Council when he was nominated
as an Associate Justice of the Supreme Court; the second complaint is now
pending with the Office of the Ombudsman, for alleged violation of Section
3(e) and (i) of R.A. No. 3019, as amended.
With his own supporting documents, the respondent presented a different
version of the antecedent events.
The respondent asserted that Miguel Olazo owned the rights over the
subject land and he later conveyed these rights to Joseph Jeffrey
Rodriguez. Miguel Olazo’s rights over the subject land and the transfer of
his rights to Joseph Jeffrey Rodriguez were duly recognized by the
Secretary of the DENR before whom the conflict of rights over the subject
land (between Miguel Olazo and Joseph Jeffrey Rodriguez, on one hand,
and the complainant on the other hand) was brought. In its decision, the
DENR found Joseph Jeffrey Rodriguez a qualified applicant, and his
application over the subject land was given due course. The respondent
emphasized that the DENR decision is now final and executory. It was
affirmed by the Office of the President, by the Court of Appeals and by the
Supreme Court.
The respondent also advanced the following defenses:
(1) He denied the complainant’s allegation that Miguel Olazo told
him (complainant) that the respondent had been orchestrating to
get the subject land. The respondent argued that this allegation
was without corroboration and was debunked by the affidavits of
Miguel Olazo and Francisca Olazo, the complainant’s sister.
(2) He denied the complainant’s allegation that he offered the
complainant ₱50,000.00 for the subject land and that he (the
respondent) had exerted undue pressure and influence on Miguel
Olazo to claim the rights over the subject land. The respondent
also denied that he had an inordinate interest in the subject land.
(3) He claimed that there was nothing wrong in signing as a
witness in Miguel Olazo’s affidavit where the latter asserted his
rights over the subject land. The affidavit merely attested to the
truth.
(4) He asserted that he and Miguel Olazo were cousins and that
the latter decided to sell his rights over the subject land for the
medical treatment of his heart condition and the illness of his
daughter, Francisca Olazo. The respondent insisted that the
money he extended to them was a form of loan.
(5) The respondent’s participation in the transaction between
Miguel Olazo and Joseph Jeffrey Rodriguez involved the payment
of the loan that the respondent extended to Miguel Olazo.
(6) Manuel’s belated and secondhand allegation in his
Sinumpaang Salaysay, dated January 20, 2000, regarding what his
father told him, cannot prevail over his earlier Sinumpaang
Salaysay with Francisca Olazo, dated August 2, 1997. In the said
Sinumpaang Salaysay, Manuel categorically asserted that his
father Miguel Olazo, not the complainant, was the farmer-
beneficiary. Manuel also expressed his agreement to the transfer
of rights (Pagpapatibay Sa Paglilipat Ng Karapatan) in favor of
Joseph Jeffrey Rodriguez, and the withdrawal of his father’s
application to give way to Joseph Jeffrey Rodriguez’s application.
(7) The complainant’s allegation that the respondent had
pressured and influenced Miguel Olazo to sell the subject land
was not sufficient as it was lacking in specificity and
corroboration. The DENR decision was clear that the complainant
had no rights over the subject land.
The respondent additionally denied violating Rule 1.01 of the Code of
Professional Responsibility. He alleged that during his third term as
Congressman from 1995 to 1997, the conflicting applications of the
complainant, Miguel Olazo and Joseph Jeffrey Rodriguez were not included
in the agenda for deliberation of the Committee on Awards. Rather, their
conflicting claims and their respective supporting documents were before
the Office of the Regional Director, NCR of the DENR. This office ruled over
the conflicting claims only on August 2, 2000. This ruling became the basis
of the decision of the Secretary of the DENR.
Similarly, the respondent cannot be held liable under Rule 6.02 of the Code
of Professional Responsibility since the provision applies to lawyers in the
government service who are allowed by law to engage in private law
practice and to those who, though prohibited from engaging in the
practice of law, have friends, former associates and relatives who are in
the active practice of law.8 In this regard, the respondent had already
completed his third term in Congress and his stint in the Committee on
Awards when he represented Joseph Jeffrey Rodriguez on May 24, 1999.
Lastly, the respondent claimed that he cannot be held liable under Rule
6.03 of the Code of Professional Responsibility since he did not intervene
in the disposition of the conflicting applications of the complainant and
Joseph Jeffrey Rodriguez because the applications were not submitted to
the Committee on Awards when he was still a member.
The Court’s Ruling
Generally, a lawyer who holds a government office may not be disciplined
as a member of the Bar for misconduct in the discharge of his duties as a
government official.9 He may be disciplined by this Court as a member of
the Bar only when his misconduct also constitutes a violation of his oath as
a lawyer.10
The issue in this case calls for a determination of whether the respondent’s
actions constitute a breach of the standard ethical conduct – first, while
the respondent was still an elective public official and a member of the
Committee on Awards; and second, when he was no longer a public
official, but a private lawyer who represented a client before the office he
was previously connected with.
After a careful evaluation of the pleadings filed by both parties and their
respective pieces of evidence, we resolve to dismiss the administrative
complaint.
Accountability of a government lawyer in public office
Canon 6 of the Code of Professional Responsibility highlights the
continuing standard of ethical conduct to be observed by government
lawyers in the discharge of their official tasks. In addition to the standard
of conduct laid down under R.A. No. 6713 for government employees, a
lawyer in the government service is obliged to observe the standard of
conduct under the Code of Professional Responsibility.
Since public office is a public trust, the ethical conduct demanded upon
lawyers in the government service is more exacting than the standards for
those in private practice. Lawyers in the government service are subject to
constant public scrutiny under norms of public accountability. They also
bear the heavy burden of having to put aside their private interest in favor
of the interest of the public; their private activities should not interfere
with the discharge of their official functions.11
The first charge involves a violation of Rule 6.02 of the Code of Professional
Responsibility. It imposes the following restrictions in the conduct of a
government lawyer:
A lawyer in the government service shall not use his public position to
promote or advance his private interests, nor allow the latter to interfere
with his public duties.
The above provision prohibits a lawyer from using his or her public position
to: (1) promote private interests; (2) advance private interests; or (3) allow
private interest to interfere with his or her public duties. We previously
held that the restriction extends to all government lawyers who use their
public offices to promote their private interests.12
In Huyssen v. Gutierrez,13 we defined promotion of private interest to
include soliciting gifts or anything of monetary value in any transaction
requiring the approval of his or her office, or may be affected by the
functions of his or her office. In Ali v. Bubong,14 we recognized that private
interest is not limited to direct interest, but extends to advancing the
interest of relatives. We also ruled that private interest interferes with
public duty when the respondent uses the office and his or her knowledge
of the intricacies of the law to benefit relatives.15
In Vitriolo v. Dasig,16 we found the act of the respondent (an official of the
Commission on Higher Education) of extorting money from persons with
applications or requests pending before her office to be a serious breach of
Rule 6.02 of the Code of Professional Responsibility.17 We reached the
same conclusion in Huyssen, where we found the respondent (an
employee of the Bureau of Immigration and Deportation) liable under Rule
6.02 of the Code of Professional Responsibility, based on the evidence
showing that he demanded money from the complainant who had a
pending application for visas before his office.18
Similarly, in Igoy v. Soriano19 we found the respondent (a Court Attorney of
this Court) liable for violating Rule 6.02 of the Code of Professional
Responsibility, after considering the evidence showing that he demanded
and received money from the complainant who had a pending case before
this Court.
Applying these legal precepts to the facts of the case, we find the absence
of any concrete proof that the respondent abused his position as a
Congressman and as a member of the Committee on Awards in the
manner defined under Rule 6.02 of the Code of Professional Responsibility.
First, the records do not clearly show if the complainant’s sales application
was ever brought before the Committee on Awards. By the complaint’s
own account, the complainant filed a sales application in March 1990
before the Land Management Bureau. By 1996, the complainant’s sales
application was pending before the Office of the Regional Director, NCR of
the DENR due to the conflicting claims of Miguel Olazo, and, subsequently,
of Joseph Jeffrey Rodriguez. The records show that it was only on August 2,
2000 that the Office of the Regional Director, NCR of the DENR rendered
its decision, or after the term of the respondent’s elective public office and
membership to the Committee on Awards, which expired in 1997.
These circumstances do not show that the respondent did in any way
promote, advance or use his private interests in the discharge of his official
duties. To repeat, since the sales application was not brought before the
Committee on Awards when the respondent was still a member, no
sufficient basis exists to conclude that he used his position to obtain
personal benefits. We note in this regard that the denial of the
complainant’s sales application over the subject land was made by the
DENR, not by the Committee on Awards.
Second, the complainant’s allegation that the respondent "orchestrated"
the efforts to get the subject land does not specify how the orchestration
was undertaken. What appears clear in the records is the uncorroborated
Sinumpaang Salaysay of Miguel Olazo, dated May 25, 2003,20 categorically
stating that the respondent had no interest in the subject land, and neither
was he a contracting party in the transfer of his rights over the subject
land. In the absence of any specific charge, Olazo’s disclaimer is the
nearest relevant statement on the respondent’s alleged participation, and
we find it to be in the respondent’s favor.
Third, the other documents executed by Miguel Olazo, that the
complainant presented to support his claim that the respondent exerted
undue pressure and influence over his father (namely: the letter, dated
June 22, 1996, to the DENR Regional Director-NCR;21 the Sinumpaang
Salaysay dated July 12, 1996;22 and the Sinumpaang Salaysay dated July 17,
199623), do not contain any reference to the alleged pressure or force
exerted by the respondent over Miguel Olazo. The documents merely
showed that the respondent helped Miguel Olazo in having his farm lots
(covered by the proclaimed areas) surveyed. They also showed that the
respondent merely acted as a witness in the Sinumpaang Salaysay dated
July 17, 1996. To our mind, there are neutral acts that may be rendered by
one relative to another, and do not show how the respondent could have
influenced the decision of Miguel Olazo to contest the complainant’s sales
application. At the same time, we cannot give any credit to the
Sinumpaang Salaysay, dated January 20, 2000, of Manuel. They are not
only hearsay but are contrary to what Miguel Olazo states on the record.
We note that Manuel had no personal knowledge, other than what Miguel
Olazo told him, of the force allegedly exerted by the respondent against
Miguel Olazo.
In turn, the respondent was able to provide a satisfactory explanation -
backed by corroborating evidence - of the nature of the transaction in
which he gave the various sums of money to Miguel Olazo and Francisca
Olazo in the year 1995. In her affidavits dated May 25, 2003 24 and July 21,
2010,25 Francisca Olazo corroborated the respondent’s claim that the sums
of money he extended to her and Miguel Olazo were loans used for their
medical treatment. Miguel Olazo, in his Sinumpaang Salaysay dated May
25, 2003, asserted that some of the money borrowed from the respondent
was used for his medical treatment and hospitalization expenses.
The affidavit of Joseph Jeffrey Rodriguez further corroborated the
respondent’s claim that the latter’s involvement was limited to being paid
the loans he gave to Miguel Olazo and Francisca Olazo. According to
Joseph Jeffrey Rodriguez, he and Miguel Olazo agreed that a portion of the
loan would be directly paid by Joseph Jeffrey Rodriguez to the respondent
and the amount paid would be considered as part of the purchase price of
the subject land.26
It also bears stressing that a facial comparison of the documentary
evidence, specifically the dates when the sums of money were extended
by the respondent – on February 21, 1995, September 2, 1995 and October
17, 1995, and the date when the Deed of Conveyance27 over the subject
land was executed or on October 25, 1995, showed that the sums of
money were extended prior to the transfer of rights over the subject land.
These pieces of evidence are consistent with the respondent’s allegation
that Miguel Olazo decided to sell his rights over the subject land to pay the
loans he obtained from the respondent and, also, to finance his continuing
medical treatment.
Private practice of law after separation from public office
As proof that the respondent was engaged in an unauthorized practice of
law after his separation from the government service, the complainant
presented the Sinumpaang Salaysay, dated January 20, 2000, of Manuel
and the document entitled "Assurance" where the respondent legally
represented Ramon Lee and Joseph Jeffrey Rodriguez. Nevertheless, the
foregoing pieces of evidence fail to persuade us to conclude that there was
a violation of Rule 6.03 of the Code of Professional Responsibility.
In Cayetano v. Monsod,28 we defined the practice of law as any activity, in
and out of court, that requires the application of law, legal procedure,
knowledge, training and experience. Moreover, we ruled that to engage in
the practice of law is to perform those acts which are characteristics of the
profession; to practice law is to give notice or render any kind of service,
which device or service requires the use in any degree of legal knowledge
or skill.
Under the circumstances, the foregoing definition should be correlated
with R.A. No. 6713 and Rule 6.03 of the Code of Professional Responsibility
which impose certain restrictions on government lawyers to engage in
private practice after their separation from the service.
Section 7(b)(2) of R.A. No. 6713 reads:
Section 7. Prohibited Acts and Transactions. — In addition to acts and
omissions of public officials and employees now prescribed in the
Constitution and existing laws, the following shall constitute prohibited
acts and transactions of any public official and employee and are hereby
declared to be unlawful:
xxxx
(b) Outside employment and other activities related thereto. – Public
officials and employees during their incumbency shall not:
xxxx
(2) Engage in the private practice of their profession unless authorized by
the Constitution or law, provided, that such practice will not conflict or
tend to conflict with their official functions; x x x
These prohibitions shall continue to apply for a period of one (1) year after
resignation, retirement, or separation from public office, except in the case
of subparagraph (b) (2) above, but the professional concerned cannot
practice his profession in connection with any matter before the office he
used to be with, in which case the one-year prohibition shall likewise
apply.
As a rule, government lawyers are not allowed to engage in the private
practice of their profession during their incumbency.29 By way of
exception, a government lawyer can engage in the practice of his or her
profession under the following conditions: first, the private practice is
authorized by the Constitution or by the law; and second, the practice will
not conflict or tend to conflict with his or her official functions. 30 The last
paragraph of Section 7 provides an exception to the exception. In case of
lawyers separated from the government service who are covered under
subparagraph (b) (2) of Section 7 of R.A. No. 6713, a one-year prohibition is
imposed to practice law in connection with any matter before the office he
used to be with.
Rule 6.03 of the Code of Professional Responsibility echoes this restriction
and prohibits lawyers, after leaving the government service, to accept
engagement or employment in connection with any matter in which he
had intervened while in the said service. The keyword in Rule 6.03 of the
Code of Professional Responsibility is the term "intervene" which we
previously interpreted to include an act of a person who has the power to
influence the proceedings.31 Otherwise stated, to fall within the ambit of
Rule 6.03 of the Code of Professional Responsibility, the respondent must
have accepted engagement or employment in a matter which, by virtue of
his public office, he had previously exercised power to influence the
outcome of the proceedings.1avvphi1
As the records show, no evidence exists showing that the respondent
previously interfered with the sales application covering Manuel’s land
when the former was still a member of the Committee on Awards. The
complainant, too, failed to sufficiently establish that the respondent was
engaged in the practice of law. At face value, the legal service rendered by
the respondent was limited only in the preparation of a single document.
In Borja, Sr. v. Sulyap, Inc.,32we specifically described private practice of
law as one that contemplates a succession of acts of the same nature
habitually or customarily holding one’s self to the public as a lawyer.
In any event, even granting that respondent’s act fell within the definition
of practice of law, the available pieces of evidence are insufficient to show
that the legal representation was made before the Committee on Awards,
or that the Assurance was intended to be presented before it. These are
matters for the complainant to prove and we cannot consider any
uncertainty in this regard against the respondent’s favor.
Violation of Rule 1.01
Rule 1.01 prohibits a lawyer from engaging in unlawful, immoral or
deceitful conduct. From the above discussion, we already struck down the
complainant’s allegation that respondent engaged in an unauthorized
practice of law when he appeared as a lawyer for Ramon Lee and Joseph
Jeffrey Rodriguez before the Committee on Awards.
We find that a similar treatment should be given to the complainant’s
claim that the respondent violated paragraph 4(1)33 of Memorandum No.
119 when he encouraged the sales application of Joseph Jeffrey Rodriguez
despite his knowledge that his nephew was not a qualified applicant. The
matter of Joseph Jeffrey Rodriguez’s qualifications to apply for a sales
application over lots covered by the proclaimed areas has been resolved in
the affirmative by the Secretary of the DENR in the decision dated April 3,
2004,34 when the DENR gave due course to his sales application over the
subject land. We are, at this point, bound by this finding.
As pointed out by the respondent, the DENR decision was affirmed by the
Office of the President, the Court of Appeals35 and, finally, the Court, per
our Minute Resolution, dated October 11, 2006, in G.R. No. 173453. In our
Resolution, we dismissed the petition for review on certiorari filed by the
complainant after finding, among others, that no reversible error was
committed by the Court of Appeals in its decision. 36
All told, considering the serious consequences of the penalty of disbarment
or suspension of a member of the Bar, the burden rests on the
complainant to present clear, convincing and satisfactory proof for the
Court to exercise its disciplinary powers.37 The respondent generally is
under no obligation to prove his/her defense,38 until the burden shifts to
him/her because of what the complainant has proven. Where no case has
in the first place been proven, nothing has to be rebutted in defense. 39
With this in mind, we resolve to dismiss the administrative case against the
respondent for the complainant’s failure to prove by clear and convincing
evidence that the former committed unethical infractions warranting the
exercise of the Court’s disciplinary power.
WHEREFORE, premises considered, we DISMISS the administrative case for
violation of Rule 6.02, Rule 6.03 and Rule 1.01 of the Code of Professional
Responsibility, filed against retired Supreme Court Associate Justice Dante
O. Tinga, for lack of merit.
SO ORDERED.
ARTURO D. BRION
Associate Justice
 SECOND DIVISION
[A.C. No. 2984. July 29, 1992.]
RODOLFO M. BERNARDO, JR., Complainant, v. ATTY. ISMAEL F.
MEJIA, Respondent.
Pedro S. Castillo for complainant.
Ismael F . Mejia for and in his own behalf.
SYLLABUS
1. LEGAL ETHICS; ADMINISTRATIVE COMPLAINT; PENALTY OF DISBARMENT
IMPOSED UPON LAWYER GUILTY OF MISAPPROPRIATION AND
FALSIFICATION. — The Court is convinced of the correctness of the
conclusions of the IBP Board of Governors finding respondent guilty of
misappropriation and conversion of sum of money entrusted to him to his
personal use and falsification of certain documents and thus imposes upon
him the penalty of disbarment. Pending finality of judgment, respondent is
suspended from the practice of law.
DECISION
PER CURIAM:
By complaint filed with this Court on January 23, 1987, Rodolfo M.
Bernardo, Jr. accused his retained attorney, Ismael F. Mejia, of the
following administrative offenses:chanrob1es virtual 1aw library
1) misappropriating and converting to his personal use:chanrob1es virtual
1aw library
a) a part of the sum of P27,710.00 entrusted to him for payment of real
estate taxes on property belonging to Bernardo, situated in a subdivision
known as Valle Verde I; and
b) part of another sum of P40,000.00 entrusted to him for payment of
taxes and expenses in connection with the registration of the title of
Bernardo to another property in a subdivision known as Valle Verde V;
2) falsification of certain documents, to wit:chanrob1es virtual 1aw library
a) a special power of attorney dated March 16, 1985 purportedly executed
in his favor of Bernardo (Annex P, par. 51, complainant’s affidavit dated
October 4, 1989);
b) a deed of sale dated October 22, 1982 (Annex O, par. 48, id.); and
c) a deed of assignment purportedly executed by the spouses, Tomas and
Remedios Pastor, in Bernardo’s favor (Annex Q, par. 52, id.);
3) issuing a check, knowing that he was without funds in the bank, in
payment of a loan obtained from Bernardo in the amount of P50,000.00,
and thereafter replacing said check with others known also to be
insufficiently funded.
In his defense and in attempted refutation of Bernardo’s averments,
respondent Mejia filed an answer. He subsequently filed no less than
thirty-two (32) other pleadings, affidavits and papers many bearing such
quaint titles as "A Blinding Reptilia;" "Fish Caught in the Mouth;" "Society:
Need for Lawyers; "Pains of Wounds;" "House of Law;" "Equal
Submission;" "Christmas Star;" "The Advent: A New Beginning." Withal, he
made no clear and categorical denials of the accusations against him.
Bernardo himself filed no small number of pleadings, affidavits and other
papers, numbering sixteen (16) in all.
The matter was in due course referred to the Integrated Bar of the
Philippines for investigation, report and recommendation. There the
parties submitted the case for resolution on the basis of their respective
affidavits, amplified by their respective memoranda.
On October 8, 1991 a majority of the IBP Board of Governors rendered a
Resolution which was submitted to this Court on April 6, 1992. In that
Resolution the Board found all the accusations against respondent Mejia to
have been fully substantiated by the evidence on record and
recommended respondent’s disbarment. The Governors’ reasoned
conclusions are as follows:jgc:chanrobles.com.ph
"Anent the First Issue: After considering the various affidavits and
pleadings of the parties, it clearly appears that complainant signed two (2)
blank checks; delivered them to respondent and had authorized him to fill
them up in the amounts sufficient to cover the amounts of the real estate
taxes due on the complainant’s property located at 8 Macapuno, Valle
Verde I, Pasig, Metro Manila; that respondent filled up those blank checks
as follows: P13,450.00 for TBMC Check No. 24223700 dated February 1985
and P14,260.00 for TBMC Check No. 24223701 of even date (Exhibits "A"
and "B", Complainant’s Affidavit, Oct. 4, 1989); the respondent encashed
these checks and received the proceeds therefor (P27,710.00) intended to
pay the real estate taxes of complainant’s property.
When asked to make an accounting of the P27,710.00 the respondent
informed the complainant that he had paid all the real estate taxes due on
the land and on the improvements. Respondent admitted in his written
Computation (Annex "C", Complainant’s Affidavit, Oct. 4, 1989) given to
complainant that he spent P10,010.00 of the amount for his personal use
which he expressly acknowledged and committed to return to the
complainant. (Annex "C").
The complainant was however shocked to learn that the real estate taxes
were not actually paid as represented in the written Computation
submitted by the Respondent. The non-payment is established by the
Statement of Account on Real Property Tax dated December 27, 1985
obtained from the proper government authority (Exhibit "S",
Complainant’s Affidavit, Oct. 4, 1985). At this juncture, it must be noted
that the Statement was addressed to Adonis Tupaz, the previous owner
from which the property was purchased (See par. I, Affidavit of
complainant attached to Exhibit "U").
There being no payments made, the respondent is presumed to have
misappropriated the sum of P17,710.00 which he did not use for the
payment of the taxes he was commissioned to pay by his client, the
complainant. The respondent failed to explain satisfactorily the
disappearance of the money. The presumption that he misappropriated
the money stands. (See: In re Bamberger, 49 Phil. 962; Mococo v. Diaz, 70
Phil. 97).
For this act of misappropriation he deserves severe punishment (Daroy v.
Legaspi, 65 SCRA 304; Capulong v. Alino, Administrative Case No. 381,
February 10, 1968).
However, the amount of P10,000.00 which he acknowledged as returnable
to the complainant, will not be considered as having been
misappropriated, although, in having used the money without prior
consent of the complainant, he is guilty of misconduct, though not as grave
as the act of misappropriation.
Anent the second and third issues: It appears that in July 1985, the
complainant (before the discovery of the anomaly concerning the first
property) also gave the respondent P40,000.00 in four (4) checks of
P10,000.00 each for the purpose of paying the taxes due and to secure the
title of the property which complainant bought from Mr. and Mrs. Tomas
Pastor. These checks were all encashed by Respondent. (Exhibits "E", "F",
"G" and "H", Complainant’s Affidavit, Oct. 4, 1989).
Respondent was supposed to register the Deed of Sale executed by and
between the complainant and Mr. and Mrs. Tomas Pastor. The deed was
prepared and notarized by the Respondent. The consideration for the sale
was P570,000.00 (Exhibit "D", Complainant’s Affidavit, Oct. 4, 1989). The
respondent kept the original copy of the deed and gave a duplicate copy
thereof to each of the parties.
For the services rendered and to be rendered by the respondent which
includes the transfer of the title of the property to the complainant, he was
paid P10,000.00 in check by the complainant.
After the lapse of some weeks, complainant tried to communicate with the
respondent in order to find out the status of the property. Complainant
meantime negotiated the property and was being rushed by his buyer, a
certain Menandro Cancio, who was allegedly becoming impatient over the
delay in the transfer of the property in his name and which could only be
effected after the Deed of Sale in favor of complainant by the previous
owner (Tomas Pastor) shall have been first registered.
Sensing that respondent was deliberately evading him, the complainant
made a personal follow-up at the BIR office and the Registry of Deeds of
Pasig. Thereat, he discovered that respondent had not paid the taxes he
was supposed to pay out of the 40,000.00 he received from the
complainant.
As Menandro Cancio was already threatening the complainant, the latter
was constrained to pay as he did pay the sums of P22,204.00 to cover up
registration fee, transfer fee, capital gains tax and other requirements.
Official receipts were duly issued for the payments made by the
complainant. (Exhibits "J", "K", "L", "M" and "N", Complainant’s Affidavit,
Oct. 4, 1989).
After paying the above taxes, complainant was given the various
documents which respondent submitted to the BIR and the Registry of
Deeds. It was thus discovered that respondent instead of submitting the
original and genuine Deed of Sale with a consideration of P570,000.00 had
instead submitted a different Deed of Sale with a reduced consideration of
P35,000.00 only.
From the evidence on record, including the NBI Report, it appears that
complainant and Tomas Pastor did not sign this Deed of Sale submitted by
the Respondent. (Exhibit "O", Complainant’s Affidavit dated Oct. 4, 1989).
This fake deed was notarized by Atty. Apolinar Mangahas, who however,
claimed that the document was brought to him by respondent for
notarization with a person whom he introduced as Rodolfo Bernardo, Jr.
However, during the NBI investigation, when Atty. Mangahas saw the
complainant, he admitted that he had not seen him yet before.
It also appears that respondent submitted a falsified Special Power of
Attorney purportedly signed by the complainant. (Exhibit "P",
Complainant’s Affidavit, Oct. 4, 1989). To this, respondent counters that
complainant himself authorized a woman to sign his name to avoid delay
in the registration and so that the respondent as attorney-in-fact for the
complainant might be able to register then an adverse claim on the title of
the property in question. Even assuming this claim to be true, respondent
who is a lawyer, sworn to do no falsehood, must not have agreed to take
any part in such acts of falsification.
It further appears that respondent submitted to the BIR spurious Deed of
Assignment purportedly executed by the Spouses Tomas Pastor and
Remedios Pastor in favor of complainant. Again the parties did not sign this
deed.
As a result of the faking of the aforecited documents, the respondent
succeeded in reducing the taxes and fees to be paid. He paid only the sum
of P6,885.96 to the BIR and the Registry of Deed.
Consequently, he gained P33,114.04 out of the P40,000.00 entrusted to
him intended for the payment of taxes due and the expenses for securing
the title of the property in the name of the complainant. Respondent had
thus cheated the Government and his client.
In devising schemes through the preparation and submission of spurious
deeds to defraud the Government and his client, respondent is guilty of
deceit. (In re Avanceña, 20 SCRA 1012).
Moreover, in receiving the money and pocketing it for his own personal
use, respondent has betrayed his client’s trust and these acts justify the
imposition of disciplinary sanctions upon him. (Daroy v. Legaspi, 65 SCRA
304; Melegrito v. Barba, 58 Phil. 513).
Anent the fourth issue: There is no question that the postdated check in
the amount of P50,000.00 which the respondent issued to complainant
had bounced. (Exhibit "P", Complainant’s Affidavit, Oct. 4, 1989). Upon his
supplication, this was later substituted by him with new checks which
however also bounced due to insufficiency of funds. This constitutes also
grave misconduct.

A lawyer must always observe good faith and justice in his dealings
whether in the pursuit of his profession or in his private affairs. (See: In re
Pelaez, 44 Phil. 569; Piatt v. Abordo, 58 Phil. 530). And as recently decided
by the Supreme Court, violation of B.P. BLG. 22 is considered a crime
involving moral turpitude.
For all the foregoing, the Board of Governors most respectfully
recommends that respondent Atty. Ismael F. Mejia be disbarred."cralaw
virtua1aw library
A thoroughgoing review of the affidavits, pleadings and other papers filed
by the parties convinces this Court of the correctness of the foregoing
conclusions of the IBP Board of Governors. They are consequently hereby
adopted and approved.
WHEREFORE, the Court DECLARES the respondent, Atty. Ismael F. Mejia,
guilty of all the charges against him and hereby imposes on him the
penalty of DISBARMENT. Pending finality of this judgment, and effective
immediately, Atty. Ismael F. Mejia is hereby SUSPENDED from the practice
of law. Let a copy of this Decision be spread in his record in the Bar
Confidant’s Office, and notice thereof furnished the Integrated Bar of the
Philippines, as well as the Court Administrator who is DIRECTED to inform
all the Courts concerned of this Decision.
[G.R. Nos. 89591-96. January 24, 2000]
PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. BONIFACIO SANZ
MACEDA, Presiding Judge of Branch 12, Regional Trial Court of Antique,
and AVELINO T. JAVELLANA, respondents.
RESOLUTION
PARDO, J.:
On September 8, 1999, we denied the Peoples motion seeking
reconsideration of our August 13, 1990 decision in these cases. In said
resolution, we held that respondent Judge Bonifacio Sanz Maceda
committed no grave abuse of discretion in issuing the order of August 8,
1989 giving custody over private respondent Avelino T. Javellana to the
Clerk of Court of the Regional Trial Court, Branch 12, San Jose, Antique,
Atty. Deogracias del Rosario, during the pendency of Criminal Cases Nos.
3350-3355. At that time, sufficient reason was shown why private
respondent Javellana should not be detained at the Antique Provincial Jail.
The trial courts order specifically provided for private respondents
detention at the residence of Atty. del Rosario. However, private
respondent was not to be allowed liberty to roam around but was to be
held as detention prisoner in said residence.
This order of the trial court was not strictly complied with because private
respondent was not detained in the residence of Atty. Del Rosario. He
went about his normal activities as if he were a free man, including
engaging in the practice of law. Despite our resolution of July 30, 1990
prohibiting private respondent to appear as counsel in Criminal Case No.
4262,[1] the latter accepted cases and continued practicing law.
On April 7, 1997, Senior State Prosecutor Henrick F. Guingoyon filed with
the Supreme Court a motion seeking clarification on the following
questions: "(1) Does the resolution of this Honorable Court dated July 30,
1990, prohibiting Atty. Javellana from appearing as counsel refer only to
Criminal Case No. 4262? (2) Is Atty. now (Judge) Deogracias del Rosario still
the custodian of Atty. Javellana? and (3) Since it appears that Atty. (now
Judge) del Rosario never really held and detained Atty. Javellana as
prisoner in his residence, is not Atty. Javellana considered an escapee or a
fugitive of justice for which warrant for his arrest should forthwith be
issued?"[2]
In a resolution dated June 18, 1997, we "noted" the above motion.
After we denied the motion for reconsideration on September 8, 1999, the
trial court resumed hearing Criminal Cases Nos. 3350-3355. Earlier, on
August 2, 1999, Rolando Mijares filed with the Regional Trial Court, Branch
12, San Jose, Antique, a motion seeking the revocation of the trial courts
custody order and the imprisonment of private respondent Javellana in the
provincial jail.
On November 15, 1999, private respondent Javellana filed with the
Supreme Court an urgent motion seeking to clarify whether the June 18,
1997 resolution finally terminated or resolved the motion for clarification
filed by the State Prosecutor on April 7, 1997.
Private respondent Javellana has been arrested based on the filing of
criminal cases against him. By such arrest, he is deemed to be under the
custody of the law. The trial court gave Atty. Deogracias del Rosario the
custody of private respondent Javellana with the obligation "to hold and
detain" him in Atty. del Rosarios residence in his official capacity as the
clerk of court of the regional trial court. Hence, when Atty. del Rosario was
appointed judge, he ceased to be the personal custodian of accused
Javellana and the succeeding clerk of court must be deemed the custodian
under the same undertaking.
In our mind, the perceived threats to private respondent Javelanas life no
longer exist. Thus, the trial courts order dated August 8, 1989 giving
custody over him to the clerk of court must be recalled, and he shall be
detained at the Provincial Jail of Antique at San Jose, Antique.
Regarding his continued practice of law, as a detention prisoner private
respondent Javellana is not allowed to practice his profession as a
necessary consequence of his status as a detention prisoner. The trial
courts order was clear that private respondent "is not to be allowed liberty
to roam around but is to be held as a detention prisoner." The prohibition
to practice law referred not only to Criminal Case No. 4262, but to all other
cases as well, except in cases where private respondent would appear in
court to defend himself.
As a matter of law, when a person indicted for an offense is arrested, he is
deemed placed under the custody of the law. He is placed in actual
restraint of liberty in jail so that he may be bound to answer for the
commission of the offense.[3] He must be detained in jail during the
pendency of the case against him, unless he is authorized by the court to
be released on bail or on recognizance.[4] Let it be stressed that all
prisoners whether under preventive detention or serving final sentence
can not practice their profession nor engage in any business or occupation,
or hold office, elective or appointive, while in detention. This is a necessary
consequence of arrest and detention. Consequently, all the accused in
Criminal Cases Nos. 3350-3355 must be confined in the Provincial Jail of
Antique.
Considering that the pendency of Criminal Cases Nos. 3350-3355 has
dragged on for more than ten (10) years, the presiding judge of the
Regional Trial Court, Branch 12, San Jose, Antique, is ordered to continue
with the trial of said criminal cases with all deliberate dispatch and to avoid
further delay.
WHEREFORE, the August 8, 1989 order of the trial court is hereby
SET ASIDE. All accused in Criminal Cases Nos. 3350-3355, including Avelino
T. Javellana and Arturo F. Pacificador are ordered detained at the
Provincial Jail of Antique, San Jose, Antique, effective immediately, and
shall not be allowed to go out of the jail for any reason or guise, except
upon prior written permission of the trial court for a lawful purpose.
Let copies of this resolution be given to the Provincial Director, PNP
Antique Provincial Police Office, San Jose, Antique and to the Provincial Jail
Warden, Provincial Jail of Antique, San Jose, Antique.
SO ORDERED.
EN BANC
A.C. No.7054 November 11, 2014
CONRADO N. QUE, Complainant,
vs.
ATTY. ANASTACIO E. REVILLA, JR., Respondent.
 RESOLUTION
PER CURIAM:
For the Court's consideration is the Profound Appeal for Judicial
Clemency1 filed by Atty. Anastacio E. Revilla, Jr. (respondent), who seeks to
be reinstated as a member of the Philippine Bar.
Factual Background
In a Decision2 dated December 4, 2009, this Court disbarred the
respondent from the practice of law on the following grounds: abuse of
court procedures and processes; filing of multiple actions and forum-
shopping; willful, intentional and deliberate resort to falsehood and
deception before the courts; maligning the name of his fellow lawyer; and
fraudulent and unauthorized appearances in court.
The material portions of the subject Decision provide:
Based on the foregoing, we conclude that the respondent committed
various acts of professional misconduct and thereby failed to live up to the
exacting ethical standards imposed on members of the Bar. We cannot,
agree, however, that only a penalty of one-year suspension from the
practice of law should be imposed. Neither should we limit ourselves to
the originally recommendedpenalty of suspension for two (2) years.
Given the respondent’s multiple violations, his past record as previously
discussed, and the nature of these violations which shows the readiness to
disregard court rules and to gloss over concerns for the orderly
administration of justice,we believe and so hold that the appropriate
action of this Court is to disbar the respondent to keep him away from the
law profession and from any significant role in the administration of justice
which he has disgraced. He is a continuing risk, too, to the public that the
legal profession serves. Not even his ardor and overzealousness in
defending the interests of his client can save him. Such traits at the
expense of everything else, particularly the integrity of the profession and
the orderly administration of justice, this Court cannot accept nor tolerate.
Additionally, disbarment is merited because this is not the respondent’s
first ethical infraction of the same nature. We penalized him in Plus
Builders, Inc. and Edgardo Garcia versus Atty. Anastacio E. Revilla for his
willful and intentional falsehood before the court; for misuse of court
procedures and processes to delay the execution of a judgment; and for
collaborating with non-lawyers in the illegal practice of law. We showed
leniency then by reducing his penalty to suspension for six (6) months. We
cannot similarly treat the respondent this time; it is clear that he did not
learn any lesson from his past experience and since then has exhibited
traits of incorrigibility. It is time to put a finis to the respondent’s
professional legal career for the sake of the public, the profession and the
interest of justice.
WHEREFORE, premises considered, we hereby AFFIRM Resolution No. XVII-
2005-164 dated December 17, 2005 and Resolution No. XVII-2008-657
dated December 11, 2008 of the Board of Governors of the IBP Committee
on Bar Discipline insofar as respondent Atty. Anastacio Revilla, Jr. is found
liable for professional misconduct for violations of the Lawyer’s Oath;
Canon 8; Rules 10.01 and 10.03, Canon 10; Rules 12.02 and 12.04, Canon
12; and Rule 19.01, Canon 19 of the Code of Professional
Responsibility;and Sections 20(d), 21 and 27 of Rule 138 of the Rules of
Court. However, we modify the penalty the IBP imposed, and hold that the
respondent should be DISBARREDfrom the practice of law.
SO ORDERED.
On July 8, 2010, the respondent filed a Petition for Judicial Clemency and
Compassion3 praying that his license to practice law be restored based on
humanitarian considerations, but the Court En Bancresolved to deny the
petition for lack of merit.
The respondent subsequently filed on January 11, 2011, an Appeal for
Grace, Succor, and Mercy4 asking the Court to take a second look at the
penalty imposed upon him. He maintained that Conrado N. Que
(complainant) failed to establish by clear and convincing evidence that he
committed grossly immoral conduct meriting the severe penalty of
disbarment. He also attempted to pass the blame on another individual (a
certain Gerolin Piedad, General Manager of Kalayaan Development
Corporation) to free himself from liability by claiming that one of the
charges leading to his disbarment was not of his own doing.
In a Resolution5 dated February 8, 2011, the Court denied the appeal.
The respondent again wrote the Court on July 13, 2011, reiterating his
pleas for the Court’s compassion and mercy.6He sought the Court’s
forgiveness stating that he has learned his lesson; but at the same time,
questioning the Court’s finding for lackof factual support. He appended to
his appeal proofs of his updated payment of IBP membership dues, 7 MCLE
compliance,8 and a letter from the Bishop of Marinduque.9 His appeal,
however, was denied by a Resolution10 dated August 2, 2011.
On May 17, 2012, the respondent sent a letter 11 addressed to the
Members of the Court En Banc once again reiterating his prayer to lift the
order of disbarment. He alleged among others that for more than three
years that he has been disbarred in the practice of law, he has never been
involved in any immoral or illegal activities, has devoted himself in the
services of St. Peter Parish and Shrine, CommonwealthAvenue as
Eucharistic Minister leader, has conducted regular monthly lectures on the
subject of marriage at the Diocese of Novaliches, and has participated as
monthly financial contributor to Mr. Carmel Church, Lucena City. He also
begged the Court to no longer prolong his penalty since it had already
served its purpose. The plea was also denied on July 3, 2012.12
On August 30, 2012, the respondent once more prayed for his
reinstatement professing repentance and remorse for what he did. 13 He
pleaded for the Court’s consideration, and vowed that he will no longer
misuse the rules of procedure but instead, devote his time and energy for
its proper observance and implementation. He also stated that for almost
three years of being disbarred from the practice of law, he has never been
involved in any unlawful, dishonest, and immoral activities. He promised to
maintain at all times a high degree of legal proficiency, morality, integrity,
and fair dealings to the courts, clients, and the legal profession in
accordance with the values and morals embodied in the Code of
Professional Responsibility.
In a Resolution14 dated October 9, 2012, the Court denied his petition for
lack of merit. Aggrieved, the respondent filed on March 27, 2013 a
letter15 pleading the Court to revisit his previousrequests for
reinstatement.
Treating his letter as a motion for the reconsideration of the resolutions
dated August 2, 2011, July3, 2012, and October 9, 2012, the Court, on June
4, 2013 deniedthe motion with finality.16 On July 18, 2014, the respondent
filed a Profound Appeal for Judicial Clemency17 reiterating his apologies to
the Court. He stressed that the penalty of disbarment has already taken its
toll on his health; he has now become most frail and weak; and he had
been diagnosed with chronic kidney disease at stage five (5) and
undergoing dialysis thrice weekly. He also stressed that in the years that he
had been excluded from the practice of law, he devoted his time to
Christian and charity pursuits serving with all humility as a Lay Minister and
a regular lecturer on Legal Aspect of Marriage at St. Peter Church, Quezon
City.
The respondent also pleads for clemency, not because he intends to
practice law again, but to be made whole, to recover from being shattered,
and to finally have peace of mind. Heexpressed his sincere repentance and
deep remorse by taking full responsibility for his misdemeanor. He also
prayed that his disbarment be lifted and that he be reinstated as a
member of the Philippine bar. As part of his petition, he submitted a
Medical Abstract18 evidencing his diagnosis for chronic kidney disease, and
a certification19 from St. Peter Parish, Commonwealth Avenue, Quezon
City, proving that he and his family are dedicated parishioners.
The Court's Ruling
We deny the present appeal.
Membership in the Bar is a privilege burdened with conditions.20 It is not a
natural, absolute or constitutional right granted to everyone who demands
it, but rather, a special privilege granted and continued only to those who
demonstrate special fitness inintellectual attainment and in moral
character.21 The same reasoning applies to reinstatement of a disbarred
lawyer. When exercising its inherent power to grant reinstatement, the
Court should see to it that only those who establish their present moral
fitness and knowledge of the law will be readmitted to the Bar. Thus,
though the doors to the practice of law are never permanently closed on a
disbarred attorney, the Court owes a duty to the legal profession as well as
to the general public to ensure that if the doors are opened,it is done so
only as a matter of justice.22
The basic inquiry in a petition for reinstatementto the practice of law is
whether the lawyer has sufficiently rehabilitated himself or herself in
conduct and character.23 Whether the applicant shall be reinstated in the
Roll of Attorneys rests to a great extent on the sound discretion of the
Court.24 The lawyer has to demonstrate and prove by clear and convincing
evidence that he or she is again worthy of membership in the Bar. The
Court will take into consideration his or her character and standing prior to
the disbarment, the nature and character of the charge/s for which he or
she was disbarred, his or her conduct subsequent to the disbarment, and
the time that has elapsed in between the disbarment and the application
for reinstatement.25
In the present case, we note that before his admission to the Bar, the
respondent had demonstrated an active involvement and participation in
community and church activities by joining Youth For Christ, Catechism,
and Bible Study and Sharing. Likewise, upon admission to the Bar, the
respondent worked as Municipal Attorney in Sta. Cruz, Marinduque
rendering free legal assistance to his townmates who were inneed of legal
service. Thereafter, the respondentwas appointed as a Municipal
Administrator and had continued extending assistance to the indigent
residents.
The respondent also actively engaged and participated in various
community projects, through the Marinduque Jaycees, where he served as
President from 1980 to 1981, and the Integrated Bar of the Philippines
Marinduque Chapter, where he served as a member, Director, and
President from 1982 to 1987.
In his present appeal for judicial clemency, the respondent acknowledged
his indiscretions and claimed to have taken full responsibility for his
misdemeanor. Unlike in his previous petitions/appeal for judicial clemency,
the respondent no longerquestioned the Court’s decision. According to
him, he has long expressed deep remorse and genuine repentance.
The respondent also claimed that the long period of his disbarment gave
him sufficient time to reflect on his professional conduct, to show remorse
and repentance, and to realize the gravity of his mistakes. After his
disbarment, the respondent continued lending assistance, and deviated his
time and effort in pursuing civic and religious work that significantly
contributed to his character reformation.He professed that during his
almost five (5) years of disbarment, he has been an active member of the
Couples for Christ, Marriage Encounter, and Knights of Columbus; and
through his affiliations with these groups, he had served in the ecclesial
affairs in his parish as an Extraordinary Minister for Holy Communion and a
lecturer on Legal Aspect of Marriage Pre-Cana and Marriage Preparation
Seminar at the Parish Church of St. Peter in Commonwealth Avenue,
Quezon City.
Although the Court believes that the respondent is not inherently lacking
in moral fiber as shown by his conduct prior to his disbarment, we are not
convinced that he had sufficiently achieved moral reformation.
In Rodolfo M. Bernardo v. Atty. Ismael F. Mejia,26 the Court, in deciding
whether or not to reinstate Atty. Mejia, considered that 15 years had
already elapsed from the time hewas disbarred, which gave him sufficient
time to acknowledge his infractions and to repent. The Court also took into
account the fact that Atty. Mejiais already of advanced years, has long
repented, and suffered enough. The Court also notedthat he had made a
significant contribution by putting up the Mejia Law Journal containing his
religious and social writings; and the religious organization named "El
Cristo Movement and Crusade on Miracle of the Heart and Mind."
Furthermore, the Court considered that Atty. Mejia committed no other
transgressions since he was disbarred.
Similarly in Adez Realty, Inc. v. Court of Appeals,27 the Court granted the
reinstatement of the disbarred lawyer (found to be guilty of intercalating a
material fact in a CA decision) and considered the period of three (3) years
as sufficient time to do soul-searching and to prove that he is worthy to
practice law. In that case, the Court took into consideration the disbarred
lawyer’s sincere admission of guilt and repeated pleas for compassion.
Also in Valencia v. Antiniw,28 the Court reinstated Atty. Antiniw (who was
found guilty of malpractice in falsifying a notarized deed of sale and
subsequently introducing the document in court) after considering the
long period of his disbarment (almost 15 years). The Court considered that
during Atty. Antiniw’s disbarment, he has been persistent in reiterating his
apologies to the Court, has engaged inhumanitarian and civic services, and
retained an unblemished record as an elected public servant, as shown by
the testimonials of the numerous civic and professional organizations,
government institutions, and members of the judiciary.
In all these cases, the Court considered the conduct of the disbarred
attorney before and after his disbarment, the time that had elapsed from
the disbarment and the application for reinstatement, and more
importantly, the disbarred attorneys’ sincere realization and
acknowledgement of guilt.
In the present case, we are not fully convinced that the passage of more
than four (4) years is sufficient to enable the respondent to reflect and to
realize his professional transgressions.
We emphasize that this is the second timethat the respondent was
accused and was found guilty of gross misconduct.1âwphi1 The
respondent, in an earlier case of Plus Builders, Inc. v. Atty. Anastacio E.
Revilla,Jr.,29 was likewise found guilty of gross misconduct for committing
willful and intentional falsehood before the court; misusing court
procedure and processes to delay the execution of a judgment; and
collaborating with nonlawyers in the illegal practice of law – mostly the
same grounds on which the Decision dated December 4, 2009 (2nd
disbarment) was based. In Plus Builders, we granted the respondent’s
motion for reconsideration and reduced the penalty of suspension from
the practice of law from two (2) years to six (6) months out of compassion
to the respondent.
Considering the respondent’s earlier disbarment case(and subsequent
reduction of the penalty imposed as an act of clemency), and another
disbarment case against him still pending review by the Court, we are not
fully and convincingly satisfied that the respondent has already reformed.
The period of five (5) years is likewise not considerably long considering
the nature and perversityof the respondent’s misdeeds. We believe that it
is still early for the Court to consider the respondent’s reinstatement.
Furthermore, we are not persuaded by the respondent's sincerity in
acknowledging his guilt.1âwphi1 While he expressly stated in his appeal
that he had taken full responsibility of his misdemeanor, his previous
inclination to pass the blame to other individuals, to invoke self-denial, and
to make alibis for his wrongdoings, contradicted his assertion. The
respondent also failed to submit proof satisfactorily showing his contrition.
He failed to establish by clear and convincing evidence that he is again
worthy of membership in the legal profession. We thus entertain serious
doubts that the respondent had completely reformed.
As a final word, while the Court sympathizes with the respondent's
unfortunate physical condition, we stress that in considering his
application for reinstatement to the practice of law, the duty of the Court
is to determine whether he has established moral reformation and
rehabilitation, disregarding its feeling of sympathy or pity. Surely at this
point, this requirement was not met. Until such time when the respondent
can demonstrate to the Court that he has completely rehabilitated himself
and deserves to resume his membership in the Bar, Our decision to disbar
him from the practice of law stands.
WHEREFORE, premises considered, the Profound Appeal for Judicial
Clemency filed by Atty. Anastacio E. Revilla, Jr. is hereby DENIED.
SO ORDERED.
 EN BANC using his supposed influences to urge persons to commit
crimes.
A.M. No. P-220 December 20, 1978
3 — CRIME OF FALSIFICATION. — Information has it that
JULIO ZETA, complainant, he is unfaithfully filing his time record in the CFI. Even he
vs. has been out practicing in the municipal courts
FELICISIMO MALINAO, respondent. sometimes he would fill his time record as present. He
receives salary for those absent days. This can be
checked with time record he has submitted and if he has
any application for leave. He may try to cure it by
submitting application for leave but this should not be
BARREDO, J.:
allowed as he has already committed crime.
Administrative complaint against Felicisimo Malinao court interpreter of
4 — VIOLATION OF EXECUTIVE ORDER AND CIVIL SERVICE
the Court of First Instance of Catbalogan, Samar charging as follows:
LAW.-WE have reliable information it is prohibited for a
civil service employee to engage in private practice any
l — ILLEGALLY APPEARING IN COURT. — MR. Malinao has profession or business without permission from the
been appearing in the municipal court of this town for
Department Head. Mr. Malinao we are sure has not
parties like attorney when he is not an attorney. Reliable
secured that permission because he should not be
information also says he has been appearing in the
allowed to practice as he is not an attorney. If that were
municipal courts of Daram, Zumarraga, Talalora and even
so, he violated that Executive Order and Civil Service Law
Sta. Rita. He is not authorized to do so we believe. He
and we are urgently and earnestly requesting the
makes it his means of livelihood as he collects fees from
Commissioner of Civil Service to investigate him on this.
his clients. He competes with attorneys but does not pay
If warranted he should be given the corresponding
anything. We believe that his doing so should be stopped
penalty as dismissal because we believe he deserve it.
for a good government. These facts can be checked with
(Page 2, Record.)
records of those municipal courts.
After respondent filed the following 3rd indorsement relative to the above
2 — GRAVE MISCONDUCT IN OFFICE. — Being employed
complaint:
in the Court of First Instance he would instigate persons,
especially in his barrio to grab land rob or coerce. In fact
Respectfully returned to the Honorable, the Secretary of
he has cases in the municipal court in this town involving
Justice, Manila, thru the Honorable District Judge, Court
himself and his men. He incite them telling them not to
of First Instance, Branch I, Catbalogan, Samar, and thru
be afraid as he is a court employee and has influence
the Honorable Judicial Superintendent, Department of
over the judges. Those persons being ignorant would
Justice, Manila, the undersigned's reply to the preceding
believe him and so would commit crimes. This act of Mr.
endorsements, to wit: That the alleged letter-complaint
Malinao is contrary to good order and peace as he is
of one Julio Zeta is not inclosed in the first indorsement,
 which absence has also been noticed and noted on the
right hand corner of the said first indorsement by the
Clerk of Court, of this Court; that despite this absence,
and without waiving, however, his right to any pertinent
provision of law, but for respect and courtesy to a
Superior, he hereby states that he has not violated any
rule or law, much less Sec. 12, Rule XVIII of the Civil
Service Rules; that his participation for defendants' cause
was gratuitous as they could not engage the services of
counsel by reason of poverty and the absence of one in
the locality, said assistance has also checked the
miscarriage of justice by the Presiding Municipal Judge,
now resigned; that he is attaching herewith a carbon-
original of a pleading submitted by Atty. Simeon
Quiachon the attorney of record for the defendants in
Civil Case No. 24, entitled 'Jose Kiskisan versus Fidel
Pacate, et al. for Forcible Entry, in the Municipal Court of
Talalora, Samar, which is a 'Motion To Withdraw
Exhibits', as Annex 'A', as part of this reply. (Page 5, Rec.)
the Department of Justice that had jurisdiction over the matter then,
referred the said complaint and answer to District Judge Segundo Zosa,
Court of First Instance, Catbalogan, Western Samar, for investigation,
report and recommendation, and after due hearing, Judge Zosa submitted
his report pertinent parts of which read thus:
Inspite of diligent efforts exerted by the Court to
subpoena the complainant, Julio Zeta, who is said to be a
resident of Zumarraga, Samar the same had failed
because the said Julio Zeta appears to be a fictitious
person
Inspite of the failure of the complainant to appear in the
investigation in connection with his complaint against
Felicisimo Malinao, the Court nevertheless proceeded to
investigate the case against him by calling Judge
Restituto Duran of Sta. Rita, Samar, Judge Juanito Reyes
of Zumarraga, Samar and Judge Miguel Avestruz of
Daram, Samar.
Judge Restituto Duran of Sta. Rita, Samar, declared that
according to his docket books the respondent appeared
as counsel for Vicente Baculanlan in criminal case No.
1247 in the Municipal Court of Sta. Rita, Samar, for grave
threats and in criminal case No. 1249 for the same
accused and Romulo Villagracia for illegal possession of
firearm on August 5, 1960 and on September 17, 1970.
Judge Miguel Avestruz of Daram, Samar, declared that
the respondent appeared as counsel in civil case No. 39
in the Municipal Court of Daram, Samar, entitled Felix
Versoza versus Victor Payao, et al., for forcible entry on
December 15, 1962, January 26, 1963, February 18, 1963
and on March 1, 1963.
Judge Juanito Reyes declared that on March 27, 1969,
the respondent appeared as counsel for the defendant in
civil case No. 318 of the Municipal Court of Zumarraga
entitled Restituto Centino versus Jesus Tizon for forcible
entry and again on June 17, 1970 in the same case.
From the certification of the Clerk of this Court, it
appears that the respondent had the following entries in
his daily time record:
1. Was on leave from office on August 5, 1960 and
September 17, 1960;
2. Was present in office on December l5, 1962;
3. Was present in office on January 26, 1963, and present
also on February 18, 1963 but undertime by 1 hour;
4. Was on leave from office on March 1, 1963;
5. Was on leave from office on March 27, 1969; and
6. Was present in office on June 17, 1970 but undertime
by 5 hours.
Comparing the dates when the respondent appeared
before the aforementioned Municipal Courts with his
daily time records, he made it appear that on December
15, 1962 and February 18, 1963 he was present in his
office although according to the testimony of Judge
Miguel Avestruz he was before his Court on December
15, 1962 as well as on February 18, 1963. Again
according to Judge Juanito Reyes the respondent
appeared in his Court on June 17, 1970. The respondent
again made it appear in his daily time record that he was
present with an undertime of five hours. The respondent
did not offer any plausible explanation for this
irregularity.
xxx xxx xxx
With respect to the crime of falsification of his daily time
record as shown by the evidence, he had made it appear
that he was present in his office on December 15, 1962,
February 18, 1963 and June 17, 1970 when as a matter of
fact he was in the Municipal Court of Daram attending to
a case entitled Felix Versoza versus Victor Payao, et
al., for forcible entry as well as in the Municipal Court of
Zumarraga attending to Civil Case No. 318
entitled Restituto Centino versus Jesus Tizon for forcible
entry. The Inquest Judge respectfully recommends that
he be given stern warning and severe reprimand for this
irregularity.
With respect to the fourth charge, for violation of Section
12, Rule XVIII, Republic Act 2260, as amended, again the
evidence shows that respondent had been appearing as
counsel in the municipal courts of Sta. Rita, Daram and
Zumarraga in violation of the rules of the Civil Service
Law. (Pp. 28-31, Record.)
We have carefully reviewed the record, and We find the conclusions of fact
of the Investigator to be amply supported by the evidence, particularly the
documents consisting of public records and the declarations of the judges
before whom respondent had appeared. It is clear to Us that respondent,
apart from appearing as counsel in various municipal courts without prior
permission of his superiors in violation of civil service rules and regulations,
falsified his time record of service by making it appear therein that he was
present in his office on occasions when in fact he was in the municipal
courts appearing as counsel, without being a member of the bar, which,
furthermore, constitutes illegal practice of law. We, therefore, adopt the
above findings of fact of the Investigator.
The defense of respondent that "his participation (sic) for defendants'
cause was gratuitous as they could not engage the services of counsel by
reason of poverty and the absence of one in the locality" cannot, even if
true, carry the day for him, considering that in appearing as counsel in
court, he did so without permission from his superiors and, worse, he
falsified his time record of service to conceal his absence from his office on
the dates in question. Indeed, the number of times that respondent acted
as counsel under the above circumstances would indicate that he was
doing it as a regular practice obviously for considerations other than pure
love of justice.
In the premises, it is quite obvious that the offense committed by
respondent is grave, hence it warrants a more drastic sanction than that of
reprimand recommended by Judge Zosa. We find no alternative than to
separate him from the service, with the admonition that he desist from
appearing in any court or investigative body wherein Only members of the
bar are allowed to practice.
WHEREFORE, respondent Felicisimo Malinao is hereby ordered dismissed
from his position as interpreter in the Court of First Instance, CFI,
Zumarraga, Western Samar with prejudice to reemployment in the judicial
branch of the government.
YNARES-SANTIAGO, J.:

FIRST DIVISION
Before us is an original petition[1] for contempt filed by petitioners
Rogelio Tan, Norma Tan and Maliyawao Pagayokan against respondent
ROGELIO A. TAN, NORMA TAN G.R. No. 169517
Benedicto Balajadia.
and MALIYAWAO PAGAYOKAN,

Petitioners, Present:
Panganiban, C.J.
Petitioners allege that on May 8, 2005, respondent filed a criminal
(Chairperson),
- versus - Ynares-Santiago, case against them with the Office of the City of Prosecutor of Baguio City for

Austria-Martinez, usurpation of authority, grave coercion and violation of city tax ordinance
due to the alleged illegal collection of parking fees by petitioners from
Callejo, Sr.,
and respondent. In paragraph 5 of the complaint-affidavit, respondent asserted

Chico- that he is a practicing lawyer based in Baguio City with office address at
Nazario, JJ. Room B-207, 2/F Lopez Building, Session Road, Baguio City.[2] However,

BENEDICTO M. BALAJADIA, certifications issued by the Office of the Bar Confidant[3] and the Integrated
Bar of the Philippines[4] showed that respondent has never been admitted
Respondent. Promulgated:
to the Philippine Bar. Hence, petitioners claim that respondent is liable for
indirect contempt for misrepresenting himself as a lawyer.
March 14, 2006

x ---------------------------------------------------------------------------------------- x
In his Comment,[5] respondent avers that the allegation in
paragraph 5 of the complaint-affidavit that he is a practicing lawyer was an
DECISION
honest mistake. He claims that the secretary of Atty. Paterno Aquino
prepared the subject complaint-affidavit which was patterned after Atty.
Aquinos complaint-affidavit.[6] It appears that Atty. Aquino had previously
filed a complaint-affidavit against petitioners involving the same subject
matter.
Respondent claims that two complaint-affidavits were drafted by
the same secretary; one for the May 5, 2005 parking incident at 10:00
oclock in the morning and another for the parking incident on the same date
but which occurred at 1:00 oclock in the afternoon. Respondent insists that
the complaint-affidavit regarding the 1:00 oclock parking incident correctly
alleged that he is a businessman with office address at Room B-204, 2/F
Lopez Building, Session Road, Baguio City.[7] However, the complaint-
affidavit regarding the 10:00 oclock parking incident, which is the subject of
the instant petition, erroneously referred to him as a practicing lawyer
because Atty. Aquinos secretary copied verbatim paragraph 5 of Atty.
Aquinos complaint-affidavit. Hence, it was inadvertently alleged that
respondent is a practicing lawyer based in Baguio City with office address at
Room B-207, 2/F Lopez Building, Session Road, Baguio City, which
statement referred to the person of Atty. Aquino and his law office address.
Liza Laconsay, Atty. Aquinos secretary, executed an
affidavit[8] admitting the mistake in the preparation of the complaint-
affidavit. Respondent alleged that he did not read the complaint-affidavit
because he assumed that the two complaint-affidavits contained the same
allegations with respect to his occupation and office address. Respondent
claims that he had no intention of misrepresenting himself as a practicing
lawyer.
In their Reply,[9] petitioners reiterate that respondent should be
made liable for indirect contempt for having made untruthful statements in
the complaint-affidavit and that he cannot shift the blame to Atty. Aquinos
secretary.
The sole issue for resolution is whether respondent is liable for
indirect contempt.
Section 3(e), Rule 71 of the Rules of Court provides:
Section 3. Indirect contempt to be punished after
charge and hearing. After a charge in writing has been
filed, and an opportunity given to the respondent to
comment thereon within such period as may be fixed by
the court and to be heard by himself or counsel, a person
guilty of any of the following acts may be punished for
indirect contempt:
xxxx
(e) Assuming to be an attorney or an officer of a
court, and acting as such without authority;

x x x x.
In several cases,[10] we have ruled that the unauthorized practice of
law by assuming to be an attorney and acting as such without authority
constitutes indirect contempt which is punishable by fine or imprisonment
or both. The liability for the unauthorized practice of law under Section 3(e),
Rule 71 of the Rules of Court is in the nature of criminal contempt and the
acts are punished because they are an affront to the dignity and authority
of the court, and obstruct the orderly administration of justice. In
determining liability for criminal contempt, well-settled is the rule that
intent is a necessary element, and no one can be punished unless the
[11]
evidence makes it clear that he intended to commit it.
In the case at bar, a review of the records supports respondents
claim that he never intended to project himself as a lawyer to the public. It
was a clear inadvertence on the part of the secretary of Atty Aquino. The
affidavit of Liza Laconsay attesting to the circumstances that gave rise to the
mistake in the drafting of the complaint-affidavit conforms to the
documentary evidence on record. Taken together, these circumstances
show that the allegation in paragraph 5 of respondents complaint-affidavit
was, indeed, the result of inadvertence.
Respondent has satisfactorily shown that the allegation that he is a
practicing lawyer was the result of inadvertence and cannot, by itself,
establish intent as to make him liable for indirect contempt. In the cases
where we found a party liable for the unauthorized practice of law, the party
was guilty of some overt act like signing court pleadings on behalf of his
client;[12] appearing before court hearings as an attorney;[13] manifesting
before the court that he will practice law despite being previously denied
admission to the bar;[14] or deliberately attempting to practice law and
holding out himself as an attorney through circulars with full knowledge that
he is not licensed to do so.[15]
In the case at bar, no evidence was presented to show that
respondent acted as an attorney or that he intended to practice
law. Consequently, he cannot be made liable for indirect contempt
considering his lack of intent to illegally practice law.
However, while the evidence on record failed to prove respondents
deliberate intent to misrepresent himself as an attorney and act as such
without authority, he is hereby warned to be more careful and circumspect
in his future actions.
WHEREFORE, the petition is DISMISSED. Respondent
is WARNED to be more careful and circumspect in his future actions.
 SO ORDERED.
On February 13, 2004, an administrative complaint[1] was filed by
complainant Luzviminda C. Lijauco against respondent Atty. Rogelio P.
FIRST DIVISION
Terrado for gross misconduct, malpractice and conduct unbecoming of an
officer of the court when he neglected a legal matter entrusted to him
LUZVIMINDA C. LIJAUCO, A.C. No. 6317 despite receipt of payment representing attorneys fees.
Co mp lain an t,
Pr e sen t:
Panganiban, C.J. (Chairperson),
According to the complainant, she engaged the services of
- versus - Ynares-Santiago, respondent sometime in January 2001 for P70,000.00 to assist in recovering
Austria-Martinez, her deposit with Planters Development Bank, Buendia, Makati branch in the
Callejo, Sr., amount of P180,000.00 and the release of her foreclosed house and lot
and located in Calamba, Laguna. The property identified as Lot No. 408-C-2 and
Chico- registered as TCT No. T-402119 in the name of said bank is the subject of a
Nazario, JJ. petition for the issuance of a writ of possession then pending before the
ATTY. ROGELIO P. TERRADO, Regional Trial Court of Binan, Laguna, Branch 24 docketed as LRC Case No.
Respondent. Promulgated:
August 31, 2006 B-2610.

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

Complainant alleged that respondent failed to appear before the

DECISION trial court in the hearing for the issuance of the Writ of Possession and did
not protect her interests in the Compromise Agreement which she
subsequently entered into to end LRC Case No. B-2610.[2]
YNARES-SANTIAGO, J.:

Respondent denied the accusations against him. He averred that
the P70,000.00 he received from complainant was payment for legal
services for the recovery of the deposit with Planters Development Bank and
did not include LRC Case No. B-2610 pending before the Regional Trial Court
of Bian, Laguna.
The complaint was referred[3] to the Integrated Bar of the
Philippines (IBP) for investigation, report and recommendation.
On September 21, 2005, the Investigating Commissioner submitted his
report finding respondent guilty of violating Rules 1.01 and 9.02 of the Code
of Professional Responsibility which provide:
Rule 1.01 A lawyer shall not engage in unlawful,
dishonest, immoral or deceitful conduct.
Rule 9.02 A lawyer shall not divide or stipulate to
divide a fee for legal services with persons not licensed to
practice law, except:
a) Where there is a pre-existing agreement with
a partner or associate that, upon the latters death, money
shall be paid over a reasonable period of time to his estate
or to the persons specified in the agreement; or
b) Where a lawyer undertakes to complete
unfinished legal business of a deceased lawyer; or
c) Where a lawyer or law firm includes non-
lawyer employees in a retirement plan, even if the plan is
based in whole or in part, on a profit-sharing arrangement.
In finding the respondent guilty of violating Rules 1.01 and 9.02 of
the Code of Professional Responsibility, the Investigating Commissioner
opined that:
In disbarment proceedings, the burden of proof
rests upon the complainant. To be made the suspension
or disbarment of a lawyer, the charge against him must be
established by convincing proof. The record must disclose
as free from doubt a case which compels the exercise by
the Supreme Court of its disciplinary powers. The dubious
character of the act done as well as of the motivation
thereof must be clearly demonstrated. x x x.
In the instant scenario, despite the strong
protestation of respondent that the Php70,000.00 legal
fees is purely and solely for the recovery of the
Php180,000.00 savings account of complainant
subsequent acts and events say otherwise, to wit:
1.) The Php70,000.00 legal fees for the recovery of a
The IBP Board of Governors adopted the recommendation of the
Php180,000.00 savings deposit is too high;
investigating commissioner.[6]
2.) Respondent actively acted as complainants lawyer to
effectuate the compromise agreement.

We agree with the findings of the IBP.

By openly admitting he divided the Php70,000.00
to other individuals as commission/referral fees
respondent violated Rule 9.02, Canon 9 of the Code of
Professional Responsibility which provides that a lawyer The practice of law is a privilege bestowed on those who show that
shall not divide or stipulate to divide a fee for legal they possessed and continue to possess the legal qualifications for it.
services with persons not licensed to practice law. Worst,
Indeed, lawyers are expected to maintain at all times a high standard of
by luring complainant to participate in a compromise
agreement with a false and misleading assurance that legal proficiency and morality, including honesty, integrity and fair dealing.
complainant can still recover after Three (3) years her They must perform their fourfold duty to society, the legal profession, the
foreclosed property respondent violated Rule 1.01, Canon
1 of the Code of Professional Responsibility which says a courts and their clients, in accordance with the values and norms of the
lawyer shall not engage in unlawful, dishonest, immoral or legal profession as embodied in the Code of Professional Responsibility.[7]
deceitful conduct.[4]

Lawyers are prohibited from engaging in unlawful, dishonest,

immoral or deceitful conduct[8] and are mandated to serve their clients
The Investigating Commissioner thus recommended:
with competence and diligence.[9] They shall not neglect a legal matter
entrusted to them, and this negligence in connection therewith shall render

WHEREFORE, finding respondent responsible for them liable.[10]

aforestated violations to protect the public and the legal
profession from his kind, it is recommended that he be
suspended for Six (6) months with a stern warning that
similar acts in the future will be severely dealt with.[5]
Respondents claim that the attorneys fee pertains only to the
recovery of complainants savings deposit from Planters Development Bank
cannot be sustained. Records show that he acted as complainants counsel
in the drafting of the compromise agreement between the latter and the
bank relative to LRC Case No. B-2610. Respondent admitted that he
explained the contents of the agreement to complainant before the latter Under Section 27, Rule 138 of the Rules of Court, a member of the
affixed her signature. Moreover, the Investigating Commissioner observed Bar may be disbarred or suspended on the following grounds: 1) deceit; 2)
that the fee of P70,000.00 for legal assistance in the recovery of the deposit malpractice, or other gross misconduct in office; 3) grossly immoral
amounting to P180,000.00 is unreasonable. A lawyer shall charge only fair conduct; 4) conviction of a crime involving moral turpitude; 5) violation of
[11]
and reasonable fees. the lawyers oath; 6) willful disobedience to any lawful order of a superior
Respondents disregard for his clients interests is evident in the court; and 7) willfully appearing as an attorney for a party without
iniquitous stipulations in the compromise agreement where the authority.
complainant conceded the validity of the foreclosure of her property; that
the redemption period has already expired thus consolidating ownership in
In Santos v. Lazaro[16] and Dalisay v. Mauricio, Jr.,[17] we held that
[12]
the bank, and that she releases her claims against it. As found by the
Rule 18.03 of the Code of Professional Responsibility is a basic postulate in
Investigating Commissioner, complainant agreed to these concessions
legal ethics. When a lawyer takes a clients cause, he covenants that he will
because respondent misled her to believe that she could still redeem the
exercise due diligence in protecting his rights. The failure to exercise that
property after three years from the foreclosure. The duty of a lawyer to
degree of vigilance and attention makes such lawyer unworthy of the trust
safeguard his clients interests commences from his retainer until his
reposed in him by his client and makes him answerable not just to his client
discharge from the case or the final disposition of the subject matter of
but also to the legal profession, the courts and society.
litigation. Acceptance of money from a client establishes an attorney-client
relationship and gives rise to the duty of fidelity to the clients cause. The
canons of the legal profession require that once an attorney agrees to
A lawyer should give adequate attention, care and time to his
handle a case, he should undertake the task with zeal, care and utmost
clients case. Once he agrees to handle a case, he should undertake the task
devotion.[13]
with dedication and care. If he fails in this duty, he is not true to his oath as
a lawyer. Thus, a lawyer should accept only as much cases as he can
efficiently handle in order to sufficiently protect his clients interests. It is
Respondents admission[14] that he divided the legal fees with two
not enough that a lawyer possesses the qualification to handle the legal
other people as a referral fee does not release him from liability. A lawyer
matter; he must also give adequate attention to his legal work. Utmost
shall not divide or stipulate to divide a fee for legal services with persons not
licensed to practice law, except in certain cases.[15]
 EN BANC
fidelity is demanded once counsel agrees to take the cudgels for his clients
cause.[18]

PLUS BUILDERS, INC. A.C. No. 7056

In view of the foregoing, we find that suspension from the practice and EDGARDO C.
of law for six months is warranted. In addition, he is directed to return to GARCIA, Present:
complainant the amount he received by way of legal fees pursuant to
Complainants,
existing jurisprudence.[19]
PANGANIBAN, CJ,

PUNO,

WHEREFORE, Atty. Rogelio P. Terrado is found GUILTY of violating QUISUMBING,

Rules 1.01, 9.02, 18.02 and 20.01 of the Code of Professional Responsibility. YNARES-SANTIAGO,
He is SUSPENDED from the practice of law for six (6) monthseffective from
SANDOVAL-GUTIERREZ,
notice, and STERNLY WARNED that any similar infraction will be dealt with
- versus - CARPIO,
more severely. He is further ordered to RETURN, within thirty (30) days from
AUSTRIA-
notice, the sum of P70,000.00 to complainant Luzviminda C. Lijauco and to
MARTINEZ,
submit to this Court proof of his compliance within three (3) days therefrom.
CORONA,

CARPIO MORALES,

Let copies of this Decision be entered in the record of respondent CALLEJO, SR.,
and served on the IBP, as well as on the Court Administrator who shall AZCUNA,
circulate it to all courts for their information and guidance.
TINGA,

CHICO -
NAZARIO,
SO ORDERED.
GARCIA, and
 VELASCO, JR., JJ

Atty. ANASTACIO E. and the marginalized.For failing miserably to live by this oath and Code,
REVILLA, JR., Promulgated:
respondent must be sanctioned.
Respondent. Septiembre 13, 2006

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

The Case and the Facts

DECISION

PANGANIBAN, CJ:
This administrative case originated from a Verified Petition for

Disbarment[1] filed by Plus Builders Inc. and Edgardo C. Garcia before the

By their oath and under the Code of Professional Responsibility, lawyers Integrated Bar of the Philippines (IBP). Complainants charged Atty.

must uphold truth and justice above everything else, even above their own Anastacio E. Revilla, Jr. with committing a willful and intentional falsehood

and their clients interests. They must be willing and able to stand for their before the court; misusing court procedure and processes to delay the

convictions against all odds; to carry on in spite of seemingly execution of a judgment; and collaborating with non-lawyers in the illegal

insurmountable opposition; and to be beacons for the weak, the oppressed practice of law.

The material averments of the Complaint are as follows:


On April 7, 1999, Plus Builders Inc. filed before
the Provincial Adjudicator of Cavite (PARAD) of DAR,
DARAB CASE NOS. R-402-027-99 up to R-402-031-99,
inclusive, against Leopoldo De Guzman, Heirs of
Bienvenido De Guzman, Apolonio Ilas and Gloria Martirez
Siongco, Heirs of Faustino Siongco; Serafin Santarin,
Benigno Alvarez and Maria Esguerra, et al; hereinafter
called [tenants/farmers] x x x.
On November 15, 1999, the Provincial
Adjudicator of Cavite (PARAD) rendered a consolidated
Decision in favor of petitioner/complainant [Plus Builders,
Inc.], and against [tenants/farmers]. x x x.
[Tenants/farmers] filed several verified pleadings
as part of the records of DARAB cases above-mentioned
alleging under oath that they were MAGSASAKANG
NAMUMUWISAN or mere tenants of subject properties,
acknowledging the rights of the registered owners at that
time, even before the ownership and title were
transferred to Petitioner/ Complainant Plus Builders, Inc.
x x x.
On Dec[ember] 17, 1999, counsel for
TENANTS/FARMERS who at that time was Atty. Damian S.
J. Vellaseca, filed a pro-forma Motion for Reconsideration
and Manifestation x x x. As a result, PARAD did not give
due course to the same x x x.
On March 27, 2000, another counsel for
TENANTS/FARMERS, by the name of Atty. Willy G. Roxas,
who represented himself as counsel for
TENANTS/FARMERS, filed a manifestation stating that he
is representing TENANTS/FARMERS and alleged that they
were bona fide members of the [Kalayaan Development
Cooperative] (KDC). Thereafter, he filed a Notice of Appeal
on March 27, 2000 stating that they received the Decision
on March 14, 2000 and alleged that the Decision is against
the law and jurisprudence x x x.
On May 31, 2001, Respondent Anastacio Revilla
Jr., knowing that there was a monetary judgment by way
of Disturbance Compensation granted to
Tenants/Farmers, x x x filed a Motion for Leave of Court to
Allow Correction of Caption and Amendment of Judgment
(referring to the Decision of PARAD of Cavite dated
November 15, 1999 x x x) with a prayer x x x to include the
name of the KALAYAAN DEVELOPMENT CORPORATION
representing the following respondents herein above
stated in the caption of [the] pleading. Also, a Contract of
Retainership dated April 4, 2001 was attached to the
Motion x x x to make x x x KDC represented by
Respondent, [the] retained x x x counsel on record x x x.
After realizing that his motion failed to give him
beneficial monetary gain from the PARAD judgment, a
Petition for Preliminary Injunction with prayer for Issuance
of Temporary Restraining Order and to Quash Alias Writ of
Execution with Demolition plus Damages dated July 18,
2001 was filed by Respondent x x x before the DARAB
Central Office, Quezon City, notwithstanding the fact that
this instant case was appealed by another lawyer (Atty.
Willy Roxas). x x x.
On the basis of this Petition, a Temporary
Restraining Order by the DARAB Central Office, Quezon
City, was issued on July 25, 2001 and an extension of or
another Temporary Restraining Order was issued dated
August 24, 2001, as a result of the active participation of
Respondent x x x.
Emboldened by the two (2) TROs coming from
DARAB Central Office, Respondent x x x filed an Indirect
Contempt case dated August 28, 2001 against Plus Builders
Inc. and their Board of Directors, Edgardo Garcia and [its]
counsel Atty. Leopoldo S. Gonzalez before the same Office. x
x x.
Sensing a series of orders against herein
Petitioners and considering, further, that the DARAB
Central Office refused to hear arguments from Petitioners
on the two (2) questionable TROs, Petitioners decided to
elevate the matter to the Court of Appeals by way of a
Petition for Certiorari. A Decision was rendered by the
Court of Appeals on [December] 20, 2001 stating that:
WHEREFORE, the petition is
GRANTED. The assailed orders issued by
the DARAB are hereby declared NULL
AND VOID for having been issued
without jurisdiction. Consequently, this
Court sees no impediment for the
IMPLEMENTATION of the 15 November
1999 Decision of the provincial
adjudicator.
SO ORDERED.
This incident was further elevated to the
Supreme Court by Respondent x x x through a Petition, but
said Petition was dismissed with finality x x x.
Enraged by his defeat, Respondent x x x filed a
verified Action to Quiet Title before the Regional Trial
Court of Imus, Cavite praying for a Temporary Restraining
Order (TRO), among others, to deliberately and
maliciously stop the enforcement of the Decisions of the
higher courts to implement the PARAD Decision dated
November 15, 1999. x x x.
xxxxxxxxx
Respondent signed his pleading under a group of
non-lawyers joining him in the practice of law as [KDC]
LEGAL SERVICES, LAW OFFICERS AND ASSOCIATES which
included KDC as law partners in violation of the Rules on
the practice of law with non-lawyers. As a matter of fact,
under the Retainership Contract submitted by
Respondent before the PARAD of Cavite, it was specifically
mentioned that legal fees were to be collected as counsel
 on record for the cooperative and respondent. Therefore,
this contract was effectively used [for] unlawful
solicitation of clients in the practice of law with non-
lawyers, being the cooperative (KDC) to become counsel
on record [sic] x x x.
On March 6, 2003, the Regional Trial Court of
Imus, Cavite quashed the earlier issued TRO and dismissed
the case on the ground of res judicata because the Court
of Appeals ruled that, x x x the Decision of the Provincial
Adjudicator of DAR dated November 15, 1999 has already
become final x x x and that, prescription does not run
against registered land. x x x.[2]
In his Answer[3] dated March 29, 2004, respondent denied the
charges against him. He averred that by filing the action to quiet title in Civil
Case No. 2763-03, he had merely wanted to protect the rights and interests
of his clients. According to him, they sincerely and honestly believed that
their possession of the litigated land had already ripened into ownership. He
explained thus:
Notwithstanding the claim of said farmers of
tenancy relationship with [the] previous owner in the
decisions of PARA[D], Court of Appeals and Supreme
Court in the DISTURBANCE COMPENSATION CASES,
(DARAB CASE NO. R-402-025-99; R-402-026-99; R-402-
027-99; R-402-028-99; R-402-029-99; R-402-030-99; R-
402-031-99) the said farmers, are not precluded, by any
law or jurisprudence, from entertaining in good faith an
opinion or belief that they could legally be considered as
owners of the subject-property precisely because of the
undisputed fact that they have been in possession thereof
in an open, continuous, public, uninterrupted possession
for more than fifty (50) years. x x x.
It was on the basis of [a] sincere and honest belief
and opinion o[f] acquiring ownership of the land through
prescription that the said farmers had decided to pursue
and file the Action to Quiet Title in Civil Case No. 2763-03,
before the RTC of Imus, Cavite, Branch 20 x x x.
xxxxxxxxx
It should be stressed that the decisions of
the PARA[D], Court of Appeals and the Supreme Court in
DARAB CASE No. R-402-025-99; R-402-026-99; R-402-027-
99; R-402-028-99; R-402-029-99; R-402-030-99; R-402-
031-99, [i]ndisputably refer only to the fixing of
disturbance compensations. They did not in any way,
involve [the] question of ownership of the subject
property, which is the subject matter of Civil Case No.
2763-03, (Action to Quiet Title), filed before the RTC of
Imus, Cavite, Branch 20.

In a Reply[5] dated April 12, 2004, complainants emphasized that

xxxxxxxxx
the nature of the possession of the subject land by respondents clients had

As new counsel of the said farmers x x x,

already been settled in the case for disturbance compensation.
respondent has the complete discretion [of] what legal
strategy or cause of action to undertake on their behalf
and the complainant and their counsel have no business Complainants maintained that the PARAD Decision, which was sustained by
or right to interfere with or dictate [upon] the respondent
on how to protect the rights and interests of said farmers
the Court of Appeals and the Supreme Court, clearly stated that these clients
under the applicable law and jurisprudence.

were mere tenants of the land. Thus, adverse possession could not be
xxxxxxxxx
claimed by respondent in good faith, especially when he had previously

Respondent respectfully submits that he has not acknowledged the rights of complainants as landowners.
committed any illegal, unlawful, unjust, wrongful or
immoral acts towards the complainant. Respondent, in
good faith filed the aforesaid cases (Action to Quiet Title,
RTC, Imus, Cavite, Branch 20; and Petition for Issuance of
Preliminary Injunction and TRO, and Complaint before the
Ombudsman), as a lawyer sworn to uphold justice and the On August 4, 2004, both parties appeared at a hearing scheduled
law who was the bounden duty to exert utmost efforts to
defend his client and protect his right, no matter how
guilty or evil he appears to be, especially if they are poor by Edmund T. Espina, commissioner of the Integrated Bar of the Philippines-
and uneducated like the said farmers.[4]
Commission on Bar Discipline (IBP-CBD).During the hearing, the parties were

directed to submit their respective Memoranda.

 satisfactorily explained nor specifically denied by the latter. The failure of

Report and Recommendation of the IBP-CBD

respondent to do so led to the presumption that the allegation was true.

In his April 30, 2005 Report,[6] Investigating Commissioner Espina

found respondent guilty of violating the attorneys oath and the Code of
Thus, his suspension from the practice of law for two years was

Professional Responsibility.[7] Allegedly, respondent had maliciously

recommended by the investigating commissioner. In Resolution No. XVII-

concealed the defeat of his clients in the case before the PARAD of Cavite
2005-172,[9] the board of governors of the IBP adopted the findings and

and the higher courts,[8] in order to secure a temporary restraining order

recommendation of IBP Commissioner Espina.

from the RTC of Imus, Cavite. As a result, he was able to delay the execution
The Resolution, together with the records of the case, was
of the provincial adjudicators Decision dated November 15, 1999.
transmitted to this Court for final action,[10] pursuant to Rule 139-B Section

12(b).

Moreover, Commissioner Espina opined that the charge that

The Courts Ruling

respondent had been engaged in the unlawful practice of law was neither
We agree with the findings and recommendation of the IBP board of Good faith, fairness and candor constitute the essence of

governors. membership in the legal profession.[15] Thus, while lawyers owe fidelity

to the cause of their client, they must never abuse their right of

recourse to the courts by arguing a case that has repeatedly been

Administrative Liability of Respondent
rejected. Neither should they use their knowledge of the law as an
Lawyers are officers of the court, called upon to assist in the
instrument to harass a party or to misuse judicial processes. These acts
administration of justice. They act as vanguards of our legal
constitute serious transgression of their professional oath.[16]
system,[11] protecting and upholding truth and the rule of law.[12]They

are expected to act with honesty in all their dealings, especially with the
In the present case, respondent claims good faith in pursuing
courts. Verily, the Code of Professional Responsibility enjoins lawyers
the cause of his clients. The records show, however, that his course of
from committing or consenting to any falsehood in court or from
legal action was obviously a stratagem. It was meant to delay unduly
[13]
allowing the courts to be misled by any artifice. Moreover, they are
the execution of the provincial adjudicators Decision dated November
obliged to observe the rules of procedure and not to misuse them to
15, 1999.
[14]
defeat the ends of justice.
 It must be noted that when the Court of Appeals and this Court relationship existing between his clients and complainants, as correctly

upheld that Decision, respondent resorted to a different forum to observed by IBP Commissioner Espina.

pursue his clients lost cause. In the disturbance compensation case, he

represented his clients as tenants and acknowledged that complainants The propensity of respondent for doublespeak was also

were the owners of the subject land. In the action to quiet title, revealed in his declaration that his clients were pauper litigants. His

however, he conveniently repudiated his previous admission by falsely prayer for an exemption to pay court fees, on the ground that they did

alleging that his clients were adverse possessors claiming bona fide not have sufficient income,[17] was granted by the trial court. Earlier,

ownership. Consequently, he was able to obtain a temporary however, he admitted that they had engaged the services of his legal

restraining order preventing the execution of the provincial office for a fee of P20,000, in addition to P2,500 per appearance in

adjudicators Decision. court. Also, in the action to quiet title, he even alleged that they were

willing to post a bond to answer for damages, in the event that the court

Clearly, he was shielding his clients from the Order of ruled in favor of the defendants. These facts contravene his claim that

execution. Contrary to his later claim of ownership of the land, he his clients could not afford to pay the appropriate court fees.

cannot feign ignorance of his previous admission of a tenancy

 In support of the cause of their clients, lawyers have the duty

to present every remedy or defense within the authority of the law. Moreover, we agree with the finding of IBP Commissioner

This obligation, however, must never be at the expense of truth and Espina that the silence or failure of respondent to challenge the

justice,[18] as explained in Choa v. Chiongson:[19] allegation that he allowed non-lawyers to engage in the unauthorized

While a lawyer owes absolute fidelity to the cause of

practice of law may be deemed an admission of the truth of the
his client, full devotion to his genuine interest, and warm
zeal in the maintenance and defense of his rights, as well as
the exertion of his utmost learning and ability, he must do accusation. We note that complainants successfully substantiated their
so only within the bounds of the law. He must give a candid
and honest opinion on the merits and probable results of his claim that respondent, who held himself out as a law partner of the KDC
clients case with the end in view of promoting respect for
the law and legal processes, and counsel or maintain such
actions or proceedings only as appear to him to be just, and Legal Services, Law Offices and Associates, was rendering legal services
such defenses only as he believes to be honestly debatable
under the law. He must always remind himself of the oath together with persons not licensed to practice law. His silence on this
he took upon admission to the Bar that he will not wittingly
or willingly promote or sue any groundless, false or unlawful
suit nor give aid nor consent to the same; and that he will accusation is deemed an admission, especially because he had every
conduct [himself] as a lawyer according to the best of [his]
knowledge and discretion with all good fidelity as well to the chance to deny it.[21]
courts as to [his] clients. Needless to state, the lawyers
fidelity to his client must not be pursued at the expense of
Canon 9 and Rule 9.01 of the Code of Professional
truth and the administration of justice, and it must be done
within the bounds of reason and common sense. A lawyers
responsibility to protect and advance the interests of his Responsibility provide thus:
client does not warrant a course of action propelled by ill
motives and malicious intentions against the other party.[20] Canon 9 A lawyer shall not directly or indirectly
assist in the unauthorized practice of law.
 Rule 9.01 A lawyer shall not action, to aid a layman in the unauthorized practice of
delegate to any unqualified person the law.[23]
performance of any task which by law
may only be performed by a member of
the Bar in good standing.

Respondent failed to live up to the exacting standards

expected of him as a vanguard of law and justice. In line with

The significance of this professional norm was emphasized jurisprudence, he is held liable for gross misconduct and is suspended

in Cambaliza v. Cristal-Tenorio,[22] which we quote: from the practice of law. [24]

The lawyers duty to prevent, or at the very least

not to assist in, the unauthorized practice of law is
founded on public interest and policy. Public policy
requires that the practice of law be limited to those WHEREFORE, Anastacio E. Revilla, Jr. is hereby found guilty of gross
individuals found duly qualified in education and
character. The permissive right conferred on the lawyer is misconduct and is SUSPENDED for two years from the practice of law,
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, effective upon his receipt of this Decision. He is warned that a repetition of
the court, the client, and the bar from the incompetence
or dishonesty of those unlicensed to practice law and not the same or similar acts will be dealt with more severely.
subject to the disciplinary control of the Court. It devolves
upon a lawyer to see that this purpose is attained. Thus,
the canons and ethics of the profession enjoin him not to
permit his professional services or his name to be used in
aid of, or to make possible the unauthorized practice of
law by, any agency, personal or corporate. And, the law
makes it a misbehavior on his part, subject to disciplinary
 Complainant alleged, among others, that sometime in 2010, he met Atty.
Salvado through Atty. Samuel Divina (Atty. Divina), his childhood friend;
Let copies of this Decision be entered in the record of respondent as that Atty. Salvado introduced himself as a lawyer and a businessman
engaged in several businesses including but not limited to the lending
attorney and served on the IBP, as well as on the court administrator who business; that on the same occasion, Atty. Salvado enticed the
complainant to invest in his business with a guarantee that he would be
given a high interest rate of 5% to 6% every month; and that he was
shall circulate it to all courts for their information and guidance. assured of a profitable investment due by Atty. Salvado as the latter had
various clients and investors.
SO ORDERED.
Because of these representations coupled by the assurance of Atty.
Salvado that he would not place his reputation as a lawyer on the line,
complainant made an initial investment in his business. This initial
January 26, 2016 investment yielded an amount corresponding to the principal plus the
promised interest. On various dates from 2010 to 2011, complainant
claimed that he was again induced by Atty. Salvado to invest with promises
A.C. No. 10952
of high rates of return.
ENGEL PAUL ACA, Complainant,
As consideration for these investments, Atty. Salvado issued several post-
vs.
dated checks in the total amount of P6,107,000.00, representing the
ATTY. RONALDO P. SALVADO, Respondent.
principal amount plus interests. All checks were drawn from PSBank
Account number 040331-00087-9, fully described as follows:
DECISION

PER CURIAM: Check Number Date Issued Amount

0060144 August 14, 2011 P657 ,000.00

This refers to the October 11, 2014 Resolution1 of the Integrated Bar of the
Philippines Board of Governors (IBP-BOG) which adopted and approved 0060147 September 29, 2011 P 530,000.00
with modification the Report and Recommendation 2 of the Investigating
Commissioner suspending Atty. Ronaldo P. Salvado (Atty. Salvado) from 0060190 September 29, 2011 P60,000.00
the practice of law.
0060194 October 16, 2011 P90,000.00
The Complaint: 0060206 October 17, 2011 P2, 120,000.00

On May 30, 2012, Engel Paul Aca filed an administrative complaint3 for 0060191 October 29, 2011 P1,060,000.00
disbarment against Atty. Salvado for violation of Canon 1, Rule 1.01 4 and
0060195 November 16, 2011 P1,590,000.00
Canon 7, Rule 7.035 of the Code of Professional Responsibility (CPR).
Upon presentment, however, complainant was shocked to learn that the
aforementioned checks were dishonored as these were drawn from
insufficient funds or a closed account.
Complainant made several verbal and written demands upon Atty.
Salvado, who at first, openly communicated with him, assuring him that he
would not abscond from his obligations and that he was just having
difficulty liquidating his assets and collecting from his own creditors.
Complainant was even informed by Atty. Salvado that he owned real
properties that could serve as payment for his obligations. As time went
by, however, Atty. Salvado began to avoid complainant's calls and text
messages. Attempts to meet up with him through common friends also
proved futile. This prompted complainant to refer the matter to his lawyer
Atty. Divina, for appropriate legal action.
On December 26, 2011, Atty. Divina personally served the Notice of
Dishonor on Atty. Salvado, directing him to settle his total obligation in the
amount of P747,000.00, corresponding to the cash value of the first two
(2) PSBank checks, within seven (7) days from receipt of the said
notice.6 Nevertheless, Atty. Salvado refused to receive the said notice
when Atty. Divina's messenger attempted to serve it on him.
Sometime in April 2012, complainant yet again engaged the services of
Atty. Divina, who, with his filing clerk and the complainant's family, went
to Atty. Salvado's house to personally serve the demand letter. A certain
"Mark" who opened the gate told the filing clerk that Atty. Salvado was no
longer residing there and had been staying in the province already.
As they were about to leave, a red vehicle arrived bearing Atty. Salvado.
Complainant quickly alighted from his vehicle and confronted him as he
was about to enter the gate of the house. Obviously startled, Atty. Salvado
told him that he had not forgotten his debt and invited complainant to
enter the house so they could talk. Complainant refused the invitation and
instead told Atty. Salvado that they should talk inside his vehicle where his
companions were.
During this conversation, Atty. Salvado assured complainant that he was
working on "something" to pay his obligations. He still refused to
personally receive or, at the least, read the demand letter.
Despite his promises, Atty. Salvado failed to settle his obligations.
For complainant, Atty. Salvado's act of issuing worthless checks not only
constituted a violation of Batas Pambansa Bilang 22 (B.P. 22) or the "Anti-
Bouncing Checks Law," but also reflected his depraved character as a
lawyer. Atty. Salvado not only refused to comply with his obligation, but
also used his knowledge of the law to evade criminal prosecution. He had
obviously instructed his household staff to lie as to his whereabouts and to
reject any correspondence sent to him. This resort to deceitful ways
showed that Atty. Salvado was not fit to remain as a member of the Bar.
The Defense of the Respondent
On July 24, 2012, Atty. Salvado filed his Answer,7 denying that he told
complainant that he had previously entered into various government
contracts and that he was previously engaged in some other businesses
prior to engaging in the lending and rediscounting business. Atty. Salvado
asserted that he never enticed complainant to invest in his business, but it
was Atty. Divina's earnings of good interest that attracted him into making
an investment. He further stated that during their initial meeting, it was
complainant who inquired if he still needed additional investments; that it
was Atty. Divina who assured complainant of high returns; and that
complainant was fully aware that the money invested in his businesses
constituted a loan to his clients and/or borrowers. Thus, from time to time,
the return of investment and accrued interest when due – as reflected in
the maturity dates of the checks issued to complainant- could be delayed,
whenever Atty. Salvado' s clients requested for an extension or renewal of
their respective loans. In other words, the checks he issued were merely
intended as security or evidence of investment.
Atty. Salvado also claimed that, in the past, there were instances when he
would request complainant not to deposit a check knowing that it was not
backed up by sufficient funds. This arrangement had worked until the
dishonor of the checks, for which he readily offered his house and lot
located in Marikina City as collateral.
The Reply of Complainant
On August 30, 2012, complainant filed his Reply,8 pointing out that Atty.
Salvado did not deny receiving money from him by way of investment.
Thus, he must be deemed to have admitted that he had issued several
postdated checks which were eventually dishonored. Atty. Salvado 's claim
that it was complainant himself who prodded him about making
investments must be brushed aside for being self-serving and baseless.
Assuming arguendo, that complainant indeed made offers of investment,
Atty. Salvado should have easily refused knowing fully well that he could
not fund the checks that he would be issuing when they become due. If it
were true that the checks were issued for complainant's security, Atty.
Salvado could have drafted a document evidencing such agreement. His
failure to present such document, if one existed at all, only proved that the
subject checks were issued as payment for complainant's investment.9
Complainant also clarified that his complaint against Atty. Salvado was
never meant to harass him. Despite the dishonor of the checks, he still
tried to settle the dispute with Atty. Salvado who left him with no choice
after he refused to communicate with him properly.
Thereafter, the parties were required to file their respective mandatory
conference briefs and position papers.1âwphi1 Atty. Salvado insisted that
he had acted in all honesty and good faith in his dealings with the
complainant. He also emphasized that the title to his house and lot in
Greenheights Subdivision, Marikina City, had been transferred in the name
of complainant after he executed a deed of sale as an expression of his
"desire and willingness to settle whatever is due to the complainant."10
Report and Recommendation of Investigating Commissioner
On January 2, 2014, the Investigating Commissioner recommended that
Atty. Salvado be meted a penalty of suspension from the practice of law
for six ( 6) months for engaging in a conduct that adversely reflects on his
fitness to practice law and for behaving in a scandalous manner to the
discredit of the legal profession. Atty. Salvado's act of issuing checks
without sufficient funds to cover the same constituted willful dishonesty
and immoral conduct which undermine the public confidence in the legal
profession.
The IBP-BOG Resolution
On October 11, 2014, the IBP-BOG adopted and approved the
recommendation with modification as to the period of suspension. The
IBP-BOG increased the period of Atty. Salvado's suspension from six (6)
months to two (2) years.
Neither a motion for reconsideration before the IBP-BOG nor a petition for
review before this Court was filed. Nonetheless, the IBP elevated to this
Court the entire records of the case for appropriate action with the IBP
Resolution being merely recommendatory and, therefore, would not attain
finality, pursuant to par. (b), Section 12, Rule 139-B of the Rules of Court.11
The Court's Ruling
The parties gave conflicting versions of the controversy. Complainant,
claimed to have been lured by Atty. Salvado into investing in his businesses
with the promise of yielding high interests, which he believed because he
was a lawyer who was expected to protect his public image at all times.
Atty. Salvado, on the other hand, denied having enticed the complainant,
whom he claimed had invested by virtue of his own desire to gain profits.
He insisted that the checks that he issued in favor of complainant were in
the form of security or evidence of investment. It followed, according to
Atty. Salvado, that he must be considered to have never ensured the
payment of the checks upon maturity. Atty. Salvado strongly added that
the dishonor of the subject checks was "purely a result of his gullibility and
inadvertence, with the unfortunate result that he himself was a victim of
failed lending transactions xxx."12
The Court sustains the findings of the IBP-BOG and adopts its
recommendation in part.
First. A perusal of the records reveals that complainant's version deserves
credence, not only due to the unambiguous manner by which the narrative
of events was laid down, but also by the coherent reasoning the narrative
has employed. The public is, indeed, inclined to rely on representations
made by lawyers. As a man of law, a lawyer is necessarily a leader of the
community, looked up to as a model citizen.13 A man, learned in the law
like Atty. Salvado, is expected to make truthful representations when
dealing with persons, clients or otherwise. For the Court, and as the IBP-
BOG had observed, complainant's being beguiled to part with his money
and believe Atty. Salvado as a lawyer and businessman was typical human
behavior worthy of belief. The Court finds it hard to believe that a person
like the complainant would not find the profession of the person on whose
businesses he would invest as important to consider. Simply put, Atty.
Salvado's stature as a member of the Bar had, in one way or another,
influenced complainant's decision to invest.
Second. It must be pointed out that the denials proffered by Atty. Salvado
cannot belie the dishonor of the checks. His strained explanation that the
checks were mere securities cannot be countenanced. Of all people,
lawyers are expected to fully comprehend the legal import of bouncing
checks. In Lozano v. Martinez,14 the Court ruled that the gravamen of the
offense punished by B.P. 22 is the act of making and issuing a worthless
check; that is, a check that is dishonored upon its presentation for
payment. The thrust of the law is to prohibit, under pain of penal
sanctions, the making and circulation of worthless checks. Because of its
deleterious effects on the public interest, the practice is proscribed by the
law.
Hence, the excuse of "gullibility and inadvertence" deserves scant
consideration. Surely, Atty. Salvado is aware that promoting obedience to
the Constitution and the laws of the land is the primary obligation of
lawyers. When he issued the worthless checks, he discredited the legal
profession and created the public impression that laws were mere tools of
convenience that could be used, bended and abused to satisfy personal
whims and desires. In Lao v. Medel,15 the Court wrote that the issuance of
worthless checks constituted gross misconduct, and put the erring lawyer's
moral character in serious doubt, though it was not related to his
professional duties as a member of the Bar. Covered by this dictum is Atty.
Salvado's business relationship with complainant. His issuance of the
subject checks display his doubtful fitness as an officer of the court.
Clearly, he violated Rule 1.01 and Rule 7.03 of the CPR.
Third. Parenthetically, the Court cannot overlook Atty. Salvado's deceiving
attempts to evade payment of his obligations.1âwphi1 Instead of
displaying a committed attitude to his creditor, Atty. Salvado refused to
answer complainant's demands. He even tried to make the complainant
believe that he was no longer residing at his given address. These acts
demonstrate lack of moral character to satisfy the responsibilities and
duties imposed on lawyers as professionals and as officers of the court.
The subsequent offers he had made and the eventual sale of his properties
to the complainant, unfortunately cannot overturn his acts unbecoming of
a member of the Bar.
Fourth. The Court need not elaborate on the correctness of the
Investigating Commissioner's reliance on jurisprudence stating that
administrative cases against lawyers belong to a class of their own and may
proceed independently of civil and criminal cases, including violations of
B.P. 22.
Accordingly, the only issue in disciplinary proceedings against lawyers is
the respondent's fitness to remain as a member of the Bar. The Court's
findings have no material bearing on other judicial actions which the
parties may choose to file against each other.16
All told, the Court finds that Atty. Salvado's reprehensible conduct
warrants a penalty commensurate to his violation of the CPR and the
Lawyer's Oath.
WHEREFORE, the Court finds Atty. Ronaldo P. Salvado GUILTY of violating
Rule 1.01, Canon 1 and Rule 7 .03 of the Code of Professional
Responsibility. Accordingly, the Court SUSPENDS him from the practice of
law for a period of two (2) years.
Let copies of this decision be furnished the Office of the Bar Confidant, the
Integrated Bar of the Philippines, and all courts all over the country. Let a
copy of this decision be attached to the personal records of the The notice of the said conference addressed to complainant was returned
respondent. with the notation "unknown at the given address." No new address was
provided by the complainant. Both parties wererequired to submit their
SO ORDERED. respective position papers. For this purpose, Atty. Francisco adopted his
Answer. The Antecedents

Mario Crespo, otherwise known as Mark Jimenez (Jimenez), filed a

Republic of the Philippines complaint for estafa against complainant, her sister Rosemarie Flaminiano,
SUPREME COURT Marcel Crespo, Geraldine Antonio, Brenda Heffron, Magdalena Cunanan,
Manila and Isabel Gonzalez.5 The said complaint was docketed as IS No. 074314
with the Office of the City Prosecutor of Makati City. Jimenez alleged that
he was the true and beneficial owner of the shares of stock in Clarion
SECOND DIVISION
Realty and Development Corporation (Clarion), which was incorporated
specifically for the purpose of purchasing a residential house located in
A.C. No. 10548 December 10, 2014 Forbes Park, Makati City (Forbes property). The incorporators and original
stockholders of Clarion were as follows:
CAROLINE CASTANEDA JIMENEZ, Complainant,
vs.
ATTY. EDGAR B. FRANCISCO, Respondent. Thomas K. Chua - ₱500,000.00

Teresita C. Alsua - ₱500,000.00

DECISION
MENDOZA, J.:
This refers to the Resolutions of the Integrated Bar of the Philippines,
Board of Governors (IBP-BOG), dated January 3, 20131 and March 22,
2014,2 adopting and approving the findings of the Commission on Bar
Discipline (CBD) which found Atty. Edgar 8. Francisco (Alty Francisco)
administratively liable for multiple violations of the Code of Professional
Responsibility (CPR) and recommended the penalty of suspension of one
(1) year from the practice of law.
On September 6, 2007, the CBD received a complaint, dated July 14,
2007,3 filed by Caroline Castañeda Jimenez (complainant)against Atty.
Francisco for multiple violations of the CPR. On October 24, 2007, Atty.
Francisco filed his Answer.4 On June 26, 2009, the mandatory conference
was held and terminated. Only the counsel for Atty. Francisco appeared.
Myla Villanueva - ₱249,998.00
Edgar B. Francisco - ₱1.00
Soledad Gamat - ₱1.00
Simultaneous with the drafting of Clarion’s Articles of Incorporation, the
above-named stockholders, except for Myla Villanueva (Myla), executed a
deed of assignment of their respective shares in favor of complainant, who
was then Jimenez’s common-law partner.Clarion’s total capitalization was
only ₱5,000,000.00. Thus, in order to achieve its purpose of purchasing the
Forbes property, Clarion simulated a loan from the complainant in the
amount of ₱80,750,000.00. Thereafter, Clarion purchased the Forbes
property in the amount of ₱117,000,000.00 from Gerardo Contreras. To
effect the sale, Myla handed a check in the said amount which was funded
entirely by Jimenez. The sale, however, was undervalued. In the deed of
sale, it was made to appear that the Forbes property was purchased for
₱78,000,000.00 only. Further, the money used as the purchase price was
not reflected in the books of Clarion.
On July 19, 2001, Thomas Chua and Teresita Alsua assigned their shares in
Clarion to Jimenez by virtue of a deed of trust. On the other hand, Myla’s
249,997 shares were transferred to complainant based on a deed of
assignment. The remaining one (1) share was transferred to Ma. Carolina
C. Crespo. These transactions appeared in Clarion’s General Information
Sheet (GIS)filed with the Securities and Exchange Commission (SEC).
Resultantly, the subscribed shares of Clarion were as follows:
Mark Jimenez - P 500,000.00
Caroline Jimenez - P 749,997.00
Ma. Carolina C. Crespo - P 1.00
Edgar B. Francisco - P 1.00
Soledad Gamat - P 1.00
On November 5, 2002, Jimenez transferred all his shares to complainant by
another deed of assignment, making her the holder of Clarion shares
amounting to ₱1,249,997.00.
According to Jimenez’s complaint, while he was in prison in the United
States in 2004, he learned from Atty. Francisco that his son, Marcel Crespo
(Marcel), approached the complainant and threatened her, claiming that
the United States Internal Revenue Service (IRS)was about to go after their
properties. Marcel succeeded in persuading complainant to transfer her
nominal shares in Clarion to Geraldine Antonio, through another deed of
assignment. Again, this was reflected in Clarion’s GIS for the year 2004.
Thereafter, Jimenez was informed by Atty. Francisco that, through
fraudulent means, complainant and her co-respondents in the estafa case,
put the Forbes property for sale sometimein August 2004. The said
property was eventually sold to Philmetro Southwest Enterprise Inc.
(Philmetro)for the amount of ₱118,000,000.00 without Jimenez’s
knowledge. This sale was again undervalued at ₱78,000.000.00 per the
deed of sale. Atty. Francisco relayed to Jimenez that he was the one who
received the payment for the sale of the Forbes property and that he
handed all the proceeds thereof to Rosemarie Flaminiano in the presence
of complainant.
Jimenez’s complaint for estafa was based on complainant’s alleged
participation in the fraudulent means in selling the Forbes property which
was acquired by Clarion with Jimenez’s money. Complainant was duty
bound to remit all the proceeds of the sale to Jimenez as the true and
beneficial owner. Complainant and her co-respondents, however,
misappropriated and converted the fundsfor their personal use and
benefit.
In support of Jimenez’s complaint for estafa, Atty. Francisco executed an
affidavit reiterating its factual averments.6A perusal of this affidavit
likewise would show the following claims and admissions, among other
things, of Atty. Francisco:
1. Sometime in August 2004, complainant called him, asking for
assistance in the documentation of the sale of the Forbes
property owned by Clarion. Atty. Francisco asked her if she had
secured permission from Mark Jimenez and complainant
answered in the affirmative.
2. The Board of Directors of Clarion issued a resolution authorizing
him to negotiate the sale of the property.
3. For purposes of the sale, he opened an account with Security
Bank, San Francisco Del Monte branch. When the cash payment
was deposited, he withdrew the amount and handed the same to
Rosemarie Flaminiano in the presence of complainant.
4. All transfers of shares were caused without any consideration.
The transfer taxes, however, were paid.
 5. When Mark Jimenez returned to the Philippines, he was able to
confirm that the sale of the Forbes property was without his
knowledge and approval. The proceeds of the sale had already
been farmed out to different corporations established by
complainant and her sister.
6. The frequent changes in stockholdings were premeditated in
order to steal the money of Mark Jimenez.
The Complaint
Complainant was shocked upon reading the allegations in the complaint
for estafa filed by Jimenez against her. She felt even more betrayed when
she read the affidavit of Atty. Francisco, on whom she relied as her
personal lawyer and Clarion’s corporate counsel and secretary of Clarion.
This prompted her to file a disciplinary case against Atty. Francisco for
representing conflicting interests. According to her, she usually conferred
with Atty. Francisco regarding the legal implications of Clarion’s
transactions. More significantly, the principal documents relative to the
sale and transfer of Clarion’s property were all prepared and drafted by
Atty. Francisco or the members of his law office. 7 Atty. Francisco was the
one who actively participated in the transactions involving the sale of the
Forbes property. Without admitting the truth of the allegations in his
affidavit, complainant argued that its execution clearly betrayed the trust
and confidence she reposed on him as a lawyer. For this reason,
complainant prayed for the disbarment of Atty. Francisco.
The Respondent’s Position
In his Answer,8 Atty. Francisco replied that Jimenez initially engaged his
services in 1998 for the incorporation of Clarion for the purpose of
purchasing a residential house in Forbes Park, where he intended to live
with his long-time partner, the complainant; that the original incorporators
and stockholders of Clarion held their respective shares in trust for
Jimenez; that the subsequent changes in the ownership of Clarion
shareholdings were also pursuant to Jimenez’s orders; and that as the
corporate secretary and legal counsel of Clarion, he prepared all the legal
documentation togive effect to the said transfers and, ultimately, to the
purchase of the Forbes property.
Atty. Francisco further stated that sometime in 2004, Jimenez was
imprisoned in the United States for excessive contributions to the
Democratic Party; that during this time, Jimenez’s son, Marcel, and the
complainant, asked him again to changethe ownership of Clarion shares in
order to avoid the attachment of Jimenez’s properties in a tax evasion
case; that he acceded to the request on the belief that this was in
accordance with Jimenez’s wishes; and that as a result, almost 100% of
Clarion’s ownership was transferred in the name of Geraldine Antonio.
Atty. Francisco also claimed that, thereafter, complainant tasked him to
talk to prospective buyers and to negotiate the sale of the Forbes property
until it was sold for ₱118,000,000.00; that Marcel and complainant led him
to believe that Jimenez had knowledge of the sale as they were in constant
communication with him; that all these representations, however, turned
out to be false when Jimenez returned tothe Philippines and discovered
that the proceeds of the sale were coursed through other corporations set
up by complainant and her sister; that Jimenez likewise learned of the
successive sale of his other properties, including Meridian Telekoms Inc.,
by the members of his family; and that this led to the filing of the estafa
case against the complainant and the others. As a witness to the fraud
committed against Jimenez, Atty. Francisco executed the affidavit
narrating the facts and circumstances surrounding the said transactions.
Atty. Francisco mainly argued thathe violated neither the rule on
disclosures of privileged communication nor the proscription against
representing conflicting interests, on the ground that complainant was not
his client. He was the lawyer of Jimenez and the legal counsel of Clarion,
but never of the complainant. He might have assisted her in some matters,
but these were all under the notion that Jimenez had given him authority
to do so. Further, though he acted as legal counsel for Clarion, no attorney-
client relationship between him and complainant was formed, as a
corporation has a separate and distinct personality from its shareholders.
While he admitted that the legal documentation for the transfer of shares
and the sale of the Forbes property were prepared by him and notarized
by the members of his law firm, he averred that these acts were
performed in his capacity as the corporate secretary and legal counsel
ofClarion, and not as a lawyer of complainant. Therefore, he served no
conflicting interests because it was not a "former client" and a
"subsequent client" who were the opposing parties in litigation.
He opined that assuming that complainant was indeed his client, the rule
on privileged communication does not apply to his case. Here, complainant
failed to allege, muchless prove, the requisites for the application of the
privilege. When Atty. Francisco denied being her lawyer, the complainant
should have established, by clear and convincing evidence, that a lawyer-
client relationship indeed existed between them. Complainant failed to do
this.
Arguing that the execution of his affidavit in the estafa case was but a
truthful narration of facts by a witness, Atty. Francisco cited Gonzaga v.
Cañete,9 where the Court ruled that "the fact that one of the witnesses for
the defendant had been formerly the lawyer for the defendant in this suit
was no ground for rejecting his testimony." In this case, he merely attested
to the fraudulent acts of complainant, in the course of which, he defended
and served Jimenez as a client. This was likewise pursuant to the rule that
unlawful and illegal motives and purposes were not covered by the
privilege. It was just unfortunate that he fell for the ploy of complainant.
The Findings of the Investigating Commissioner
In the Commissioner’s Report,10 dated November 7, 2011, the Investigating
Commissioner, Atty. Jose I. dela Rama, Jr. (Investigating
Commissioner),found Atty. Francisco guilty of violations of the CPR and
recommended that he be suspended for one (1) year from the practice of
law. Initially, the Investigating Commissioner noted that the subsequent
affidavit of desistance executed by Jimenez in the estafa case did not affect
the investigation conducted by the CBD as it was not an ordinary court
which accepted compromises or withdrawals of cases. After weighing on
the claims of the parties, the Investigating Commissioner concluded that
nothing in the records would show that a lawyer-client relationship existed
between Atty. Francisco and Jimenez. 11 The circumstances would show
that Atty. Francisco was an original incorporator and shareholder of
Clarion. He was also the legal counsel and corporate secretary of the said
corporation, the articles of incorporation of which did not include Jimenez
as an original incorporator. He became a stockholder only in 2001, when
Jimenez acquired shares from Thomas Chua and Teresita Alsua. Jimenez’s
participation in Clarion affairs again stopped when he assigned the entirety
of his shares in favor of complainant.
Granting that Jimenez really owned 100% of Clarion as alluded to by Atty.
Francisco, the report stated that it would appear that the latter permitted
misrepresentations as to Clarion’s ownership to be reported to the SEC
through its GIS. The Investigating Commissioner also pointed out Atty.
Francisco’s clear admission that the transfer of shares within Clarion were
"without any consideration," ran counter to the deeds of assignment that
he again admittedly executed as corporate counsel. Worse, Atty. Francisco
admitted to have simulated the loan and undervalued the consideration of
the effected sale of the Forbes property, which displayed his unlawful,
dishonest, immoral, and deceitful conduct in violation of Canon 1 of the
CPR. Further, when he executed the affidavit containing allegations against
the interest of Clarion and complainant, the Investigating Commissioner
held that Atty. Francisco violated the rule on privileged communication
and engaged in an act that constituted representation of conflicting
interests in violation of Canons 15 and 21 of the CPR.
In its January 3, 2013 Resolution,12 the IBP-BOG adopted and approved, in
toto, the findings and recommendation of the CBD against Atty. Francisco.
The respondent received a copy of the said resolution on March 26, 2013
and moved for its reconsideration.13
Atty. Francisco appealed to the compassion of the IBP-BOG, reasoning out
that the penalty of suspension of one (1) year is too severe considering
that in his more than three decades of practice, he had never been
involved in any act that would warrant the imposition of disciplinary action
upon him. It was only in 2007, when his client, Jimenez, experienced a
difficult crisis involving his children and common-law partner that he
experienced a major upheaval in his professional life. He apologized for his No petition for review was filed with the Court.
not being too circumspect in dealing with the relatives of Jimenez.
The Court’s Ruling
As to the charges against him, Atty. Francisco reiterated that his
participation in the execution of the documents pertaining to the sale of Violations of Canons 1 and 10
the Forbes property were all connected to his capacity as Clarion’s of the CPR and the Lawyer’s Oath
corporate secretary and legal counsel, not to mention his ties with his
client and friend, Jimenez. He admitted that he owed fidelity to Clarion and Canon 1 and Rule 1.01 of the CPR provide:
Jimenez, but denied that this duty extended to the incorporators and
shareholders of Clarion. Thus, when complainant sought advice in her
CANON 1 – A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE
capacity as a shareholder in Clarion, no fiduciary duty arose on his part. In
LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND LEGAL
his own words, Atty. Francisco insisted that "Carol is not Clarion and vice
PROCESSES.
versa."14
Rule 1.0 – A lawyer shall not engage in unlawful, dishonest, immoral or
Attached to Atty. Francisco’s motion for reconsideration was an affidavit
deceitful conduct.
executed by Jimenez, stating that he had retained the legal services of
Atty. Francisco since 1999. Espousing Atty. Francisco’s defenses, Jimenez
Canon 1 clearly mandates the obedience of every lawyer to laws and legal
asserted that Atty. Francisco’s law firm was in charge of all the companies
processes. To the best of his ability, a lawyer is expected to respect and
he owned in the Philippines.He directed Atty. Francisco to execute all the
abide by the law and, thus, avoid any act or omission that is contrary
documentation to show his ownership of these companies, including
thereto. A lawyer’s personal deference to the law not only speaks of his
Clarion. These documents were in the possession of complainant for
character but it also inspires respect and obedience tothe law, on the part
safekeeping. When Jimenez ran for Congress in 2001,Atty. Francisco
of the public.
personally assisted him in the filing ofhis certificate of candidacy and the
proceedings before the electoral tribunals. While he was in prison in the
United States, it was Atty. Francisco who visited and told him that his Rule 1.0, on the other hand, states the norm of conduct to be observed by
children, Myla and Marcel, were then facilitating the sale of one of his all lawyers.
companies, Meridian Telekoms, Inc., without his knowledge. He asked
Atty. Francisco to keep quiet about his children’s betrayal and to wait until Any act or omission that is contraryto, or prohibited or unauthorized by, or
he could go home. When he filed the criminal cases against his children in defiance of, disobedient to, or disregards the law is "unlawful."
and complainant, the latter even filed a frivolous kidnapping case against "Unlawful" conduct does not necessarily imply the element of criminality
Atty. Francisco. According to Jimenez, the people who committed crimes although the concept is broad enough to include such element. 16 To be
against him were now exhausting all possible means to keep Atty. "dishonest" means the disposition to lie, cheat, deceive, defraud or betray;
Francisco silent and to prevent the latter from performing his duties as a be unworthy; lacking in integrity, honesty, probity, integrity in principle,
lawyer. fairness and straight forwardness17 while conduct that is "deceitful" means
the proclivity for fraudulent and deceptive misrepresentation, artifice or
In its March 22, 2014 Resolution,15 the IBP-BOG denied the respondent’s device that is used upon another who is ignorant of the true facts, to the
motion for reconsideration. prejudice and damage of the party imposed upon.18
Membership in the legal profession is bestowed upon individuals who are
not only learned in law, but also known to possess good moral character.
Lawyers should act and comport themselves with honesty and integrity in
a manner beyond reproach, inorder to promote the public’s faith in the
legal profession.19 "To say that lawyers must at all times uphold and
respect the law is to state the obvious, but such statement can never be
over emphasized. Considering that, of all classes and professions, [lawyers
are] most sacredly bound to uphold the law, it is imperative that they live
by the law."20
When Atty. Francisco was admitted to the Bar, he also took an oath to
"obey the laws," "do no falsehood," and conduct himself as a lawyer
according to the best of his knowledge and discretion. 21
In the facts obtaining in this case, Atty. Francisco clearly violated the
canons and his sworn duty. He is guilty of engaging in dishonest and
deceitful conduct when he admitted to having allowed his corporate client,
Clarion, to actively misrepresent to the SEC, the significant matters
regarding its corporate purpose and subsequently, its corporate
shareholdings. In the documents submitted to the SEC, such as the deeds
of assignment and the GIS, Atty. Francisco, in his professional capacity,
feigned the validity of these transfers of shares, making it appear that
these were done for consideration when, in fact, the said transactions
were fictitious, albeit upon the alleged orders of Jimenez. The Investigating
Commissioner was correct in pointing out that this ran counter to the
deeds of assignment which he executed as corporate counsel. In his long
practice as corporate counsel, it is indeed safe to assume that Atty.
Francisco is knowledgeable in the law on contracts, corporation law and
the rules enforced by the SEC. As corporate secretary of Clarion, it was his
duty and obligation to register valid transfers of stocks. Nonetheless, he
chose to advance the interests of his clientele with patent disregard of his
duties as a lawyer. Worse, Atty. Francisco admitted to have simulated the
loan entered into by Clarion and to have undervalued the consideration of
the effected sale of the Forbes property. He permitted this fraudulent ruse
to cheat the government of taxes. Unquestionably, therefore, Atty.
Francisco participated in a series of grave legal infractions and was content
to have granted the requests of the persons involved.
Despite assertions that these were in accordance to Jimenez’s wishes, or
pursuant to complainant’s misrepresentations, the Court cannot turn a
blind eye on Atty. Francisco’s act of drafting, or at the very least,
permitting untruthful statements to be embodied in public documents. If
the Court allows this highly irregular practice for the specious reason that
lawyers are constrained to obey their clients’ flawed scheming and
machinations, the Court would, in effect, sanction wrongdoing and falsity.
This would undermine the role of lawyers as officers of the court.
Time and again, the Court has reminded lawyers that their support for the
cause of their clients should never be attained at the expense of truth and
justice. While a lawyer owes absolute fidelity to the cause of his client, full
devotion to his genuine interest, and warm zeal in the maintenance and
defense of his rights, as well as the exertion of his utmost learning and
ability, he must do so only within the bounds of the law. It needs to be
emphasized that the lawyer's fidelity to his client must not be pursued at
the expense of truth and justice, and mustbe held within the bounds of
reason and common sense. His responsibility to protect and advance the
interests of his client does not warranta course of action propelled by ill
motives and malicious intentions.22
In the same vein, Atty. Francisco’s admissions show that he lacks candor
regarding his dealings. Canon 10 of the CPR provides that, "[a] lawyer owes
candor, fairness and good faith to the court." Corollary thereto, Rule 10.0
of the CPR provides that "a lawyer shall do no falsehood, nor consent to
the doing of any in Court, nor shall he mislead or allow the Court to be
misled by an artifice." Lawyers are officers of the court, called upon to
assist in the administration of justice. They act as vanguards of our legal
system, protecting and upholding truth and the rule oflaw. They are
expected to act with honesty in all their dealings, especially with the
court.23
From the foregoing, Atty. Francisco clearly violated his duties as a lawyer
embodied in the CPR, namely, to avoid dishonest and deceitful conduct,
(Rule 1.01, Canon 1) and to actwith candor, fairness and good faith (Rule
10.01, Canon 10). Also, Atty. Franciso desecrated his solemn oath not to do
any falsehood nor consent to the doing of the same.
Rule on Conflicting Interests and
Disclosure of Privileged
Communication
With respect to Atty. Francisco’s alleged representation of conflicting
interests and disclosure of privileged communication, the Court deviates
from the findings of the IBP-BOG.
Rule 15.03, Canon 15 of the CPR provides that, "[a] lawyer shall not
represent conflicting interests except by written consent of all concerned
given after a full disclosure of the facts."24 "The relationship between a
lawyer and his/her client should ideallybe imbued with the highest level of
trust and confidence. This is the standard of confidentiality that must
prevail to promote a full disclosure of the client’s most confidential
information to his/her lawyer for an unhampered exchange of information
between them. Needless to state, a client can only entrust confidential
information to his/her lawyer based on an expectation from the lawyer of
utmost secrecy and discretion; the lawyer, for his part, is duty-bound to
observe candor, fairness and loyalty in all his dealings and transactions
withthe client. Part of the lawyer’s duty in this regard isto avoid
representing conflicting interests…"25 Thus, even if lucrative fees offered
by prospective clients are at stake, a lawyer must decline professional
employment if the same would trigger a violation of the prohibition against
conflict of interest.
In Quiambao v. Bamba,26 the Court discussed the application of the rule on
conflict of interest in this wise:
In broad terms, lawyers are deemed to represent conflicting interests
when, in behalf of one client, it is their duty to contend for that which duty
to another client requires them to oppose. Developments in jurisprudence
have particularized various tests to determine whether a lawyer’s conduct
lies within this proscription. One test is whether a lawyer is duty-bound to
fight for an issue or claim in behalf of one client and, at the same time, to
oppose that claim for the other client. Thus, if a lawyer’s argument for one
client has to be opposed by that same lawyer in arguing for the other
client, there is a violation of the rule.
Another test of inconsistency of interests is whether the acceptance of a
new relation would prevent the full discharge of the lawyer’s duty of
undivided fidelity and loyalty to the client or invite suspicion of
unfaithfulness or double-dealing in the performance of that duty. Still
another test is whether the lawyer would be called upon in the new
relation to use against a former client any confidential information
acquired through their connection or previous employment.
The proscription against representation of conflicting interest applies to a
situation where the opposing parties are present clients in the same
actionor in an unrelated action. It is of no moment that the lawyer would
not be called upon to contend for one client that which the lawyer has to
oppose for the other client, or that there would be no occasion to use the
confidential information acquired from one to the disadvantage of the
other as the two actions are wholly unrelated. It is enough that the
opposing parties in one case, one of whom would lose the suit, are present
clients and the nature or conditions of the lawyer’s respective retainers
with each of them would affect the performance of the duty of undivided
fidelity to both clients.
From the foregoing, it is obvious that the rule on conflict of interests
presupposes a lawyer-client relationship. The purpose of the rule is
precisely to protect the fiduciary nature of the ties between an attorney
and his client. Conversely, a lawyer may not be precluded from accepting
and representing other clients on the ground of conflict of interests, if the
lawyer-client relationship does not exist in favor of a party in the first
place.
In determining whether or not Atty. Francisco violated the rule on conflict
of interests, a scrutiny of the parties’ submissions with the IBP reveals that
the complainant failed to establish that she was a client of Atty. Francisco.
First, complainant’s claim of being Atty. Francisco’s client remains
unsubstantiated, considering its detailed refutation. All that the complaint
alleged was that Atty. Francisco was Clarion’s legal counsel and that
complainant sought advice and requested documentation of several
transfers of shares and the sale of the Forbes property. This was only
successful in showing that Atty. Francisco, indeed, drafted the documents
pertaining to the transaction and that he was retained as legal counsel of
Clarion. There was no detailed explanation as to how she supposedly
engaged the services of Atty. Francisco as her personal counsel and as to
what and how she communicated with the latter anent the dealings she
had entered into. With the complaint lacking in this regard, the unrebutted
answer made by Atty. Francisco, accompanied with a detailed narrative of
his engagement as counsel of Jimenez and Clarion, would have to prevail.
Second, there is a stark disparity inthe amount of narrative details
presented by the parties. Atty. Francisco’s claim thathe was the counsel of
Clarion and Jimenez, and not of the complainant, was clearly established in
a sworn statement executed by Jimenez himself. Complainant’s evidence
pales in comparison with her claims of being the client of Atty. Francisco
couched in general terms that lacked particularity of circumstances.
Third, noteworthy is the fact that complainant opted not to file a reply to
Atty. Francisco’s answer. This could have given her opportunity to present
evidence showing their professional relationship. She also failed to appear
during the mandatory conference with the IBP-CBD without even updating
her residential address on record. Her participation in the investigation of
the case apparently ended at its filing.
In suspension or disbarment proceedings, lawyers enjoy the presumption
of innocence, and the burden of proof rests upon the complainant to
clearly prove the allegations in the complaint by preponderant evidence.
Preponderance of evidence means that the evidence adduced by one side
is, as a whole, superior to or has greater weight than that of the other. It
means evidence which is more convincing to the court as worthy of belief
than that which is offered in opposition thereto. Under Section 1 of Rule
133, in determining whether or not there is preponderance of evidence,
the court may consider the following: (a) all the facts and circumstances of
the case; (b) the witnesses’ manner of testifying, their intelligence, their
means and opportunity of knowing the facts to which they are testifying,
the nature of the facts towhich they testify, the probability or
improbability of their testimony; (c) the witnesses’ interest or want of
interest, and also their personal credibility so far as the same may
ultimately appear in the trial; and (d) the number of witnesses, although it
does not mean that preponderance is necessarily with the greater
number.27
Markedly, Atty. Francisco could have prevented his entanglement with this
fiasco among the members of Jimenez’s family by taking an upfront and
candid stance in dealing with Jimenez’s children and complainant. He could
have been staunch in reminding the latter that his tasks were performed in
his capacity as legal counsel for Clarion and Jimenez. Be that as it may,
Atty. Francisco’s indiscretion does not detract the Court from finding that
the totality of evidence presented by the complainant miserably failed to
discharge the burden of proving that Atty. Francisco was her lawyer. At
most, he served as the legal counsel of Clarion and, based on the
affirmation presented, of Jimenez. Suffice it to say, complainant failed to
establish that Atty. Francisco committed a violation of the rule on conflict
of interests.
Consequently, the rule on lawyer-client privilege does not apply. In
Mercado v. Vitriolo,28 the Court elucidated on the factors essential to
establish the existence of the said privilege, viz:
In fine, the factors are as follows:
(1) There exists an attorney-client relationship, or a prospective attorney-
client relationship, and it is by reason of this relationship that the client
made the communication.
Matters disclosed by a prospective client to a lawyer are protected by the
rule on privileged communication even if the prospective client does not
thereafter retain the lawyer or the latter declines the employment. The
reason for this is to make the prospective client free to discuss whatever
he wishes with the lawyer without fear that what he tells the lawyer will be
divulged or used against him, and for the lawyer to be equally free to
obtain information from the prospective client. xxx
(2) The client made the communication in confidence.
The mere relation of attorney and client does not raise a presumption of
confidentiality. The client must intend the communication to be
confidential.
A confidential communication refers to information transmitted by
voluntary act of disclosure between attorney and client in confidence and
by means which, so far as the client is aware, discloses the information to
no third person other than one reasonably necessary for the transmission
of the information or the accomplishment of the purpose for which it was
given.
Our jurisprudence on the matter rests on quiescent ground. Thus, a
compromise agreement prepared by a lawyer pursuant to the instruction
of his client and delivered to the opposing party, an offer and counter-offer
for settlement, or a document given by a client to his counsel not in his
professional capacity, are not privileged communications, the element of
confidentiality not being present.
(3) The legal advice must be sought from the attorney in his professional
capacity.
The communication made by a client to his attorney must not be intended
for mere information, but for the purpose of seeking legal advice from his
attorney as to his rights or obligations. The communication must have
been transmitted by a client to his attorney for the purpose of seeking
legal advice.
If the client seeks an accounting service, or business or personal assistance,
and not legal advice, the privilege does not attach to a communication
disclosed for such purpose.
[Emphases supplied]
Considering these factors in the case at bench, the Court holds that the
evidence on record fails to demonstrate the claims of complainant. As
discussed, the complainant failed to establish the professional relationship
between her and Atty. Francisco. The records are further bereft of any
indication that the "advice" regarding the sale of the Forbes property was
given to Atty. Francisco in confidence. Neither was there a demonstration
of what she had communicated to Atty. Francisco nor a recital of
circumstances under which the confidential communication was relayed.
All that complaint alleged in her complainant was that "she sought legal
advice from respondent in various occasions."29 Considering that
complainant failed to attend the hearings at the IBP, there was no
testimony as to the specific confidential information allegedly divulged by
Atty. Francisco without her consent. It is, therefore, difficult, if not
impossible, to determine if there was any violation of the rule on privileged
communication. As held in Mercado, such confidential information is a
crucial link in establishing a breach of the rule on privileged
communication between attorney and client. It is not enough to merely
assert the attorney-client privilege.30 It cannot be gainsaid then that
complainant, who has the burden of proving that the privilege applies,
failed in this regard.
The Penalty
A member of the Bar may be penalized, even disbarred or suspended from
his office as an attorney, for violating of the lawyer’s oath and/or for
breaching the ethics of the legal profession as embodied in the CPR, 31 for
the practice of law is a profession, a form of public trust, the performance
of which is entrusted to those who are qualified and who possess good
moral character.32 The appropriate penalty on an errant lawyer depends
on the exercise of sound judicial discretion based on the surrounding
facts.33
Under Section 27, Rule 138 of the Revised Rules of Court, a member of the
Bar may be disbarred or suspended on any of the following grounds: (1)
deceit; (2) malpractice or other gross misconduct in office; (3) grossly
immoral conduct; (4) conviction of a crime involving moral turpitude; (5)
violation of the lawyer's oath; (6) willful disobedience of any lawful order
of a superior court; and (7) willful appearance as an attorney for a party
without authority. A lawyer may be disbarred or suspended for
misconduct, whether in his professional or private capacity, which shows
him to be wanting in moral character, honesty, probity and good
demeanor, or unworthy to continue as an officer of the court.
While the Court finds no violation of the rule on conflict of interests and
disclosure of privileged communication, the acts of Atty. Francisco, in
actively and passively allowing Clarion tomake untruthful representations
to the SEC and in other public documents, still constitute malpractice and
gross misconduct in his office as attorney, for which a suspension from the
practice of law for six (6) months is warranted.
WHEREFORE, the Court finds Atty. Edgar B. Francisco GUILTY of violation of
Canons 1 and 10 of the Code of Professional Responsibility for which he is
SUSPENDED from the practice of law for a period of six (6) months,
effective upon receipt of this Decision, with a STERN WARNING that a
commission of the same or similar offense in the future will result in the
imposition of a more severe penalty.
Let a copy of this Decision be entered into the records of Atty. Edgar B.
Francisco and furnished to the Office of the Clerk of Court, the Office of the
Bar Confidant, the Integrated Bar of the Philippines, and all courts in the
Philippines, for their information and guidance.
Atty. Francisco is DIRECTED to inform the Court of the date of his receipt of
this Decision so that the Court can determine the reckoning point when his
suspension shall take effect.
SO ORDERED.
JOSE CATRAL MENDOZA
Associate Justice
EN BANC
A.C. No. 10579, December 10, 2014
ERLINDA FOSTER, Complainant, v. ATTY. JAIME V. AGTANG, Respondent.
DECISION
PER CURIAM:
This refers to the Resolution1 of the Board of Governors (BOG), Integrated
Bar of the Philippines (IBP), dated March 23, 2014, affirming with
modification the findings of the Investigating Commissioner, who
recommended the suspension of respondent Atty. Jaime V. Agtang
(respondent) from the practice of law for one (1) year for ethical
impropriety and ordered the payment of his unpaid obligations to
complainant.
From the records, it appears that the IBP, thru its Commission on Bar
Discipline (CBD), received a complaint2, dated May 31, 2011, filed by
Erlinda Foster (complainant) against respondent for “unlawful, dishonest,
immoral and deceitful”3 acts as a lawyer.
In its July 1, 2011 Order,4 the IBP-CBD directed respondent to file his
Answer within 15 days from receipt of the order. Respondent failed to do
so and complainant sent a query as to the status of her complaint. On
October 10, 2011, the Investigating Commissioner issued the
Order5 setting the case for mandatory conference/hearing on November
16, 2011. It was only on November 11, 2011, or five (5) days before the
scheduled conference when respondent filed his verified Answer. 6
During the conference, only the complainant together with her husband
appeared. She submitted a set of documents contained in a folder, copies
of which were furnished the respondent. The Investigating
Commissioner7 indicated that the said documents would be reviewed and
the parties would be informed if there was a need for clarificatory
questioning; otherwise, the case would be submitted for resolution based
on the documents on file. The Minutes8 of the mandatory conference
showed that respondent arrived at 11:10 o’clock in the morning or after
the proceeding was terminated.
On December 12, 2011, the complainant filed her Reply to respondent’s
Answer.
On April 18, 2012, complainant submitted copies of the January 24, 2012
Decisions9 of the Municipal Trial Court in Small Claims Case Nos. 2011-0077
and 2011-0079, ordering respondent [defendant therein] to pay
complainant and her husband the sum of P100,000.00 and P22,000.00,
respectively, with interest at the rate of 12% per annum from December 8,
2011 until fully paid, plus cost of suit.10
Complainant’s Position
From the records, it appears that complainant was referred to respondent
in connection with her legal problem regarding a deed of absolute sale she
entered into with Tierra Realty, which respondent had notarized. After
their discussion, complainant agreed to engage his legal services for the
filing of the appropriate case in court, for which they signed a contract.
Complainant paid respondent P20,000.00 as acceptance fee and P5,000.00
for incidental expenses.11
On September 28, 2009, respondent wrote a letter12 to Tropical Villas
Subdivision in relation to the legal problem referred by complainant. He
then visited the latter in her home and asked for a loan of P100,000.00,
payable in sixty (60) days, for the repair of his car. Complainant, having
trust and confidence on respondent being her lawyer, agreed to lend the
amount without interest. A promissory note13 evidenced the loan.
In November 2009, complainant became aware that Tierra Realty was
attempting to transfer to its name a lot she had previously purchased. She
referred the matter to respondent who recommended the immediate filing
of a case for reformation of contract with damages. On November 8, 2009,
respondent requested and thereafter received from complainant the
amount of P150,000.00, as filing fee.14 When asked about the exorbitant
amount, respondent cited the high value of the land and the sheriffs’ travel
expenses and accommodations in Manila, for the service of the summons
to the defendant corporation. Later, complainant confirmed that the fees
paid for the filing of Civil Case No. 14791-65, entitled Erlinda Foster v.
Tierra Realty and Development Corporation, only amounted to P22,410.00
per trial court records.15
During a conversation with the Registrar of Deeds, complainant also
discovered that respondent was the one who notarized the document
being questioned in the civil case she filed. When asked about this,
respondent merely replied that he would take a collaborating counsel to
handle complainant’s case. Upon reading a copy of the complaint filed by
respondent with the trial court, complainant noticed that: 1] the major
differences in the documents issued by Tierra Realty were not alleged; 2]
the contract to buy and sell and the deed of conditional sale were not
attached thereto; 3] the complaint discussed the method of payment
which was not the point of contention in the case; and 4] the very
anomalies she complained of were not mentioned. Respondent, however,
assured her that those matters could be brought up during the hearings.
On April 23, 2010, respondent wrote to complainant, requesting that the
latter extend to him the amount of P70,000.00 or P50,000.00 “in the
moment of urgency or emergency.”16 Complainant obliged the request and
gave respondent the sum of P22,000.00.
On August 31, 2010, respondent came to complainant’s house and
demanded the sum of P50,000.00, purportedly to be given to the judge in
exchange for a favorable ruling. Complainant expressed her misgivings on
this proposition but she eventually gave the amount of P25,000.00 which
was covered by a receipt,17 stating that “it is understood that the balance
of P25,000.00 shall be paid later after favorable judgment for plaintiff
Erlinda Foster.” On November 2, 2010, respondent insisted that the
remaining amount be given by complainant prior to the next hearing of the
case, because the judge was allegedly asking for the balance. Yet again,
complainant handed to respondent the amount of P25,000.00. 18
On September 29, 2010, complainant’s case was dismissed. Not having
been notified by respondent, complainant learned of the dismissal on
December 14, 2010, when she personally checked the status of the case
with the court. She went to the office of respondent, but he was not there.
Instead, one of the office staff gave her a copy of the order of dismissal.
On December 15, 2010, respondent visited complainant and gave her a
copy of the motion for reconsideration. On January 15, 2011, complainant
went to see respondent and requested him to prepare a reply to the
comment filed by Tierra Realty on the motion for reconsideration; to
include additional facts because the Land Registration Authority would not
accept the documents unless these were amended; and to make the
additional averment that the defendant was using false documents.
On January 18, 2011, respondent’s driver delivered to complainant a copy
of the reply with a message from him that the matters she requested to be
included were mentioned therein. Upon reading the same, however,
complainant discovered that these matters were not so included. On the
same occasion, the driver also asked for P2,500.00 on respondent’s
directive for the reimbursement of the value of a bottle of wine given to
the judge as a present. Complainant was also told that oral arguments on
the case had been set the following month.19
On February 2, 2011, complainant decided to terminate the services of
respondent as her counsel and wrote him a letter of termination, 20 after
her friend gave her copies of documents showing that respondent had
been acquainted with Tierra Realty since December 2007. Subsequently,
complainant wrote to respondent, requesting him to pay her the amounts
he received from her less the contract fee and the actual cost of the filing
fees. Respondent never replied.
Respondent’s Position
In his Answer,21 respondent alleged that he was 72 years old and had been
engaged in the practice of law since March 1972, and was President of the
IBP Ilocos Norte Chapter from 1998 to 1999. He admitted the fact that he
notarized the Deed of Absolute Sale subject of complainant’s case, but he
qualified that he was not paid his notarial fees therefor. He likewise
admitted acting as counsel for complainant for which he claimed to have
received P10,000.00 as acceptance fee and P5,000.00 for incidental fees.
Anent the loan of P100,000.00, respondent averred that it was
complainant, at the behest of her husband, who willingly offered the
amount to him for his patience in visiting them at home and for his
services. The transaction was declared as “no loan” and he was told not to
worry about its payment. As regards the amount of P150,000.00 he
received for filing fees, respondent claimed that the said amount was
suggested by the complainant herself who was persistent in covering the
incidental expenses in the handling of the case. He denied having said that
the sheriffs of the court would need the money for their hotel
accommodations. Complainant’s husband approved of the amount. In the
same vein, respondent denied having asked for a loan of P50,000.00 and
having received P22,000.00 from complainant. He also denied having told
her that the case would be discussed with the judge who would rule in
their favor at the very next hearing. Instead, it was complainant who was
bothered by the possibility that the other party would befriend the judge.
He never said that he would personally present a bottle of wine to the
judge.
Further, respondent belied the Registrar’s comment as to his
representation of Tierra Realty in the past. Respondent saw nothing wrong
in this situation since complainant was fully aware that another counsel
was assisting him in the handling of cases. Having been fully informed of
the nature of her cause of action and the consequences of the suit,
complainant was aware of the applicable law on reformation of contracts.
Finally, by way of counterclaim, respondent demanded just compensation
for the services he had rendered in other cases for the complainant.
Reply of Complainant
In her Reply,22 complainant mainly countered respondent’s defenses by
making reference to the receipts in her possession, all evidencing that
respondent accepted the amounts mentioned in the complaint.
Complainant also emphasized that respondent and Tierra Realty had
relations long before she met him. While respondent was employed as
Provincial Legal Officer of the Provincial Government of Ilocos Norte, he
was involved in the preparation of several documents involving Flying V, an
oil company owned by Ernest Villavicencio, who likewise owned Tierra
Realty. Complainant insisted that the amount of P100,000.00 she extended
to respondent was never considered as “no loan.”
On June 26, 2012, complainant furnished the Investigating Commissioner
copies of the Resolution, dated June 20, 2012, issued by the Office of the
City Prosecutor of Laoag City, finding probable cause against respondent
for estafa.23
Findings and Recommendation of the IBP
In its July 3, 2012 Report and Recommendation,24 the Investigating
Commissioner found respondent guilty of ethical impropriety and
recommended his suspension from the practice of law for one (1) year.
In its September 28, 2013 Resolution, the IBP-BOG adopted and approved
with modification the recommendation of suspension by the Investigating
Commissioner and ordered respondent to return to complainant: 1) his
loan of P122,000.00; and 2) the balance of the filing fee amounting to
P127,590.00.
Respondent received a copy of the said resolution on January 16, 2014 to
which he filed a motion for reconsideration.25 Complainant filed her
opposition thereto, informing the IBP-BOG that an information charging
respondent for estafa had already been filed in court and that a
corresponding order for his arrest had been issued.26
In its March 23, 2014 Resolution, the IBP-BOG denied respondent’s motion
for reconsideration but modified the penalty of his suspension from the
practice of law by reducing it from one (1) year to three (3) months.
Respondent was likewise ordered to return the balance of the filing fee
received from complainant amounting to P127,590.00.
No petition for review was filed with the Court.
The only issue in this case is whether respondent violated the Code of
Professional Responsibility (CPR).
The Court’s Ruling
The Court sustains the findings and recommendation of the Investigating
Commissioner with respect to respondent’s violation of Rules 1 and 16 of
the CPR. The Court, however, modifies the conclusion on his alleged
violation of Rule 15, on representing conflicting interests. The Court also
differs on the penalty.
Rule 1.0, Canon 1 of the CPR, provides that “[a] lawyer shall not engage in
unlawful, dishonest, immoral or deceitful conduct.” It is well-established
that a lawyer’s conduct is “not confined to the performance of his
professional duties. A lawyer may be disciplined for misconduct committed
either in his professional or private capacity. The test is whether his
conduct shows him to be wanting in moral character, honesty, probity, and
good demeanor, or whether it renders him unworthy to continue as an
officer of the court.”27
In this case, respondent is guilty of engaging in dishonest and deceitful
conduct, both in his professional and private capacity. As a lawyer, he
clearly misled complainant into believing that the filing fees for her case
were worth more than the prescribed amount in the rules, due to feigned
reasons such as the high value of the land involved and the extra expenses
to be incurred by court employees. In other words, he resorted to
overpricing, an act customarily related to depravity and dishonesty. He
demanded the amount of P150,000.00 as filing fee, when in truth, the
same amounted only to P22,410.00. His defense that it was complainant
who suggested that amount deserves no iota of credence. For one, it is
highly improbable that complainant, who was then plagued with the rigors
of litigation, would propose such amount that would further burden her
financial resources. Assuming that the complainant was more than willing
to shell out an exorbitant amount just to initiate her complaint with the
trial court, still, respondent should not have accepted the excessive
amount. As a lawyer, he is not only expected to be knowledgeable in the
matter of filing fees, but he is likewise duty-bound to disclose to his client
the actual amount due, consistent with the values of honesty and good
faith expected of all members of the legal profession.
Moreover, the “fiduciary nature of the relationship between the counsel
and his client imposes on the lawyer the duty to account for the money or
property collected or received for or from his client.”28Money entrusted to
a lawyer for a specific purpose but not used for the purpose should be
immediately returned. A lawyer’s failure to return upon demand the funds
held by him on behalf of his client gives rise to the presumption that he has
appropriated the same for his own use in violation of the trust reposed in
him by his client. Such act is a gross violation of general morality as well as
of professional ethics. It impairs public confidence in the legal profession
and deserves punishment.29
It is clear that respondent failed to fulfill this duty. As pointed out, he
received various amounts from complainant but he could not account for
all of them. Worse, he could not deny the authenticity of the receipts
presented by complainant. Upon demand, he failed to return the excess
money from the alleged filing fees and other expenses. His possession
gives rise to the presumption that he has misappropriated it for his own
use to the prejudice of, and in violation of the trust reposed in him by, the
client.30 When a lawyer receives money from the client for a particular
purpose, the lawyer is bound to render an accounting to the client showing
that the money was spent for the intended purpose. Consequently, if the
lawyer does not use the money for the intended purpose, the lawyer must
immediately return the money to the client.31
Somewhat showing a propensity to demand excessive and unwarranted
amounts from his client, respondent displayed a reprehensible conduct
when he asked for the amount of P50,000.00 as “representation expenses”
allegedly for the benefit of the judge handling the case, in exchange for a
favorable decision. Respondent himself signed a receipt showing that he
initially took the amount of P 25,000.00 and, worse, he subsequently
demanded and received the other half of the amount at the time the case
had already been dismissed. Undoubtedly, this act is tantamount to gross
misconduct that necessarily warrants the supreme penalty of disbarment.
The act of demanding a sum of money from his client, purportedly to be
used as a bribe to ensure a positive outcome of a case, is not only an abuse
of his client’s trust but an overt act of undermining the trust and faith of
the public in the legal profession and the entire Judiciary. This is the height
of indecency. As officers of the court, lawyers owe their utmost fidelity to
public service and the administration of justice. In no way should a lawyer
indulge in any act that would damage the image of judges, lest the public’s
perception of the dispensation of justice be overshadowed by iniquitous
doubts. The denial of respondent and his claim that the amount was given
gratuitously would not excuse him from any liability. The absence of proof
that the said amount was indeed used as a bribe is of no moment. To
tolerate respondent’s actuations would seriously erode the public’s trust in
the courts.
As it turned out, complainant’s case was dismissed as early as September
29, 2010. At this juncture, respondent proved himself to be negligent in his
duty as he failed to inform his client of the status of the case, and left the
client to personally inquire with the court. Surely, respondent was not only
guilty of misconduct but was also remiss in his duty to his client.
Respondent’s unbecoming conduct towards complainant did not stop
here. Records reveal that he likewise violated Rule 16.04, Canon 16 of the
CPR, which states that “[a] lawyer shall not borrow money from his client
unless the client’s interests are fully protected by the nature of the case or
by independent advice. Neither shall a lawyer lend money to a client
except, when in the interest of justice, he has to advance necessary
expenses in a legal matter he is handling for the client.” In his private
capacity, he requested from his client, not just one, but two loans of
considerable amounts. The first time, he visited his client in her home and
borrowed P100,000.00 for the repair of his car; and the next time, he
implored her to extend to him a loan of P70,000.00 or P50,000.00 “in the
moment of urgency or emergency” but was only given P22,000.00 by
complainant. These transactions were evidenced by promissory notes and
receipts, the authenticity of which was never questioned by respondent.
These acts were committed by respondent in his private capacity,
seemingly unrelated to his relationship with complainant, but were
indubitably acquiesced to by complainant because of the trust and
confidence reposed in him as a lawyer. Nowhere in the records,
particularly in the defenses raised by respondent, was it implied that these
loans fell within the exceptions provided by the rules. The loans of
P100,000.00 and P22,000.00 were surely not protected by the nature of
the case or by independent advice. Respondent’s assertion that the
amounts were given to him out of the liberality of complainant and were,
thus, considered as “no loan,” does not justify his inappropriate behavior.
The acts of requesting and receiving money as loans from his client and
thereafter failing to pay the same are indicative of his lack of integrity and
sense of fair dealing. Up to the present, respondent has not yet paid his
obligations to complainant.
Time and again, the Court has consistently held that deliberate failure to
pay just debts constitutes gross misconduct, for which a lawyer may be
sanctioned with suspension from the practice of law. Lawyers are
instruments for the administration of justice and 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 so that the
people’s faith and confidence in the judicial system is ensured. They must,
at all times, faithfully perform their duties to society, to the bar, the courts
and their clients, which include prompt payment of financial obligations. 32
Verily, when the Code or the Rules speaks of “conduct” or “misconduct,”
the reference is not confined to one’s behavior exhibited in connection
with the performance of the lawyer’s professional duties, but also covers
any misconduct which, albeit unrelated to the actual practice of his
profession, would show him to be unfit for the office and unworthy of the
privileges which his license and the law vest him with. Unfortunately,
respondent must be found guilty of misconduct on both scores.
With respect to respondent’s alleged representation of conflicting
interests, the Court finds it proper to modify the findings of the
Investigating Commissioner who concluded that complainant presented
insufficient evidence of respondent’s “lawyering” for the opposing party,
Tierra Realty.
Rule 15.03, Canon 15 of the CPR, provides that “[a] lawyer shall not
represent conflicting interest except by written consent of all concerned
given after a full disclosure of the facts.” The relationship between a
lawyer and his/her client should ideally be imbued with the highest level of
trust and confidence. This is the standard of confidentiality that must
prevail to promote a full disclosure of the client’s most confidential
information to his/her lawyer for an unhampered exchange of information
between them. Needless to state, a client can only entrust confidential
information to his/her lawyer based on an expectation from the lawyer of
utmost secrecy and discretion; the lawyer, for his part, is duty-bound to
observe candor, fairness and loyalty in all dealings and transactions with
the client. Part of the lawyer’s duty in this regard is to avoid representing
conflicting interests.”33 Thus, even if lucrative fees offered by prospective
clients are at stake, a lawyer must decline professional employment if the
same would trigger the violation of the prohibition against conflict of
interest. The only exception provided in the rules is a written consent from
all the parties after full disclosure.
The Court deviates from the findings of the IBP. There is substantial
evidence to hold respondent liable for representing conflicting interests in
handling the case of complainant against Tierra Realty, a corporation to
which he had rendered services in the past. The Court cannot ignore the
fact that respondent admitted to having notarized the deed of sale, which
was the very document being questioned in complainant’s case. While the
Investigating Commissioner found that the complaint in Civil Case No.
14791-65 did not question the validity of the said contract, and that only
the intentions of the parties as to some provisions thereof were
challenged, the Court still finds that the purpose for which the proscription
was made exists. The Court cannot brush aside the dissatisfied
observations of the complainant as to the allegations lacking in the
complaint against Tierra Realty and the clear admission of respondent that
he was the one who notarized the assailed document. Regardless of
whether it was the validity of the entire document or the intention of the
parties as to some of its provisions raised, respondent fell short of
prudence in action when he accepted complainant’s case, knowing fully
that he was involved in the execution of the very transaction under
question. Neither his unpaid notarial fees nor the participation of a
collaborating counsel would excuse him from such indiscretion. It is
apparent that respondent was retained by clients who had close dealings
with each other. More significantly, there is no record of any written
consent from any of the parties involved.
The representation of conflicting interests is prohibited “not only because
the relation of attorney and client is one of trust and confidence of the
highest degree, but also because of the principles of public policy and good
taste. An attorney has the duty to deserve the fullest confidence of his
client and represent him with undivided loyalty. Once this confidence is
abused or violated the entire profession suffers.”34
Penalties and Pecuniary Liabilities
A member of the Bar may be penalized, even disbarred or suspended from
his office as an attorney, for violation of the lawyer’s oath and/or for
breach of the ethics of the legal profession as embodied in the CPR.35 For
the practice of law is “a profession, a form of public trust, the performance
of which is entrusted to those who are qualified and who possess good
moral character.”36 The appropriate penalty for an errant lawyer depends
on the exercise of sound judicial discretion based on the surrounding
facts.37
Under Section 27, Rule 138 of the Revised Rules of Court, a member of the
Bar may be disbarred or suspended on any of the following grounds: (1)
deceit; (2) malpractice or other gross misconduct in office; (3) grossly
immoral conduct; (4) conviction of a crime involving moral turpitude; (5)
violation of the lawyer's oath; (6) willful disobedience of any lawful order
of a superior court; and (7) willful appearance as an attorney for a party
without authority. A lawyer may be disbarred or suspended for
misconduct, whether in his professional or private capacity, which shows
him to be wanting in moral character, honesty, probity and good
demeanor, or unworthy to continue as an officer of the court.
Here, respondent demonstrated not just a negligent disregard of his duties
as a lawyer but a wanton betrayal of the trust of his client and, in general,
the public. Accordingly, the Court finds that the suspension for three (3)
months recommended by the IBP-BOG is not sufficient punishment for the
unacceptable acts and omissions of respondent. The acts of the
respondent constitute malpractice and gross misconduct in his office as
attorney. His incompetence and appalling indifference to his duty to his
client, the courts and society render him unfit to continue discharging the
trust reposed in him as a member of the Bar.
For taking advantage of the unfortunate situation of the complainant, for
engaging in dishonest and deceitful conduct, for maligning the judge and
the Judiciary, for undermining the trust and faith of the public in the legal
profession and the entire judiciary, and for representing conflicting
interests, respondent deserves no less than the penalty of disbarment.38
Notably, the Court cannot order respondent to return the money he
borrowed from complainant in his private capacity. In Tria-Samonte v.
Obias,39 the Court held that it cannot order the lawyer to return money to
complainant if he or she acted in a private capacity because its findings in
administrative cases have no bearing on liabilities which have no intrinsic
link to the lawyer’s professional engagement. In disciplinary proceedings
against lawyers, the only issue is whether the officer of the court is still fit
to be allowed to continue as a member of the Bar. The only concern of the
Court is the determination of respondent’s administrative liability. Its
findings have no material bearing on other judicial actions which the
parties may choose against each other.
To rule otherwise would in effect deprive respondent of his right to appeal
since administrative cases are filed directly with the Court. Furthermore,
the quantum of evidence required in civil cases is different from the
quantum of evidence required in administrative cases. In civil cases,
preponderance of evidence is required. Preponderance of evidence is “a
phrase which, in the last analysis, means probability of the truth. It is
evidence which is more convincing to the court as worthier of belief than
that which is offered in opposition thereto.”40 In administrative cases, only
substantial evidence is needed. Substantial evidence, which is more than a
mere scintilla but is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion, would suffice to hold one
administratively liable.41Furthermore, the Court has to consider the
prescriptive period applicable to civil cases in contrast to administrative
cases which are, as a rule, imprescriptible.42
Thus, the IBP-BOG was correct in ordering respondent to return the
amount of P127,590.00 representing the balance of the filing fees he
received from complainant, as this was intimately related to the lawyer-
client relationship between them. Similar to this is the amount of
P50,000.00 which respondent received from complainant, as
representation expenses for the handling of the civil case and for the
purported purchase of a bottle of wine for the judge. These were
connected to his professional relationship with the complainant. While
respondent’s deplorable act of requesting the said amount for the benefit
of the judge is stained with mendacity, respondent should be ordered to
return the same as it was borne out of their professional relationship. As to
his other obligations, respondent was already adjudged as liable for the
personal loans he contracted with complainant, per the small claims cases
filed against him.
All told, in the exercise of its disciplinary powers, “the Court merely calls
upon a member of the Bar to account for his actuations as an officer of the
Court with the end in view of preserving the purity of the legal
profession.”43 The Court likewise aims to ensure the proper and honest
administration of justice by “purging the profession of members who, by
their misconduct, have proven themselves no longer worthy to be
entrusted with the duties and responsibilities of an attorney.” 44
WHEREFORE, finding the respondent, Atty. Jaime V. Agtang, GUILTY of
gross misconduct in violation of the Code of Professional Responsibility,
the Court hereby DISBARS him from the practice of law and ORDERS him
to pay the complainant, Erlinda Foster, the amounts of P127,590.00,
P50,000.00 and P2,500.00.
Let a copy of this Decision be sent to the Office of the Bar Confidant, the
Integrated Bar of the Philippines and the Office of the Court Administrator
to be circulated to all courts.
SO ORDERED.
EN BANC
A.C. No. 9872 January 28, 2014
NATIVIDAD P. NAVARRO and HILDA S. PRESBITERO, Complainants,
vs.
ATTY. IVAN M. SOLIDUM, JR., Respondent.
DECISION
PER CURIAM:
This case originated from a complaint for disbarment, dated 26 May 2008,
filed by Natividad P. Navarro (Navarro) and Hilda S. Presbitero (Presbitero)
against Atty. Ivan M. Solidum, Jr. (respondent) before the Integrated Bar of
the Philippines Commission on Bar Discipline (IBP-CBD).
From the Report, dated 1July 2009, of the IBP-CBD, we gathered the
following facts of the case:
On 4 April 2006, respondent signed a retainer agreement with Presbitero
to follow up the release of the payment for the latter’s 2.7-hectare
property located in Bacolod which was the subject of a Voluntary Offer to
Sell (VOS) to the Department of Agrarian Reform (DAR). The agreement
also included the payment of the debts of Presbitero’s late husband to the
Philippine National Bank (PNB), the sale of the retained areas of the
property, and the collection of the rentals due for the retained areas from
their occupants. It appeared that the DAR was supposed to pay ₱700,000
for the property but it was mortgaged by Presbitero and her late husband
to PNB for ₱1,200,000. Presbitero alleged that PNB’s claim had already
prescribed, and she engaged the services of respondent to represent her in
the matter. Respondent proposed the filing of a case for quieting of title
against PNB. Respondent and Presbitero agreed to an attorney’s fee of
10% of the proceeds from the VOS or the sale of the property, with the
expenses to be advanced by Presbitero but deductible from respondent’s
fees. Respondent received ₱50,000 from Presbitero, supposedly for the
expenses of the case, but nothing came out of it.
In May 2006, Presbitero’s daughter, Ma. Theresa P. Yulo (Yulo), also
engaged respondent’s services to handle the registration of her 18.85-
hectare lot located in Nasud-ong, Caradio-an, Himamaylan, Negros. Yulo
convinced her sister, Navarro, to finance the expenses for the registration
of the property. Respondent undertook to register the property in
consideration of 30% of the value of the property once it is registered.
Respondent obtained ₱200,000 from Navarro for the registration
expenses. Navarro later learned that the registration decree over the
property was already issued in the name of one Teodoro Yulo. Navarro
alleged that she would not have spent for the registration of the property
if respondent only apprised her of the real situation of the property.
On 25 May 2006, respondent obtained a loan of ₱1,000,000 from Navarro
to finance his sugar trading business. Respondent and Navarro executed a
Memorandum of Agreement (MOA) and agreed that the loan (a) shall be
for a period of one year; (b) shall earn interest at the rate of 10% per
month; and (c) shall be secured by a real estate mortgage over a property
located in Barangay Alijis, Bacolod City, covered by Transfer Certificate of
Title No. 304688. They also agreed that respondent shall issue postdated
checks to cover the principal amount of the loan as well as the interest
thereon. Respondent delivered the checks to Navarro, drawn against an
account in Metrobank, Bacolod City Branch, and signed them in the
presence of Navarro.
In June 2006, respondent obtained an additional loan of ₱1,000,000 from
Navarro, covered by a second MOA with the same terms and conditions as
the first MOA. Respondent sent Navarro, through a messenger, postdated
checks drawn against an account in Bank of Commerce, Bacolod City
Branch. Respondent likewise discussed with Navarro about securing a
"Tolling Agreement" with Victorias Milling Company, Inc. but no
agreement was signed.
At the same time, respondent obtained a loan of ₱1,000,000 from
Presbitero covered by a third MOA, except that the real estate mortgage
was over a 263-square-meter property located in Barangay Taculing,
Bacolod City. Respondent sent Presbitero postdated checks drawn against
an account in Metrobank, Bacolod City Branch.
Presbitero was dissatisfied with the value of the 263-square-meter
property mortgaged under the third MOA, and respondent promised to
execute a real estate mortgage over a 1,000-square-meter parcel of land
adjacent to the 4,000-square-meter property he mortgaged to Navarro.
However, respondent did not execute a deed for the additional security.
Respondent paid the loan interest for the first few months. He was able to
pay complainants a total of ₱900,000. Thereafter, he failed to pay either
the principal amount or the interest thereon. In September 2006, the
checks issued by respondent to complainants could no longer be
negotiated because the accounts against which they were drawn were
already closed. When complainants called respondent’s attention, he
promised to pay the agreed interest for September and October 2006 but
asked for a reduction of the interest to 7% for the succeeding months.
In November 2006, respondent withdrew as counsel for Yulo. On the other
hand, Presbitero terminated the services of respondent as counsel.
Complainants then filed petitions for the judicial foreclosure of the
mortgages executed by respondent in their favor. Respondent countered
that the 10% monthly interest on the loan was usurious and illegal.
Complainants also filed cases for estafa and violation of Batas Pambansa
Blg. 22 against respondent.
Complainants alleged that respondent induced them to grant him loans by
offering very high interest rates. He also prepared and signed the checks
which turned out to be drawn against his son’s accounts. Complainants
further alleged that respondent deceived them regarding the identity and
value of the property he mortgaged because he showed them a different
property from that which he owned. Presbitero further alleged that
respondent mortgaged his 263-square-meter property to her for
₱1,000,000 but he later sold it for only ₱150,000.
Respondent, for his defense, alleged that he was engaged in sugar and
realty business and that it was Yulo who convinced Presbitero and Navarro
to extend him loans. Yulo also assured him that Presbitero would help him
with the refining of raw sugar through Victorias Milling Company, Inc.
Respondent alleged that Navarro fixed the interest rate and he agreed
because he needed the money. He alleged that their business transactions
were secured by real estate mortgages and covered by postdated checks.
Respondent denied that the property he mortgaged to Presbitero was less
than the value of the loan. He also denied that he sold the property
because the sale was actually rescinded. Respondent claimed that the
property he mortgaged to Navarro was valuable and it was actually worth
more than ₱8,000,000.
Respondent alleged that he was able to pay complainants when business
was good but he was unable to continue paying when the price of sugar
went down and when the business with Victorias Milling Company, Inc. did
not push through because Presbitero did not help him. Respondent also
denied that he was hiding from complainants.
Respondent further alleged that it was Yulo who owed him ₱530,000 as
interest due for September to December 2005. He denied making any false
representations. He claimed that complainants were aware that he could
no longer open a current account and they were the ones who proposed
that his wife and son issue the checks. Respondent further alleged that he
already started with the titling of Yulo’s lot but his services were
terminated before it could be completed.
A supplemental complaint was filed charging respondent with accepting
cases while under suspension. In response, respondent alleged that he
accepted Presbitero’s case in February 2006 and learned of his suspension
only in May 2006.
After conducting a hearing and considering the position papers submitted
by the parties, the IBP-CBD found that respondent violated the Code of
Professional Responsibility.
The IBP-CBD found that respondent borrowed ₱2,000,000 from Navarro
and ₱1,000,000 from Presbitero which he failed to pay in accordance with
the MOAs he executed. The IBP-CBD found that based on the documents
presented by the parties, respondent did not act in good faith in obtaining
the loans. The IBP-CBD found that respondent either promised or agreed
to pay the very high interest rates of the loans although he knew them to
be exorbitant in accordance with jurisprudence. Respondent likewise failed
to deny that he misled Navarro and her husband regarding the identity of
the property mortgaged to them. Respondent also mortgaged a property
to Presbitero for ₱1,000,000 but documents showed that its value was
only ₱300,000. Documents also showed that he sold that property for only
₱150,000. Respondent conspired with Yulo to secure loans by promising
her a 10% commission and later claimed that they agreed that Yulo would
"ride" on the loan by borrowing ₱300,000 from the amount he obtained
from Navarro and Presbitero. Respondent could not explain how he lost all
the money he borrowed in three months except for his claim that the price
of sugar went down.
The IBP-CBD found that respondent misled Navarro and Presbitero
regarding the issuance of the postdated checks, and there was nothing in
the records that would show that he informed them that it would be his
wife or son who would issue the checks. The IBP-CBD also found that
respondent had not been transparent in liquidating the money he received
in connection with Presbitero’s VOS with DAR. He was also negligent in his
accounting regarding the registration of Yulo’s property which was
financed by Navarro.
The IBP-CBD found that respondent was guilty of violating Rule 1.01 of the
Code of Professional Responsibility for committing the following acts:
(1) signing drawn checks against the account of his son as if they
were from his own account;
(2) misrepresenting to Navarro the identity of the lot he
mortgaged to her;
(3) misrepresenting to Presbitero the true value of the 263-
square-meter lot he mortgaged to her;
(4) conspiring with Yulo to obtain the loans from complainants;
(5) agreeing or promising to pay 10% interest on his loans
although he knew that it was exorbitant; and
(6) failing to pay his loans because the checks he issued were
dishonored as the accounts were already closed.
The IBP-CBD also found that respondent violated Canon 16 and Rule 16.01
of the Code of Professional Responsibility when he failed to properly
account for the various funds he received from complainants.
In addition, the IBP-CBD found that respondent violated Rule 16.04 of the
Code of Professional Responsibility which prohibits borrowing money from
a client unless the client’s interest is fully protected or the client is given
independent advice.
On the matter of practicing law while under suspension, the IBP-CBD found
that the records were not clear whether the notice of suspension
respondent received on 29 May 2006 was the report and recommendation
of the IBP-CBD or the final decision of this Court. The IBP-CBD likewise
found that there was insufficient evidence to prove that respondent
mishandled his cases.
The IBP-CBD recommended that respondent be meted the penalty of
disbarment.
In Resolution No. XIX-2011-267 dated 14 May 2011, the IBP Board of
Governors adopted and approved the recommendation of the IBP-CBD
with modification by reducing the recommended penalty from disbarment
to suspension from the practice of law for two years. The IBP Board of
Governors likewise ordered respondent to return the amount of his unpaid
obligation to complainants.
Complainants filed a motion for reconsideration, praying that the penalty
of disbarment be instead imposed upon respondent.
The only issue in this case is whether respondent violated the Code of
Professional Responsibility.
The records show that respondent violated at least four provisions of the
Code of Professional Responsibility.
Rule 1.01 of the Code of Professional Responsibility provides:
Rule 1.01. - A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct.
With respect to his client, Presbitero, it was established that respondent
agreed to pay a high interest rate on the loan he obtained from her. He
drafted the MOA. Yet, when he could no longer pay his loan, he sought to
nullify the same MOA he drafted on the ground that the interest rate was
unconscionable. It was also established that respondent mortgaged a 263-
square-meter property to Presbitero for ₱1,000,000 but he later sold the
property for only ₱150,000, showing that he deceived his client as to the
real value of the mortgaged property. Respondent’s allegation that the
sale was eventually rescinded did not distract from the fact that he did not
apprise Presbitero as to the real value of the property.
Respondent failed to refute that the checks he issued to his client
Presbitero and to Navarro belonged to his son, Ivan Garcia Solidum III
whose name is similar to his name. He only claimed that complainants
knew that he could no longer open a current bank account, and that they
even suggested that his wife or son issue the checks for him. However, we
are inclined to agree with the IBP-CBD’s finding that he made complainants
believe that the account belonged to him. In fact, respondent signed in the
presence of Navarro the first batch of checks he issued to Navarro.
Respondent sent the second batch of checks to Navarro and the third
batch of checks to Presbitero through a messenger, and complainants
believed that the checks belonged to accounts in respondent’s name.
It is clear that respondent violated Rule 1.01 of the Code of Professional
Responsibility. We have ruled that conduct, as used in the Rule, is not
confined to the performance of a lawyer’s professional duties. 1 A lawyer
may be disciplined for misconduct committed either in his professional or
private capacity.2 The test is whether his conduct shows him to be wanting
in moral character, honesty, probity, and good demeanor, or whether it
renders him unworthy to continue as an officer of the court. 3
In this case, the loan agreements with Navarro were done in respondent’s
private capacity. Although Navarro financed the registration of Yulo’s lot,
respondent and Navarro had no lawyer-client relationship. However,
respondent was Presbitero’s counsel at the time she granted him a loan. It
was established that respondent misled Presbitero on the value of the
property he mortgaged as a collateral for his loan from her. To appease
Presbitero, respondent even made a Deed of Undertaking that he would
give her another 1,000-square-meter lot as additional collateral but he
failed to do so.
Clearly, respondent is guilty of engaging in dishonest and deceitful
conduct, both in his professional capacity with respect to his client,
Presbitero, and in his private capacity with respect to complainant
Navarro. Both Presbitero and Navarro allowed respondent to draft the
terms of the loan agreements. Respondent drafted the MOAs knowing that
the interest rates were exorbitant. Later, using his knowledge of the law,
he assailed the validity of the same MOAs he prepared. He issued checks
that were drawn from his son’s account whose name was similar to his
without informing complainants. Further, there is nothing in the records
that will show that respondent paid or undertook to pay the loans he
obtained from complainants.
Canon 16 and Rule 16.01 of the Code of Professional Responsibility
provide:
CANON 16. - A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND
PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS POSSESSION.
Rule 16.01 – A lawyer shall account for all money or property collected or
received for or from the client.
The fiduciary nature of the relationship between the counsel and his client
imposes on the lawyer the duty to account for the money or property
collected or received for or from his client.4 We agree with the IBP-CBD
that respondent failed to fulfill this duty. In this case, the IBP-CBD pointed
out that respondent received various amounts from complainants but he
could not account for all of them.
Navarro, who financed the registration of Yulo’s 18.85-hectare lot, claimed
that respondent received ₱265,000 from her. Respondent countered that
₱105,000 was paid for real estate taxes but he could not present any
receipt to prove his claim. Respondent also claimed that he paid ₱70,000
to the surveyor but the receipt was only for ₱15,000. Respondent claimed
that he paid ₱50,000 for filing fee, publication fee, and other expenses but
again, he could not substantiate his claims with any receipt. As pointed out
by the IBP-CBD, respondent had been less than diligent in accounting for
the funds he received from Navarro for the registration of Yulo’s property.
Unfortunately, the records are not clear whether respondent rendered an
accounting to Yulo who had since passed away.
As regards Presbitero, it was established during the clarificatory hearing
that respondent received ₱50,000 from Presbitero. As the IBP-CBD pointed
out, the records do not show how respondent spent the funds because he
was not transparent in liquidating the money he received from Presbitero.
Clearly, respondent had been negligent in properly accounting for the
money he received from his client, Presbitero.1âwphi1Indeed, his failure
to return the excess money in his possession gives rise to the presumption
that he has misappropriated it for his own use to the prejudice of, and in
violation of the trust reposed in him by, the client.5
Rule 16.04 of the Code of Professional Responsibility provides:
Rule 16.04. - A lawyer shall not borrow money from his client unless the
client’s interests are fully protected by the nature of the case or by
independent advice. Neither shall a lawyer lend money to a client except,
when in the interest of justice, he has to advance necessary expenses in a
legal matter he is handling for the client.
Here, respondent does not deny that he borrowed ₱1,000,000 from his
client Presbitero. At the time he secured the loan, respondent was already
the retained counsel of Presbitero.
While respondent’s loan from Presbitero was secured by a MOA,
postdated checks and real estate mortgage, it turned out that respondent
misrepresented the value of the property he mortgaged and that the
checks he issued were not drawn from his account but from that of his son.
Respondent eventually questioned the terms of the MOA that he himself
prepared on the ground that the interest rate imposed on his loan was
unconscionable. Finally, the checks issued by respondent to Presbitero
were dishonored because the accounts were already closed. The interest
of his client, Presbitero, as lender in this case, was not fully protected.
Respondent violated Rule 16.04 of the Code of Professional Responsibility,
which presumes that the client is disadvantaged by the lawyer’s ability to
use all the legal maneuverings to renege on his obligation.6 In his dealings
with his client Presbitero, respondent took advantage of his knowledge of
the law as well as the trust and confidence reposed in him by his client.
We modify the recommendation of the IBP Board of Governors imposing
on respondent the penalty of suspension from the practice of law for two
years. Given the facts of the case, we see no reason to deviate from the
recommendation of the IBP-CBD imposing on respondent the penalty of
disbarment. Respondent failed to live up to the high standard of morality,
honesty, integrity, and fair dealing required of him as a member of the
legal profession.7 Instead, respondent employed his knowledge and skill of
the law and took advantage of his client to secure undue gains for
himself8 that warrants his removal from the practice of law. Likewise, we
cannot sustain the IBP Board of Governors’ recommendation ordering
respondent to return his unpaid obligation to complainants, except for
advances for the expenses he received from his client, Presbitero, that
were not accounted at all. In disciplinary proceedings against lawyers, the
only issue is whether the officer of the court is still fit to be allowed to
continue as a member of the Bar.9 Our only concern is the determination
of respondent’s administrative liability.10
Our findings have no material bearing on other judicial action which the
parties may choose to file against each other.11 Nevertheless, when a
lawyer receives money from a client for a particular purpose involving the
client-attorney relationship, he is bound to render an accounting to the
client showing that the money was spent for that particular purpose. 12 If
the lawyer does not use the money for the intended purpose, he must
immediately return the money to his client.13 Respondent was given an
opportunity to render an accounting, and he failed. He must return the full
amount of the advances given him by Presbitero, amounting to ₱50,000.
WHEREFORE, the Court finds Atty. Ivan M. Solidum, Jr. GUILTY of violating
Rule 1.01, Canon 16, Rule 16.01, and Rule 16.04 of the Code of
Professional Responsibility. Accordingly, the Court DISBARS him from the
practice of law effective immediately upon his receipt of this Decision.
Atty. Solidum is ORDERED to return the advances he received from Hilda S.
Presbitero, amounting to ₱50,000, and to submit to the Office of the Bar
Confidant his compliance with this order within thirty days from finality of
this Decision.
Let copies of this Decision be furnished the Office of the Bar Confidant, the
Integrated Bar of the Philippines for distribution to all its chapters, and the
Office of the Court Administrator for dissemination to all courts all over the
country. Let a copy of this Decision be attached to the personal records of
respondent.
SO ORDERED.
[A.M. No. RTJ-01-1657. February 23, 2004]
HEINZ R. HECK, complainant, vs. JUDGE ANTHONY E. SANTOS, REGIONAL
TRIAL COURT, BRANCH 19, CAGAYAN DE ORO CITY,[1] respondent.
DECISION
CALLEJO SR., J.:
May a retired judge charged with notarizing documents without the
requisite notary commission more than twenty years ago be disciplined
therefor? This is the novel issue presented for resolution before this Court.
The instant case arose when in a verified Letter-Complaint dated
March 21, 2001 Heinz R. Heck prayed for the disbarment of Judge Anthony
E. Santos, Regional Trial Court, Branch 19, Cagayan de Oro City.
The complainant alleged that prior to the respondents appointment as
RTC judge on April 11, 1989, he violated the notarial law, thus:
Judge Santos, based on ANNEX A, was not duly
commissioned as notary public until January 9, 1984 but still
 subscribed and forwarded (on a non-regular basis) notarized
documents to the Clerk of Court VI starting January 1980
uncommissioned until the 9th of January 1984.
a) Judge Santos was commissioned further January 16th 1986 to
December 31st 1987 and January 6th 1988 to December
31st 1989 but the records fail to show any entry at the Clerk of
Court after December 31st 1985 until December 31st 1989.
b) Judge Santos failed to forward his Notarial Register after the
expiration of his commission in December 1989.[2]
...
WHEREFORE in light of the foregoing complainant pray[s] to order
respondent:
1. To disbar Judge Anthony E. Santos and to prohibit him from all
future public service.
2. To forfeit [the] retirement benefits of Judge Santos.
3. To prohibit Judge Santos from future practice of Law.
4. To file a criminal suit against Judge Santos.
5. To conduct a speedy investigation and not to grant/accept any
delaying tactics from Judge Santos or any agency and or public
servants involved in this administrative case.
6. To pay all costs and related costs involved in this administrative
case.
and prays for other relief in accordance with equity and fairness based on
the premises.[3]
The complainant submitted a certification from Clerk of Court, Atty.
Beverly Sabio-Beja, Regional Trial Court, Misamis Oriental, which contained
the following:
THIS CERTIFIES that upon verification from the records found and available
in this office, the following data appear:
1. The name Atty. Anthony E. Santos is listed as a duly
commissioned notary public in the following years:
a. January 9, 1984 to December 31, 1985
b. January 16, 1986 to December 31, 1987
c. January 6, 1988 to December 31, 1989
2. Based on the records of transmittals of notarial reports, Atty.
Anthony E. Santos submitted his notarial reports in the ff.
years:
a. January 1980 report - was submitted on Feb. 6, 1980
b. February to April 1980 report - was submitted on June 6,
1980
c. May to June 1980 report - was submitted on July 29, 1980
d. July to October 1980 report - submitted but no date of
submission
e. November to December 1980-no entry
f. January to February 1981 - no entry
g. March to December 1981 - submitted but no date of
submission
h. January to December 1982 - submitted but no date of
submission
i. January to June 1983 - submitted on January 5, 1984
j. July to December 1983 - no entry
k. January to December 1984 - submitted on January 20, 1986
l. January to December 1985 - submitted on January 20, 1986
4. Records fail to show any entry of transmittal of notarial
documents under the name Atty. Anthony Santos after
December 1985.
5. It is further certified that the last notarial commission issued to
Atty. Anthony Santos was on January 6, 1988 until December
31, 1989.[4]
In his Answer dated June 13, 2001, the respondent judge categorically
denied the charges against him. He also submitted a certification [5] from
Clerk of Court, Atty. Sabio-Beja, to prove that there was no proper recording
of the commissioned lawyers in the City of Cagayan de Oro as well as the
submitted notarized documents/notarial register. The respondent further
averred as follows:
That the complainant has never been privy to the documents notarized
and submitted by the respondent before the Office of the Clerk of Court of
the Regional Trial Court of Misamis Oriental, nor his rights prejudiced on
account of the said notarized documents and therefore not the proper
party to raise the said issues;
That the complainant was one of the defendants in Civil Case No. 94-334
entitled Vinas Kuranstalten Gesmbh et al. versus Lugait Aqua Marine
Industries, Inc., and Heinz Heck, for Specific Performance & Sum of Money,
filed before the Regional Trial Court, Branch 19, Cagayan de Oro City,
wherein respondent is the Presiding Judge. The undersigned resolved the
case in favor of the plaintiffs.[6]
Pursuant to the report of the Office of the Court Administrator
recommending the need to resort to a full-blown investigation to determine
the veracity of the parties assertions, the Court, in a Resolution dated
September 10, 2001, resolved to: (a) treat the matter as a regular
administrative complaint; and (b) refer the case to Associate Justice Edgardo
P. Cruz of the Court of Appeals (CA) for investigation, report and
recommendation.[7]
In his Letters dated December 10, 2001 and February 1, 2002, the
complainant requested that the hearing be held at Cagayan de Oro City.
Justice Cruz initially denied the request but upon the complainants
insistence, the matter was forwarded to the Court, which favorably acted
thereon in a Resolution dated July 8, 2002.[8] The complainant presented his
evidence in Cagayan de Oro City before retired Court of Appeals Justice
Romulo S. Quimbo.[9]
In a Sealed Report dated August 14, 2003, Investigating Justice Edgardo
P. Cruz made the following recommendation:
It is recommended that [i] respondent (who retired on May 22, 2002) be
found guilty of violation of the Notarial Law by (a) notarizing documents
without commission; (b) tardiness in submission of notarial reports; and (c)
non-forwarding of his notarial register to the Clerk of Court upon
expiration of his commission; and [ii] that for these infractions, he be
suspended from the practice of law and barred from being commissioned
as notary public, both for one year, and his present commission, if any, be
revoked.[10]
According to the Investigating Justice, the respondent did not adduce
evidence in his defense, while the complainant presented documentary
evidence to support the charges:
It is noteworthy that in his answer, respondent did not claim that he was
commissioned as notary public for the years 1980 to 1983 nor deny the
accuracy of the first certification. He merely alleged that there was no
proper recording of the commissioned lawyers in the City of Cagayan de
Oro nor of the submitted Notarized Documents/Notarial Register. And, as
already observed, he presented no evidence, particularly on his
appointment as notary public for 1980 to 1983 (assuming he was so
commissioned) and submission of notarial reports and notarial register.
On the other hand, the second certification shows that there were only
two Record Books available in the notarial section of the RTC of Misamis
Oriental (Cagayan de Oro City); and that the (f)irst book titled Petitions for
Notarial Commission contains items on the Name, Date Commission was
issued and Expiration of Commission of the notary public. First entry
appearing was made on December 1982.
If respondent was commissioned in 1980 to 1983, then the first book
would disclose so (at least, for the years 1982 and 1983). However, he did
not present said book. Neither did he present a certification from the Clerk
of Court, RTC of Misamis Oriental, or documents from his files showing
that he was commissioned in 1980 to 1983. Similarly, he did not submit a
certificate of appointment for all those years. Under Section 238 of the
Notarial Law, such certificate must be prepared and forwarded by the
Clerk of Court, RTC, to the Office of the Solicitor General, together with the
oath of office of the notary public.[11]
 Thus, the Investigating Justice concluded, based on the evidence
presented by the complainant, that the respondent notarized documents
in 1980 and 1983 without being commissioned as a notary public therefor,
considering that his earliest commission of record was on January 9, 1984.[12]
The Procedural Issues
Before the Court passes upon the merits of the instant complaint, a
brief backgrounder.
On the Applicability of
Resolution A.M. No. 02-
9-02-SC
On September 17, 2002, we issued Resolution A.M. No. 02-9-02-
SC,[13] to wit:
Some administrative cases against Justices of the Court of Appeals and the
Sandiganbayan; judges of regular and special courts; and the court officials
who are lawyers are based on grounds which are likewise grounds for the
disciplinary action of members of the Bar for violation of the Lawyers Oath,
the Code of Professional Responsibility, and the Canons of Professional
Ethics, or for such other forms of breaches of conduct that have been
traditionally recognized as grounds for the discipline of lawyers.
In any of the foregoing instances, the administrative case shall also be
considered a disciplinary action against the respondent justice, judge or
court official concerned as a member of the Bar. The respondent may
forthwith be required to comment on the complaint and show cause why
he should not also be suspended, disbarred or otherwise disciplinary
sanctioned as a member of the Bar. Judgment in both respects may be
incorporated in one decision or resolution.
Before the Court approved this resolution, administrative and
disbarment cases against members of the bar who were likewise members
of the court were treated separately. Thus, pursuant to the new rule,
administrative cases against erring justices of the CA and the
Sandiganbayan, judges, and lawyers in the government service may be
automatically treated as disbarment cases. The Resolution, which took
effect on October 1, 2002, also provides that it shall supplement Rule 140 of
the Rules of Court, and shall apply to administrative cases already filed
where the respondents have not yet been required to comment on the
complaints.
Clearly, the instant case is not covered by the foregoing resolution,
since the respondent filed his Answer/Comment on June 13, 2001.
The Procedure To Be Followed
In Disbarment Cases Involving
A Retired Judge For Acts
Committed While He Was Still
A Practicing Lawyer
The undisputed facts are as follows: (1) the respondent is a retired
judge; (2) the complainant prays for his disbarment; and (3) the acts
constituting the ground for disbarment were committed when the
respondent was still a practicing lawyer, before his appointment to the
judiciary. Thus, the respondent is being charged not for acts committed as a
judge; he is charged, as a member of the bar, with notarizing documents
without the requisite notarial commission therefor.
Section 1, Rule 139-B of the Rules of Court on Disbarment and
Discipline of Attorneys provides:
Section 1. Proceedings for the disbarment, suspension, or discipline of
attorneys may be taken by the Supreme Court motu proprio, or by the
Integrated Bar of the Philippines (IBP) upon verified complaint of any
person. The complaint shall state clearly, and concisely the facts
complained of and shall be supported by affidavits of persons having
personal knowledge of the facts therein alleged and/or by such documents recommendation to the Solicitor General, any officer of the court or a judge
as may substantiate said facts. of a lower court, on which the Court will thereafter base its final action.[15]
Although the respondent has already retired from the judiciary, he is
The IBP Board of Governors may, motu proprio or upon referral by the
still considered as a member of the bar and as such, is not immune to the
Supreme Court or by a Chapter Board of Officers, or at the instance of any
disciplining arm of the Supreme Court, pursuant to Article VIII, Section 6[16]of
person, initiate and prosecute proper charges against erring attorneys
the 1987 Constitution. Furthermore, at the time of the filing of the
including those in the government service: Provided, however, That all
complaint, the respondent was still the presiding judge of the Regional Trial
charges against Justices of the Court of Tax Appeals and lower courts, even
Court, Branch 19, Cagayan de Oro City. As such, the complaint was
if lawyers are jointly charged with them, shall be filed with the Supreme
cognizable by the Court itself, as the Rule mandates that in case the
Court: Provided, further, That charges filed against Justices and Judges
respondent is a justice of the Court of Tax Appeals or the lower court, the
before the IBP, including those filed prior to their appointment to the
complaint shall be filed with the Supreme Court.[17]
Judiciary, shall be immediately forwarded to the Supreme Court for
disposition and adjudication.[14]

The investigation may thereafter commence either before the
Integrated Bar of the Philippines (IBP), in accordance with Sections 2 to
Sections 12 of Rule 139-B, or before the Supreme Court in accordance with
Sections 13 and 14, thus:
Section 13. Supreme Court Investigators. - In proceedings
initiated motu proprio by the Supreme Court or in other proceedings when
the interest of justice so requires, the Supreme Court may refer the case
for investigation to the Solicitor General or to any officer of the Supreme
Court or judge of a lower court, in which case the investigation shall
proceed in the same manner provided in Sections 6 to 11 hereof, save that
the review of the report shall be conducted directly by the Supreme Court.
Section 14. Report of the Solicitor General or other Court designated
Investigator. Based upon the evidence adduced at the investigation, the
Solicitor General or other Investigator designated by the Supreme Court
shall submit to the Supreme Court a report containing his findings of fact
and recommendations together with the record and all the evidence
presented in the investigation for the final action of the Supreme Court.
It is clear from the Rules then that a complaint for disbarment is
cognizable by the Court itself, and its indorsement to the IBP is not
mandatory. The Court may refer the complaint for investigation, report and
The Substantive Issues
The Retirement Or Resignation
Of A Judge Will Not Preclude
The Filing Thereafter Of An
Administrative Charge Against
Him For Which He Shall Still
Be Held Answerable If Found
Liable Therefor
The fact that a judge has retired or has otherwise been separated from
the service does not necessarily divest the Court of its jurisdiction to
determine the veracity of the allegations of the complaint, pursuant to its
disciplinary authority over members of the bench. As we held in Gallos v.
Cordero:[18]
The jurisdiction that was ours at the time of the filing of the administrative
complaint was not lost by the mere fact that the respondent, had ceased in
office during the pendency of his case. The Court retains jurisdiction either
to pronounce the respondent public official innocent of the charges or
declare him guilty thereof. A contrary rule would be fraught with injustice
and pregnant with dreadful and dangerous implications... If innocent,
respondent public official merits vindication of his name and integrity as he
leaves the government which he has served well and faithfully; if guilty, he
deserves to receive the corresponding censure and a penalty proper and
imposable under the situation.[19]
However, recognizing the proliferation of unfounded or malicious
administrative or criminal cases against members of the judiciary for
purposes of harassment, we issued A.M. No. 03-10-01-SC[20] which took
effect on November 3, 2003. It reads in part:
1. If upon an informal preliminary inquiry by the Office of the Court
Administrator, an administrative complaint against any Justice of the Court
of Appeals or Sandiganbayan or any Judge of the lower courts filed in
connection with a case in court is shown to be clearly unfounded and
baseless and intended to harass the respondent, such a finding should be
included in the report and recommendation of the Office of the Court
Administrator. If the recommendation is approved or affirmed by the
Court, the complainant may be required to show cause why he should not
be held in contempt of court. If the complainant is a lawyer, he may
further be required to show cause why he or she should not be
administratively sanctioned as a member of the Bar and as an officer of the
court.
2. If the complaint is (a) filed within six months before the compulsory
retirement of a Justice or Judge; (b) for an alleged cause of action that
occurred at least a year before such filing and (c) shown prima facie that it
is intended to harass the respondent, it must forthwith be recommended
for dismissal. If such is not the case, the Office of the Court Administrator
must require the respondent to file a comment within ten (10) days from
receipt of the complaint, and submit to the Court a report and
recommendation not later than 30 days from receipt of the comment. The
Court shall act on the recommendation before the date of compulsory
retirement of the respondent, or if it is not possible to do so, within six (6)
months from such date without prejudice to the release of the retirement
benefits less such amount as the Court may order to be withheld, taking
into account the gravity of the cause of action alleged in the complaint.
Thus, in order for an administrative complaint against a retiring or
retired judge or justice to be dismissed outright, the following requisites
must concur: (1) the complaint must have been filed within six months from
the compulsory retirement of the judge or justice; (2) the cause of action
must have occurred at least a year before such filing; and, (3) it is shown that
the complaint was intended to harass the respondent.
In this case, the Administrative Complaint dated March 21, 2001 was
received by the Office of the Court Administrator on March 26, 2001.[21] The
respondent retired compulsorily from the service more than a year later, or
on May 22, 2002. Likewise, the ground for disbarment or disciplinary action
alleged to have been committed by the respondent did not occur a year
before the respondents separation from the service. Furthermore, and most
importantly, the instant complaint was not prima facie shown to be without
merit and intended merely to harass the respondent. Clearly, therefore, the
instant case does not fall within the ambit of the foregoing resolution.
A Judge May Be Disciplined
For Acts Committed Before His
Appointment To The Judiciary
It is settled that a judge may be disciplined for acts committed prior to
his appointment to the judiciary.[22] In fact, even the new Rule
itself recognizes this, as it provides for the immediate forwarding to the
Supreme Court for disposition and adjudication of charges against justices
and judges before the IBP, including those filed prior to their appointment to
the judiciary.[23] It need not be shown that the respondent continued the
doing of the act or acts complained of; it is sufficient that the evidence on
record supports the charge on the respondent, considering the gravity of
the offense.
Indeed, there is jurisprudence to the effect that the act complained of
must be continuing in order for the respondent judge to be disciplined
therefor. In Sevilla v. Salubre,[24] the respondent judge was charged with
violating Canon 16 of the Code of Professional Responsibility, for acts
committed while he was still a practicing lawyer. The respondent therein
refused to turn over the funds of his client despite demands, and persisted
in his refusal even after he was appointed as a judge. However, the Court
also stated in this case that the respondents subsequent appointment as a
judge will not exculpate him from taking responsibility for the consequences
of his acts as an officer of the court.[25]
In the case of Alfonso v. Juanson,[26] we held that proof of prior
immoral conduct cannot be used as basis for administrative discipline
against a judge if he is not charged with immorality prior to his
appointment. We ratiocinated, thus:
...[I]t would be unreasonable and unfair to presume that since he had
wandered from the path of moral righteousness, he could never retrace his
steps and walk proud and tall again in that path. No man is beyond
information and redemption. A lawyer who aspires for the exalted position
of a magistrate knows, or ought to know, that he must pay a high price for
that honor - his private and official conduct must at all times be free from
the appearance of impropriety. ...[27]
The Court ruled in that case that the complainant failed to prove the
charges by substantial evidence.[28] The complainant therein presented
evidence pertaining to the respondents previous indiscretion while still a
practicing lawyer; no evidence was, however, adduced to prove that the
latter continued to engage in illicit acts after being appointed to the
bench. Thus, the respondent was exonerated in this case because the
complainant failed to present evidence that the indiscretion continued even
after the respondent was appointed to the judiciary.
The practice of law is so ultimately affected with public interest that it
is both the right and duty of the State to control and regulate it in order to
promote the public welfare. The Constitution vests this power of control and
regulation in this Court.[29] The Supreme Court, as guardian of the legal
profession, has ultimate disciplinary power over attorneys, which authority
is not only a right but a bounden duty as well. This is why respect and fidelity
to the Court is demanded of its members.[30]
Notarizing Documents Without
The Requisite Commission
Therefore Constitutes
Malpractice, If Not The Crime
Of Falsification Of Public
Documents
It must be remembered that notarization is not an empty,
meaningless, routinary act. On the contrary, it is invested with substantive
public interest, such that only those who are qualified or authorized may act
as notaries public.[31]Notarization by a notary public converts a private
document into a public one, making it admissible in evidence without the
necessity of preliminary proof of its authenticity and due execution.[32]
The requirements for the issuance of a commission as notary public
must not be treated as a mere casual formality.[33] The Court has
characterized a lawyers act of notarizing documents without the requisite
commission therefore as reprehensible, constituting as it does not only
malpractice, but also the crime of falsification of public documents. [34] For
such reprehensible conduct, the Court has sanctioned erring lawyers by
suspension from the practice of law, revocation of the notarial commission
and disqualification from acting as such, and even disbarment.[35]
In the case of Nunga v. Viray,[36] the Court had the occasion to state -
Where the notarization of a document is done by a member of the
Philippine Bar at a time when he has no authorization or commission to do
so, the offender may be subjected to disciplinary action. For one,
performing a notarial [act] without such commission is a violation of the
lawyers oath to obey the laws, more specifically, the Notarial Law. Then,
too, by making it appear that he is duly commissioned when he is not, he is,
for all legal intents and purposes, indulging in deliberate falsehood, which
the lawyers oath similarly proscribes. These violations fall squarely within
the prohibition of Rule 1.01 of Canon 1 of the Code of Professional
Responsibility, which provides: A lawyer shall not engage in unlawful,
dishonest, immoral or deceitful conduct.[37]
The importance of the function of a notary public cannot, therefore,
be over-emphasized. No less than the public faith in the integrity of public
documents is at stake in every aspect of that function.[38]
The Charge Against The
Respondent Is Supported By
The Evidence On Record
The respondent did not object to the complainants formal offer of
evidence, prompting the Investigating Justice to decide the case on the basis
of the pleadings filed.[39] Neither did he claim that he was commissioned as
notary public for the years 1980 to 1983, nor deny the accuracy of the first
certification. The respondent merely alleged in his answer that there was no
proper recording of the commissioned lawyers in the City of Cagayan de Oro
nor of the submitted Notarized Documents/Notarial Register. Furthermore,
as found by the Investigating Justice, the respondent presented no evidence
of his commission as notary public for the years 1980 to 1983, as well as
proof of submission of notarial reports and the notarial register. [40]
The respondent in this case was given an opportunity to answer the
charges and to controvert the evidence against him in a formal
investigation. When the integrity of a member of the bar is challenged, it is
not enough that he deny the charges; he must meet the issue and overcome
the evidence against him.[41]
The respondents allegation that the complainant was not a party in any
of the documents so notarized, and as such was not prejudiced thereby, is
unavailing. An attorney may be disbarred or suspended for any violation of
his oath or of his duties as an attorney and counselor which include the
statutory grounds under Section 27, Rule 138[42] of the Revised Rules of
Court. Any interested person or the court motu proprio may initiate
disciplinary proceedings. There can be no doubt as to the right of a citizen
to bring to the attention of the proper authority acts and doings of public
officers which citizens feel are incompatible with the duties of the office and
from which conduct the citizen or the public might or does suffer
undesirable consequences.[43]
An Administrative Complaint
Against A Member Of The Bar
Does Not Prescribe
The qualification of good moral character is a requirement which is not
dispensed with upon admission to membership of the bar. 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. It is a continuing requirement to the practice of law and
therefore does not preclude a subsequent judicial inquiry, upon proper
complaint, into any question concerning ones 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.[44] 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. Possession of good moral character is not only a prerequisite to
admission to the bar but also a continuing requirement to the practice of
law.[45]
Furthermore, administrative cases against lawyers belong to a class of
their own, distinct from and may proceed independently of civil and criminal
cases.[46] As we held in the leading case of In re Almacen:[47]
[D]isciplinary proceedings against lawyers are sui generis. Neither purely
civil nor purely criminal, they do not involve a trial of an action or a suit,
but are rather investigations by the Court into the conduct of one of its
officers. Not being intended to inflict punishment, [they are] in no sense a
criminal prosecution. Accordingly, there is neither a plaintiff nor a
prosecutor therein. [They] may be initiated by the Court motu proprio.
Public interest is [their] primary objective, and the real question for
determination is whether or not the attorney is still a fit person to be
allowed the privileges as such. Hence, in the exercise of its disciplinary
powers, the Court merely calls upon a member of the Bar to account for
his actuations as an officer of the Court with the end in view of preserving
the purity of the legal profession and the proper and honest administration
of justice by purging the profession of members who by their misconduct
have prove[n] themselves no longer worthy to be entrusted with the
duties and responsibilities pertaining to the office of an attorney. .... [48]
In a case involving a mere court employee[49] the Court disregarded the
Court Administrators recommendation that the charge for immorality
against the respondent be dismissed on the ground that the complainants
failed to adduce evidence that the respondents immoral conduct was still
ongoing. Aside from being found guilty of illicit conduct, the respondent was
also found guilty of dishonesty for falsifying her childrens certificates of live
birth to show that her paramour was the father. The complaint in this case
was filed on August 5, 1999, almost twenty years after the illicit affair
ended.[50] The Court held that administrative offenses do not prescribe. [51]
Pursuant to the foregoing, there can be no other conclusion than that
an administrative complaint against an erring lawyer who was thereafter
appointed as a judge, albeit filed only after twenty-four years after the
offending act was committed, is not barred by prescription. If the rule were
otherwise, members of the bar would 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. It is the duty of this Court to protect the integrity of the
practice of law as well as the administration of justice. No matter how much
time has elapsed from the time of the commission of the act complained of
and the time of the institution of the complaint, erring members of the
bench and bar cannot escape the disciplining arm of the Court. This
categorical pronouncement is aimed at unscrupulous members of the bench
and bar, to deter them from committing acts which violate the Code of
Professional Responsibility, the Code of Judicial Conduct, or the Lawyers
Oath. This should particularly apply in this case, considering the seriousness
of the matter involved - the respondents dishonesty and the sanctity of
notarial documents.
Thus, even 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 who notarizes documents
without the requisite authority therefor.
At Most, The Delay In The
Institution Of The
Administrative Case Would
Merely Mitigate The
Respondents Liability
Time and again, we have stressed the settled principle that the practice
of law is not a right but a privilege bestowed by the State on those who show
that they possess the qualifications required by law for the conferment of
such privilege. Membership in the bar is a privilege burdened with
conditions. A high sense of morality, honesty, and fair dealing is expected
and required of a member of the bar. [52] By his actuations, the respondent
failed to live up to such standards;[53] he undermined the confidence of the
public on notarial documents and thereby breached Canon I of the Code of
Professional Responsibility, which requires lawyers to uphold the
Constitution, obey the laws of the land and promote respect for the law and
legal processes. The respondent also violated Rule 1.01 thereof which
proscribes lawyers from engaging in unlawful, dishonest, immoral or
deceitful conduct.[54] In representing that he was possessed of the requisite
notarial commission when he was, in fact, not so authorized, the respondent
also violated Rule 10.01 of the Code of Professional Responsibility and his
oath as a lawyer that he shall do no falsehood.
The supreme penalty of disbarment is meted out only in clear cases of
misconduct that seriously affect the standing and character of the lawyer as
an officer of the court. While we will not hesitate to remove an erring
attorney from the esteemed brotherhood of lawyers where the evidence
calls for it, we will likewise not disbar him where a lesser penalty will suffice
to accomplish the desired end.[55] Furthermore, a tempering of justice is
mandated in this case, considering that the complaint against the
respondent was filed twenty-four years after the commission of the act
complained of;[56] that there was no private offended party who came
forward and claimed to have been adversely affected by the documents so
notarized by the respondent; and, the fact that the respondent is a retired
judge who deserves to enjoy the full measure of his well-earned retirement
benefits.[57] The Court finds that a fine of P5,000.00 is justified in this case.
WHEREFORE, respondent Judge Anthony E. Santos is found GUILTY of
notarizing documents without the requisite notarial commission therefor.
He is hereby ORDERED to pay a fine in the amount of Five Thousand Pesos
(P5,000.00).
SO ORDERED.
Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, and Tinga,
JJ., concur.
Davide, Jr., C.J., join Mr. Justice J. C. Vitug in his separate opinion.
Vitug, J., see separate opinion.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.C. No. 6470 July 8, 2014
MERCEDITA DE JESUS, Complainant,
vs.
ATTY. JUVY MELL SANCHEZMALIT, Respondent.
RESOLUTION
SERENO, CJ:
Before the Court is a disbarment complaint filed by Mercedita De Jesus (De
Jesus) against respondent Atty. Juvy Mell Sanchez-Malit (Sanchez-Malit) on
the following grounds: grave misconduct, dishonesty, malpractices, and
unworthiness to become an officer of the Court.
THE FACTS OF THE CASE
In the Affidavit-Complaint1 filed by complainant before the Office of the
Bar Confidant on 23 June 2004, she alleged that on 1 March 2002,
respondent had drafted and notarized a Real Estate Mortgage of a public
market stall that falsely named the former as its absolute and registered
owner. As a result, the mortgagee sued complainant for perjury and for
collection of sum of money. She claimed that respondent was a consultant
of the local government unit of Dinalupihan, Bataan, and was therefore
aware that the market stall was government-owned. Prior thereto,
respondent had also notarized two contracts that caused complainant
legal and financial problems. One contract was a lease agreement
notarized by respondent sometime in September 1999 without the
signature of the lessees. However, complainant only found out that the
agreement had not been signed by the lessees when she lost her copy and
she asked for another copy from respondent. The other contract was a sale
agreement over a property covered by a Certificate of Land Ownership
Award (CLOA) which complainant entered into with a certain Nicomedes
Tala (Tala) on 17 February 1998. Respondent drafted and notarized said
agreement, but did not advise complainant that the property was still
covered by the period within which it could not be alienated.
In addition to the documents attached to her complaint, complainant
subsequently submitted three Special Powers of Attorney (SPAs) notarized
by respondent and an Affidavit of Irene Tolentino (Tolentino),
complainant’s secretary/treasurer. The SPAs were not signed by the
principals named therein and bore only the signature of the named
attorneyin-fact, Florina B. Limpioso (Limpioso). Tolentino’s Affidavit
corroborated complainant’s allegations against respondent.2
On 4 August 2004, the Second Division of the Supreme Court issued a
Resolution requiring respondent to submit her comment on the Complaint
within ten (10) days from receipt of notice.3
In her Comment,4 respondent explained thatthe mortgage contract was
prepared in the presence of complainant and that the latter had read it
before affixing her signature. However, complainant urgently needed the
loan proceeds so the contract was hastily done. It was only copied from a
similar file in respondent’s computer, and the phrase "absolute and
registered owner" was inadvertently left unedited. Still, it should not be a
cause for disciplinary action, because complainant constructed the subject
public market stall under a "Build Operate and Transfer" contract with the
local government unit and, technically, she could be considered its owner.
Besides, there had been a prior mortgage contract over the same property
in which complainant was represented as the property’s absolute owner,
but she did not complain. Moreover, the cause of the perjury charge
against complainant was not the representation ofherself as owner of the
mortgaged property, but her guarantee that it was free from all liens and
encumbrances. The perjury charge was even dismissed, because the
prosecutor found that complainant and her spouse had, indeed, paid the
debt secured with the previous mortgage contract over the same market
stall.
With respect to the lease agreement, respondent countered that the
document attached to the Affidavit-Complaint was actually new. She gave
the court’s copy of the agreement to complainant to accommodate the
latter’s request for an extra copy. Thus, respondent prepared and
notarized a new one, relying on complainant’s assurance that the lessees
would sign it and that it would be returned in lieu of the original copy for
the court. Complainant, however, reneged on her promise.
As regards the purchase agreement of a property covered by a CLOA,
respondent claimed that complainant was an experienced realty broker
and, therefore, needed no advice on the repercussions of that transaction.
Actually, when the purchase agreement was notarized, complainant did
not present the CLOA, and so the agreement mentioned nothing about it.
Rather, the agreement expressly stated that the property was the subject
of a case pending before the Department of Agrarian Reform Adjudication
Board (DARAB); complainant was thus notified of the status of the subject
property. Finally, respondent maintained that the SPAs submitted by
complainant as additional evidence wereproperly notarized. It can be
easily gleaned from the documents that the attorney-in-fact personally
appeared before respondent; hence,the notarization was limited to the
former’s participation in the execution ofthe document. Moreover, the
acknowledgment clearly stated that the document must be notarized in
the principal’s place of residence.
An exchange of pleadings ensuedafter respondent submitted her
Comment. After her rejoinder, complainant filed an Urgent Ex-ParteMotion
for Submission of Additional Evidence.5 Attached thereto were copies of
documents notarized by respondent, including the following: (1) an Extra
Judicial Deed of Partition which referred to the SPAs naming Limpioso as
attorney-in-fact; (2) five SPAs that lacked the signatures of either the
principal or the attorney-in-fact; (3) two deeds of sale with incomplete
signatures of the parties thereto; (4) an unsigned Sworn Statement; (5) a
lease contract that lacked the signature of the lessor; (6) five unsigned
Affidavits; (7) an unsigned insurance claim form (Annual Declaration by the
Heirs); (8) an unsigned Invitation Letter toa potential investor in Japan; (9)
an unsigned Bank Certification; and (10)an unsigned Consent to Adoption.
After the mandatory conference and hearing, the parties submitted their
respective Position Papers.6 Notably, respondent’s Position Paper did not
tackle the additional documents attached to complainant’s Urgent Ex
ParteMotion.
THE FINDINGS OF THE IBP
In his 15 February 2008 Report, IBP Investigating Commissioner Leland R.
Villadolid, Jr. recommended the immediate revocation of the Notarial
Commission of respondent and her disqualification as notary public for two
years for her violation of her oath as such by notarizing documents without
the signatures of the parties who had purportedly appeared before her. He
accepted respondent’s explanations with respect to the lease agreement,
sale contract, and the three SPAs pertaining to Limpioso. However, he
found that the inaccurate crafting of the real estate mortgage contract was
a sufficient basis to hold respondent liable for violation of Canon 18 7 and
Rule 18.038of the Code of Professional Responsibility. Thus, he also
recommended that she besuspended from the practice of law for six
months.9
The IBP Board of Governors, inits Resolution No. XVIII-2008-245 dated 22
May 2008, unanimously adopted and approved the Report and
Recommendation of the Investigating Commissioner, with the modification
that respondent be suspended from the practice of law for one year. 10
Respondent filed her first Motion for Reconsideration11 and Second
Motion for Reconsideration.12 She maintained that the additional
documents submitted by complainant were inadmissible, as they were
obtained without observing the procedural requisites under Section 4, Rule
VI of Adm. No. 02-08-13 SC (2004 Rules on Notarial Practice).13Moreover,
the Urgent Ex ParteMotion of complainant was actually a supplemental
pleading, which was prohibited under the rules of procedure of the
Committee on Bar Discipline; besides, she was not the proper party to
question those documents. Hence, the investigating commissioner should
have expunged the documents from the records, instead of giving them
due course. Respondent also prayed that mitigating circumstances be
considered, specifically the following: absence of prior disciplinary record;
absence of dishonest or selfish motive; personal and emotional problems;
timely goodfaith effort to make restitution or to rectify the consequences
of her misconduct; full and free disclosure to the disciplinary board or
cooperative attitude toward the proceedings; character or reputation;
remorse; and remoteness of prior offenses.
The IBP Board of Governors, inits Resolution No. XX-2012-119 dated 10
March 2012, deniedrespondent’s motion for reconsideration for lack of
substantial reason to justify a reversal of the IBP’s findings. 14
Pursuant to Rule 139-B of the Rules of Court, Director for Bar Discipline
Pura Angelica Y. Santiago – through a letter addressed to then acting Chief
Justice Antonio T. Carpio – transmitted the documents pertaining to the
disbarment Complaint against respondent.15
THE COURT’S RULING
After carefully reviewing the merits of the complaint against respondent
and the parties’ submissions in this case, the Court hereby modifies the
findings of the IBP.
Before going into the substance of the charges against respondent, the
Court shall first dispose of some procedural matters raised by respondent.
Respondent argues that the additional documents submitted in evidence
by complainant are inadmissible for having been obtained in violation of
Section 4, Rule VI of the 2004 Rules on Notarial Practice. A comparable
argument was raised in Tolentino v. Mendoza,16 in which the respondent
therein opposed the admission of the birth certificates of his illegitimate
children as evidence of his grossly immoral conduct, because those
documents were obtained in violation Rule 24, Administrative Order No. 1,
Series of 1993.17 Rejecting his argument, the Court reasoned as follows:
Section 3, Rule 128 of the Revised Rules on Evidence provides that
"evidence is admissible when it isrelevant to the issue and is not excluded
by the law or these rules." There could be no dispute that the subject birth
certificates are relevant to the issue. The only question, therefore, is
whether the law or the rules provide for the inadmissibility of said birth
certificates allegedly for having been obtained in violation of Rule 24,
Administrative Order No. 1, series of 1993.
Note that Rule 24, Administrative Order No. 1, series of 1993 only provides
for sanctions against persons violating the ruleon confidentiality of birth
records, but nowhere does itstate that procurement of birth records in
violation of said rule would render said records inadmissible in evidence.
On the other hand, the Revised Rules of Evidence only provides for the
exclusion of evidence if it is obtained as a result of illegal searches and
seizures. It should be emphasized, however, that said rule against
unreasonable searches and seizures is meant only to protect a person from
interference by the government or the state. In People vs. Hipol, we
explained that: The Constitutional proscription enshrined in the Bill of
Rights does not concern itself with the relation between a private
individual and another individual. It governs the relationship between the
individual and the State and its agents. The Bill of Rights only tempers
governmental power and protects the individual against any aggression
and unwarranted interference by any department of government and its
agencies. Accordingly, it cannot be extended to the acts complained of in
this case. The alleged "warrantless search" made by Roque, a co-employee
of appellant at the treasurer's office, can hardly fall within the ambit of the
constitutional proscription on unwarranted searches and seizures.
Consequently, in this case where complainants, as private individuals,
obtained the subject birth records as evidence against respondent, the
protection against unreasonable searches and seizures does not apply.
Since both Rule 24, Administrative Order No. 1, series of 1993 and the
Revised Rules on Evidence do not provide for the exclusion from evidence
of the birth certificates inquestion, said public documents are, therefore,
admissible and should be properly taken into consideration in the
resolution of this administrative case against respondent.18
Similarly, the 2004 Rules on Notarial Law contain no provision declaring
the inadmissibility of documents obtained in violation thereof. Thus, the
IBP correctly consideredin evidence the other notarized documents
submitted by complainant as additional evidence.
Respondent’s argument that the Urgent Ex-ParteMotion of complainant
constitutes a supplemental pleading must fail as well. As its very name
denotes, a supplemental pleading only serves to bolster or adds something
to the primary pleading. Its usual office is to set up new facts which justify,
enlarge or change the kind of relief with respect to the same subject
matter as the controversy referred to in the original
complaint.19 Accordingly, it cannot be said that the Urgent Ex-Parte Motion
filed by complainant was a supplemental pleading. One of her charges
against respondent is that the latter notarizedincomplete documents, as
shown by the SPAs and lease agreement attached to the Affidavit-
Complaint. Complainant is not legally barred from submitting additional
evidence to strengthen the basis of her complaint.
Going now into the substance of the charges against respondent, the Court
finds that she committed misconduct and grievously violated her oath as a
notary public.
The important role a notary public performs cannot be overemphasized.
The Court has repeatedlystressed that notarization is not an empty,
meaningless routinary act, but one invested with substantive public
interest. Notarization converts a private document into a public document,
making it admissible in evidence without further proof of its authenticity.
Thus, a notarized document is, by law, entitled tofull faith and credit upon
its face. It is for this reason that a notary public must observe with utmost
care the basic requirements in the performance of his notarial duties;
otherwise, the public's confidence in the integrity of a notarized document
would be undermined.20
Where the notary public admittedly has personal knowledge of a false
statement or information contained in the instrument to be notarized, yet
proceeds to affix the notarial seal on it, the Court must not hesitate to
discipline the notary public accordingly as the circumstances of the case
may dictate. Otherwise, the integrity and sanctity of the notarization
process may be undermined, and public confidence in notarial documents
diminished.21 In this case, respondent fully knew that complainant was not
the owner of the mortgaged market stall. That complainant
comprehended the provisions of the real estate mortgage contractdoes
not make respondent any less guilty. If at all, it only heightens the latter’s
liability for tolerating a wrongful act. Clearly, respondent’s conduct
amounted to a breach of Canon 122 and Rules 1.0123 and 1.0224 of the Code
of Professional Responsibility.
Respondent’s explanation about the unsigned lease agreement executed
by complainant sometime in September 199925 is incredulous. If, indeed,
her file copy of the agreement bore the lessees’ signatures, she could have
given complainant a certified photocopy thereof. It even appears that said
lease agreement is not a rarityin respondent’s practice as a notary public.
Records show that on various occasions from 2002 to 2004, respondent
has notarized 22 documents that were either unsigned or lacking
signatures of the parties. Technically, each document maybe a ground for
disciplinary action, for it is the duty of a notarial officer to demand that a
document be signed in his or her presence. 26
A notary public should not notarize a document unless the persons who
signed it are the very same ones who executed it and who personally
appeared before the said notary public to attest to the contents and truth
of what are stated therein.27 Thus, in acknowledging that the parties
personally came and appeared before her, respondent also violated Rule
10.0128 of the Code of Professional Responsibility and her oath as a lawyer
that she shall do no falsehood.29 Certainly, respondent is unfit to continue
enjoying the solemn office of a notary public. In several instances, the
Court did not hesitate to disbar lawyers who were found to be utterly
oblivious to the solemnity of their oath as notaries public.30 Even so, the
rule is that disbarment is meted out only in clear cases of misconduct that
seriously affect the standing and character of the lawyer as an officer of
the court and the Court will not disbar a lawyer where a lesser penalty will
suffice to accomplish the desired end.31 The blatmt disregard by
respondent of her basic duties as a notary public warrants the less severe
punishment of suspension from the practice of law and perpetual
disqualification to be commissioned as a notary public.
WHEREFORE, respondent Atty. Juvy Mell Sanchez-Malit is found guilty of
violating Canon 1 and Rules 1.01, 1.02, and 10.01 of the Code of
Professional Responsibility as well as her oath as notary public. Hence, she
is SUSPENDED from the practice of law for ONE YEAR effective
immediately. Her notarial commission, if still existing, is IMMEDIATELY
REVOKED and she is hereby PERPETUALLY DISQUALIFIED from being
commissioned as a notary public.
Let copies of this Resolution be entered into the personal records of
respondent as a member of the bar and furnished to the Bar Confidant, the
Integrated Bar of the Philippines, and the Court Administrator for
circulation to all courts of the country for their information and guidance.
No costs.
SO ORDERED.
MARIA LOURDES P. A. SERENO
Chief Justice, Chairperson
EN BANC
A.C. No. 5816, March 10, 2015
DR. ELMAR O. PEREZ, Complainant, v. ATTY. TRISTAN A. CATINDIG AND
ATTY. KAREN E. BAYDO, Respondents.
DECISION
PER CURIAM:
Before the Court is an administrative complaint1 for disbarment filed by Dr.
Elmar O. Perez (Dr. Perez) with the Office of the Bar Confidant on August
27, 2002 against Atty. Tristan A. Catindig (Atty. Catindig) and Atty. Karen E.
Baydo (Atty. Baydo) (respondents) for gross immorality and violation of the
Code of Professional Responsibility.
The Facts
In her complaint, Dr. Perez alleged that she and Atty. Catindig had been
friends since the mid-1960’s when they were both students at the
University of the Philippines, but they lost touch after their graduation.
Sometime in 1983, the paths of Atty. Catindig and Dr. Perez again crossed.
It was at that time that Atty. Catindig started to court Dr.
Perez.2chanroblesvirtuallawlibrary
Atty. Catindig admitted to Dr. Perez that he was already wed to Lily
Corazon Gomez (Gomez), having married the latter on May 18, 1968 at the
Central Methodist Church in Ermita, Manila, which was followed by a
Catholic wedding at the Shrine of Our Lady of Lourdes in Quezon
City.3 Atty. Catindig however claimed that he only married Gomez because
he got her pregnant; that he was afraid that Gomez would make a scandal
out of her pregnancy should he refuse to marry her, which could have
jeopardized his scholarship in the Harvard Law
School.4chanroblesvirtuallawlibrary
Atty. Catindig told Dr. Perez that he was in the process of obtaining a
divorce in a foreign country to dissolve his marriage to Gomez, and that he
would eventually marry her once the divorce had been decreed.
Consequently, sometime in 1984, Atty. Catindig and Gomez obtained a
divorce decree from the Dominican Republic. Dr. Perez claimed that Atty.
Catindig assured her that the said divorce decree was lawful and valid and
that there was no longer any impediment to their
marriage.5chanroblesvirtuallawlibrary
Thus, on July 14, 1984, Atty. Catindig married Dr. Perez in the State of
Virginia in the United States of America (USA). Their union was blessed
with a child whom they named Tristan Jegar Josef
Frederic.6chanroblesvirtuallawlibrary
Years later, Dr. Perez came to know that her marriage to Atty. Catindig is a
nullity since the divorce decree that was obtained from the Dominican
Republic by the latter and Gomez is not recognized by Philippine laws.
When she confronted Atty. Catindig about it, the latter allegedly assured
Dr. Perez that he would legalize their union once he obtains a declaration
of nullity of his marriage to Gomez under the laws of the Philippines. He
also promised to legally adopt their son.7chanroblesvirtuallawlibrary
Sometime in 1997, Dr. Perez reminded Atty. Catindig of his promise to
legalize their union by filing a petition to nullify his marriage to Gomez.
Atty. Catindig told her that he would still have to get the consent of Gomez
to the said petition.8chanroblesvirtuallawlibrary
Sometime in 2001, Dr. Perez alleged that she received an anonymous
letter9 in the mail informing her of Atty. Catindig’s scandalous affair with
Atty. Baydo, and that sometime later, she came upon a love
letter10 written and signed by Atty. Catindig for Atty. Baydo dated April 25,
2001. In the said letter, Atty. Catindig professed his love to Atty. Baydo,
promising to marry her once his “impediment is removed.” Apparently,
five months into their relationship, Atty. Baydo requested Atty. Catindig to
put a halt to their affair until such time that he is able to obtain the
annulment of his marriage. On August 13, 2001, Atty. Catindig filed a
petition to declare the nullity of his marriage to
Gomez.11chanroblesvirtuallawlibrary
On October 31, 2001, Atty. Catindig abandoned Dr. Perez and their son; he
moved to an upscale condominium in Salcedo Village, Makati City where
Atty. Baydo was frequently seen.12chanroblesvirtuallawlibrary
In a Resolution13 dated October 9, 2002, the Court directed the
respondents to file their respective comments, which they separately did
on November 25, 2002.14chanroblesvirtuallawlibrary
Atty. Catindig, in his Comment,15 admitted that he married Gomez on May
18, 1968. He claimed, however, that immediately after the wedding,
Gomez showed signs that she was incapable of complying with her marital
obligations, as she had serious intimacy problems; and that while their
union was blessed with four children, their relationship simply
deteriorated.
Eventually, their irreconcilable differences led to their de facto separation
in 1984. They then consulted Atty. Wilhelmina Joven (Atty. Joven), a
mutual friend, on how the agreement to separate and live apart could be
implemented. Atty. Joven suggested that the couple adopt a property
regime of complete separation of property. She likewise advised the
couple to obtain a divorce decree from the Dominican Republic for
whatever value it may have and comfort it may provide
them.16chanroblesvirtuallawlibrary
Thus, on April 27, 1984, Atty. Catindig and Gomez each executed a Special
Power of Attorney addressed to a Judge of the First Civil Court of San
Cristobal, Dominican Republic, appointing an attorney-in-fact to institute a
divorce action under its laws. Atty. Catindig likewise admitted that a
divorce by mutual consent was ratified by the Dominican Republic court on
June 12, 1984. Further, Atty. Catindig and Gomez filed a Joint Petition for
Dissolution of Conjugal Partnership before the Regional Trial Court of
Makati City, Branch 133, which was granted on June 23,
1984.17chanroblesvirtuallawlibrary
Atty. Catindig claimed that Dr. Perez knew of the foregoing, including the
fact that the divorce decreed by the Dominican Republic court does not
have any effect in the Philippines. Notwithstanding that she knew that the
marriage of Atty. Catindig and Gomez still subsisted, Dr. Perez demanded
that Atty. Catindig marry her. Thus, Atty. Catindig married Dr. Perez in July
1984 in the USA.18chanroblesvirtuallawlibrary
Atty. Catindig claimed that Dr. Perez knew that their marriage was not
valid since his previous marriage to Gomez was still subsisting, and that he
only married Dr. Perez because he loved her and that he was afraid of
losing her if he did not. He merely desired to lend a modicum of legitimacy
to their relationship.19chanroblesvirtuallawlibrary
Atty. Catindig claimed that his relationship with Dr. Perez turned sour.
Eventually, he left their home in October 2001 to prevent any acrimony
from developing.20chanroblesvirtuallawlibrary
He denied that Atty. Baydo was the reason that he left Dr. Perez, claiming
that his relationship with Dr. Perez started to fall apart as early as 1997. He
asserted that Atty. Baydo joined his law firm only in September 1999; and
that while he was attracted to her, Atty. Baydo did not reciprocate and in
fact rejected him. He likewise pointed out that Atty. Baydo resigned from
his firm in January 2001.21chanroblesvirtuallawlibrary
For her part, Atty. Baydo denied that she had an affair with Atty. Catindig.
She claimed that Atty. Catindig began courting her while she was
employed in his firm. She however rejected Atty. Catindig’s romantic
overtures; she told him that she could not reciprocate his feelings since he
was married and that he was too old for her. She said that despite being
turned down, Atty. Catindig still pursued her, which was the reason why
she resigned from his law firm.22chanroblesvirtuallawlibrary
On January 29, 2003, the Court referred the case to the Integrated Bar of
the Philippines (IBP) for investigation, report and recommendation within
90 days from notice.23chanroblesvirtuallawlibrary
On June 2, 2003, the IBP’s Commission on Bar Discipline (CBD) issued an
Order24 setting the mandatory conference of the administrative case on
July 4, 2003, which was later reset to August 29, 2003. During the
conference, the parties manifested that they were already submitting the
case for resolution based on the pleadings already submitted. Thereupon,
the IBP-CBD directed the parties to submit their respective position papers
within 10 days from notice. Respondents Atty. Catindig and Atty. Baydo
filed their position papers on October 17, 200325 and October 20,
2003,26 respectively. Dr. Perez filed her position paper27 on October 24,
2003.
Findings of the IBP Investigating Commissioner
On May 6, 2011, after due proceedings, the Investigating Commissioner of
the IBP-CBD issued a Report and Recommendation,28 which recommended
the disbarment of Atty. Catindig for gross immorality, violation of Rule
1.01, Canon 7 and Rule 7.03 of the Code of Professional Responsibility. The
Investigating Commissioner pointed out that Atty. Catindig’s act of
marrying Dr. Perez despite knowing fully well that his previous marriage to
Gomez still subsisted was a grossly immoral and illegal conduct, which
warrants the ultimate penalty of disbarment. The Investigating
Commissioner further opined that:chanRoblesvirtualLawlibrary
In this case, the undisputed facts gathered from the evidence and the
admissions of Atty. Catindig established a pattern of grossly immoral
conduct that warrants fustigation and his disbarment. His conduct was not
only corrupt or unprincipled; it was reprehensible to the highest degree.
There is no dichotomy of morality. A lawyer and a professor of law, both in
his official and personal conduct, must display exemplary behavior.
Respondent’s bigamous marriage and his proclivity for extramarital
adventurism have definitely caused damage to the legal and teaching
professions. How can he hold his head up high and expect his students, his
peers and the community to look up to him as a model worthy of
emulation when he failed to follow the tenets of morality? In contracting a
second marriage notwithstanding knowing fully well that he has a prior
valid subsisting marriage, Atty. Catindig has made a mockery of an
otherwise inviolable institution, a serious outrage to the generally
accepted moral standards of the community.29
On the other hand, the Investigating Commissioner recommended that the
charge against Atty. Baydo be dismissed for dearth of evidence; Dr. Perez
failed to present clear and preponderant evidence in support of the
alleged affair between the respondents.
Findings of the IBP Board of Governors
On December 10, 2011, the IBP Board of Governors issued a
Resolution,30 which adopted and approved the recommendation of the
Investigating Commissioner.
Atty. Catindig sought a reconsideration31 of the December 10, 2011
Resolution of the IBP Board of Governors, claiming that the Investigating
Commissioner erred in relying solely on Dr. Perez’s uncorroborated
allegations. He pointed out that, under Section 1 of Rule 139-B of the Rules
of Court, a complaint for disbarment must be supported by affidavits of
persons having knowledge of the facts therein alleged and/or by such
documents as may substantiate said facts. He said that despite the
absence of any corroborating testimony, the Investigating Commissioner
gave credence to Dr. Perez’ testimony.
He also claimed that he had absolutely no intention of committing any
felony; that he never concealed the status of his marriage from anyone. In
fact, Atty. Catindig asserted that he had always been transparent with both
Gomez and Dr. Perez.
The IBP Board of Governors, in its Resolution 32 dated December 29, 2012,
denied Atty. Catindig’s motion for reconsideration.
The Issue
The issue in this case is whether the respondents committed gross
immorality, which would warrant their disbarment.
Ruling of the Court
After a thorough perusal of the respective allegations of the parties and
the circumstances of this case, the Court agrees with the findings and
recommendations of the Investigating Commissioner and the IBP Board of
Governors.
The Code of Professional Responsibility
provides:chanRoblesvirtualLawlibrary
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.cralawred
In Arnobit v. Atty. Arnobit,33 the Court held:chanRoblesvirtualLawlibrary
[T]he requirement of good moral character is of much greater import, as
far as the general public is concerned, than the possession of legal
learning. Good moral character is not only a condition precedent for
admission to the legal profession, but it must also remain intact in order to
maintain one’s good standing in that exclusive and honored fraternity.
Good moral character is more than just the absence of bad character. Such
character expresses itself in the will to do the unpleasant thing if it is right
and the resolve not to do the pleasant thing if it is wrong. This must be so
because “vast interests are committed to his care; he is the recipient of
unbounded trust and confidence; he deals with his client’s property,
reputation, his life, his all.”34 (Citation omitted)
In this regard, Section 27, Rule 138 of the Rules of Court provides that a
lawyer may be removed or suspended from the practice of law, inter alia,
for grossly immoral conduct. Thus:chanRoblesvirtualLawlibrary
Sec. 27. Attorneys removed or suspended by Supreme Court on what
grounds. — A member of the bar may be removed 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 wilfull disobedience of any lawful order of a superior
court, or for corruptly or willful 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. (Emphasis ours)
“A lawyer may be suspended or disbarred for any misconduct showing any
fault or deficiency in his moral character, honesty, probity or good
demeanor.”35 Immoral conduct involves acts that are willful, flagrant, or
shameless, and that show a moral indifference to the opinion of the
upright and respectable members of the community. Immoral conduct is
gross when it is so corrupt as to constitute a criminal act, or so
unprincipled as to be reprehensible to a high degree, or when committed
under such scandalous or revolting circumstances as to shock the
community’s sense of decency. The Court makes these distinctions, as the
supreme penalty of disbarment arising from conduct requires grossly
immoral, not simply immoral, conduct.36chanroblesvirtuallawlibrary
Contracting a marriage during the subsistence of a previous one amounts
to a grossly immoral conduct.

The facts gathered from the evidence adduced by the parties and,
ironically, from Atty. Catindig’s own admission, indeed establish a pattern
of conduct that is grossly immoral; it is not only corrupt and unprincipled,
but reprehensible to a high degree.
Atty. Catindig was validly married to Gomez twice – a wedding in the
Central Methodist Church in 1968, which was then followed by a Catholic
wedding. In 1983, Atty. Catindig started pursuing Dr. Perez when their
paths crossed again. Curiously, 15 years into his first marriage and four
children after, Atty. Catindig claimed that his first marriage was then
already falling apart due to Gomez’ serious intimacy problems.
A year after pursuing Dr. Perez, Atty. Catindig had a de facto separation
from Gomez, dissolved their conjugal partnership of gains, obtained a
divorce decree from a court in the Dominican Republic, and married Dr.
Perez in the USA all in the same year. Atty. Catindig was so enchanted with
Dr. Perez at that time that he moved heaven and earth just so he could
marry her right away – a marriage that has at least a semblance of legality.
From his own admission, Atty. Catindig knew that the divorce decree he
obtained from the court in the Dominican Republic was not recognized in
our jurisdiction as he and Gomez were both Filipino citizens at that time.
He knew that he was still validly married to Gomez; that he cannot marry
anew unless his previous marriage be properly declared a nullity.
Otherwise, his subsequent marriage would be void. This notwithstanding,
he still married Dr. Perez. The foregoing circumstances seriously taint Atty.
Catindig’s sense of social propriety and moral values. It is a blatant and
purposeful disregard of our laws on marriage.
It has also not escaped the attention of the Court that Atty. Catindig
married Dr. Perez in the USA. Considering that Atty. Catindig knew that his
previous marriage remained valid, the logical conclusion is that he wanted
to marry Dr. Perez in the USA for the added security of avoiding any charge
of bigamy by entering into the subsequent marriage outside Philippine
jurisdiction.
Moreover, assuming arguendo that Atty. Catindig’s claim is true, it matters
not that Dr. Perez knew that their marriage is a nullity. The fact still
remains that he resorted to various legal strategies in order to render a
façade of validity to his otherwise invalid marriage to Dr. Perez. Such act is,
at the very least, so unprincipled that it is reprehensible to the highest
degree.
Further, after 17 years of cohabiting with Dr. Perez, and despite the
various legal actions he resorted to in order to give their union a
semblance of validity, Atty. Catindig left her and their son. It was only at
that time that he finally decided to properly seek the nullity of his first
marriage to Gomez. Apparently, he was then already entranced with the
much younger Atty. Baydo, an associate lawyer employed by his firm.
While the fact that Atty. Catindig decided to separate from Dr. Perez to
pursue Atty. Baydo, in itself, cannot be considered a grossly immoral
conduct, such fact forms part of the pattern showing his propensity
towards immoral conduct. Lest it be misunderstood, the Court’s finding of
gross immoral conduct is hinged not on Atty. Catindig’s desertion of Dr.
Perez, but on his contracting of a subsequent marriage during the
subsistence of his previous marriage to Gomez.
“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.’”37 In various cases,
the Court has held that disbarment is warranted when a lawyer abandons
his lawful wife and maintains an illicit relationship with another woman
who has borne him a child.38chanroblesvirtuallawlibrary
Atty. Catindig’s subsequent marriage during the subsistence of his previous
one definitely manifests a deliberate disregard of the sanctity of marriage
and the marital vows protected by the Constitution and affirmed by our
laws. By his own admission, Atty. Catindig made a mockery out of the
institution of marriage, taking advantage of his legal skills in the process.
He exhibited a deplorable lack of that degree of morality required of him
as a member of the bar, which thus warrant the penalty of disbarment.
The Court is not unmindful of the rule that 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. Where a lesser penalty, such as
temporary suspension, could accomplish the end desired, disbarment
should never be decreed. Nevertheless, in this case, the seriousness of the
offense compels the Court to wield its power to disbar, as it appears to be
the most appropriate penalty.
Atty. Catindig’s claim that Dr. Perez’s allegations against him are not
credible since they are uncorroborated and not supported by affidavits
contrary to Section 1, Rule 139-B of the Rules of Court, deserves scant
consideration. Verily, Atty. Catindig himself admitted in his pleadings that
he indeed married Dr. Perez in 1984 while his previous marriage with
Gomez still subsisted. Indubitably, such admission provides ample basis for
the Court to render disciplinary sanction against him.
There is insufficient evidence to prove the affair between the
respondents.
The Court likewise agrees with the Investigating Commissioner that there
is a dearth of evidence to prove the claimed amorous relationship between
the respondents. As it is, the evidence that was presented by Dr. Perez to
prove her claim was mere allegation, an anonymous letter informing her
that the respondents were indeed having an affair and the purported love
letter to Atty. Baydo that was signed by Atty. Catindig.
The Court has consistently held that in suspension or disbarment
proceedings against lawyers, the lawyer enjoys the presumption of
innocence, and the burden of proof rests upon the complainant to prove
the allegations in his complaint. The evidence required in suspension or
disbarment proceedings is preponderance of
evidence.39chanroblesvirtuallawlibrary
The presentation of the anonymous letter that was received by Dr. Perez
only proves that the latter indeed received a letter informing her of the
alleged relations between the respondents; it does not prove the veracity
of the allegations therein. Similarly, the supposed love letter, if at all, only
proves that Atty. Catindig wrote Atty. Baydo a letter professing his love for
her. It does not prove that Atty. Baydo is indeed in a relationship with Atty.
Catindig.
WHEREFORE, in consideration of the foregoing disquisitions, the Court
resolves to ADOPT the recommendations of the Commission on Bar
Discipline of the Integrated Bar of the Philippines. Atty. Tristan A. Catindig
is found GUILTY of gross immorality and of violating the Lawyer’s Oath and
Rule 1.01, Canon 7 and Rule 7.03 of the Code of Professional Responsibility
and is hereby DISBARRED from the practice of law.
Let a copy of this Decision be entered into the records of Atty. Tristan A.
Catindig in the Office of the Bar Confidant and his name is ORDERED
STRICKEN from the Roll of Attorneys. Likewise, copies of this Decision shall
be furnished to the Integrated Bar of the Philippines and circulated by the
Court Administrator to all appellate and trial courts.
The charge of gross immorality against Atty. Karen E. Baydo is
hereby DISMISSED for lack of evidence.
This Decision takes effect immediately.
SO ORDERED.
EN BANC
A.C. No. 10676, September 08, 2015
ATTY. ROY B. ECRAELA, Complainant, v. ATTY. IAN RAYMOND A.
PANGALANGAN, Respondent.
DECISION
PER CURIAM:
The Case
Before the Court is a Petition for Disbarment1 filed by Atty. Roy B. Ecraela
with the Integrated Bar of the Philippines Commission on Bar Discipline
(IBP-CBD) on April 12, 2007 against Atty. Ian Raymond A. Pangalangan for
his illicit relations, chronic womanizing, abuse of authority as an educator,
and "other unscrupulous activities" which cause "undue embarrassment to
the legal profession." Complainant claims that respondent's actions involve
deceit, malpractice, gross misconduct and grossly immoral conduct in
violation of the Lawyer's Oath.
The Facts
Complainant and respondent were best friends and both graduated from
the University of the Philippines (UP) College of Law in 1990, where they
were part of a peer group or barkada with several of their classmates.
After passing the bar examinations and being admitted as members of the
Bar in 1991, they were both registered with the IBP Quezon City.
Respondent was formerly married to Sheila P. Jardiolin (Jardiolin) with
whom he has three (3) children. Complainant avers that while married to
Jardiolin, respondent had a series of adulterous and illicit relations with
married and unmarried women between the years 1990 to 2007. These
alleged illicit relations involved:ChanRoblesvirtualLawlibrary
a. AAA,2 who is the spouse of a colleague in the UP College
of Law, from 1990 to 1992, which complainant had
personal knowledge of such illicit relations;
b. BBB, sometime during the period from 1992 to 1994 or
from 1994 to 1996, despite being already married to
Jardiolin;
c. CCC, despite being married to Jardiolin and while also
being romantically involved with DDD;
d. DDD, sometime during the period from 2000 to 2002,
despite still being married to Jardiolin and while still
being romantically involved with CCC;
e. EEE, who is related to complainant, sometime during the
period from May 2004 until the filing of the Petition,
while still being romantically involved with CCC.3
Complainant claims that respondent, with malice and without remorse,
deceived CCC and DDD by representing himself to be a bachelor, thereby
convincing the two women to start a love affair with him, when in truth, he
was then still married to Jardiolin.4cralawrednad
Aside from these illicit affairs, complainant avers that sometime during the
period of 1998 to 2000, respondent, as a lawyer of the Office of the
Government Corporate Counsel (OGCC), represented the interest of
Manila International Airport Authority (MIAA) in cancellation proceedings
filed by MIAA against Kendrick Development Corporation (KDC). However,
despite being a public officer and a government counsel, respondent
conspired with Atty. Abraham Espejo, legal counsel of KDC, and assisted
KDC in its case, thereby sabotaging MIAA's case, and, in effect, that of the
Philippine Government.3cralawrednad
Complainant further claims that respondent even attempted to bribe then
Solicitor Rolando Martin of the Office of the Solicitor General (OSG) in
exchange for the latter's cooperation in the dismissal of the cancellation
proceedings in favor of KDC. In return for his "earnest efforts" in assisting
KDC in its case, respondent was allegedly rewarded with a Toyota Corolla
XL with plate number ULS-835 by Atty. Espejo. The vehicle was seen
several times by respondent's classmates and officemates being driven and
parked by respondent in his own home and in the OGCC premises
itself.6cralawrednad
In connection with his involvement in the MIAA case, complainant claims
that respondent was summoned in a Senate inquiry concerning rampant
faking of land titles in the Philippines, which included an investigation of
the alleged spurious land titles of KDC. In Senate Committee Final Report
No. 367, the Senate Blue Ribbon and Justice & Human Rights Committees
recommended that respondent be investigated and prosecuted by the
Office of the Ombudsman (Ombudsman) for graft and corruption, as well
as disbarment or disciplinary sanction by this Court for grave misconduct
or violation of the Revised Penal Code.7cralawrednad
It was further alleged that, during the pendency of the Senate Inquiry,
respondent even attempted to conceal the evidence by requesting
complainant's parents, spouses Marcelo F. Ecraela and Visitacion B.
Ecraela, to have the Toyota Corolla XL parked in their residence in Cainta,
Rizal, for an indefinite period of time. Respondent's request, however, was
refused by the spouses when they learned that the vehicle was the subject
of the Senate Inquiry.8cralawrednad
It appears from the documents presented by complainant that the
Ombudsman issued a Resolution finding probable cause against
respondent, and an Information was thereafter filed with the
Sandiganbayan for violation of Section 3 (b) of Republic Act No. (RA)
3019.9cralawrednad
Complainant also claims that respondent abused his authority as an
educator in Manuel L. Quezon University, San Sebastian College, College of
St. Benilde, and Maryknoll College, where respondent induced his male
students to engage in "nocturnal preoccupations" and entertained the
romantic gestures of his female students in exchange for passing
grades.10cralawrednad
The Petition was docketed as CBD Case No. 07-1973.
In an Order11 dated April 16, 2007, the Director for Bar Discipline,
Honorable Rogelio A. Vinluan, required respondent to file his verified
answer.
In his undated Answer,12 respondent opted not to present any counter-
statement of facts in support of his defense. Instead, respondent simply
argued that the petition suffers from procedural and substantive
infirmities, claiming that petitioner failed to substantiate the allegations or
charges against him. Respondent pointed out that Annex "J" of the Petition
entitled "Arguments in Support of the Disbarment" lacked formal
requirements, and thus, should be treated as a mere scrap of paper.
Respondent also asserts that the e-mail messages attached to the petition
were inadmissible for having been obtained in violation of the Rules on
Electronic Evidence.13 He claims that the identities of the owners of the e-
mail messages, as well as the allegations of illicit relations and abuse of
authority, were not properly established. Respondent further argues that
the statements of complainant's witnesses were merely self-serving and
deserved scant consideration.
Complainant filed a Comment (to the Respondent's Answer),14 stating that
the allegations in the complaint were deemed admitted by reason of
respondent's failure to make specific or even general denials of such in his
Answer.
In his Reply (to the Comment filed by Complainant),15 respondent simply
denied all of complainant's accusations in the petition, allegedly for "lack
of knowledge and information sufficient to form a belief as to the truth or
falsity thereof."16cralawrednad
On August 3, 2007, 1BP-CBD Investigating Commissioner Leland R.
Villadolid, Jr. (Commissioner Villadolid) set the case for mandatory
conference on August 28, 2007,17 which respondent failed to attend. It
appears that respondent filed a Motion to Cancel Hearing, 18 praying for the
resetting of the mandatory conference allegedly due to a previously
scheduled hearing on the same date. Respondent's motion was opposed
by complainant and eventually denied by Commissioner Villadolid in his
Order19dated August 28, 2007. In the same order, complainant's
Manifestation20 praying that subpoenas be issued to several persons who
shall be complainant's hostile witnesses was granted by Commissioner
Villadolid. Accordingly, the case was scheduled for the presentation of
complainant's witnesses on September 11, 2007 and the respective
subpoenas21 were issued.
A day before the scheduled hearing, the IBP-CBD received respondent's
Motion for Reconsideration,22praying that the Order dated August 28,
2007 be set aside and that the hearing be reset to sometime during the
third week of October. In said motion, respondent informed the IBP-CBD
that he has viral conjunctivitis or more commonly known as "sore eyes"
and has been ordered by the doctor to rest for at least one to two weeks
while his eyes are being treated. Attached to his motion were photocopies
of two medical certificates, stating that a certain R. Pangalangan was
suffering from sore eyes.
During the scheduled hearing on September 11, 2007, complainant
opposed petitioner's motion, arguing that based on his personal
verification with the court personnel of Branch 77 of Metropolitan Trial
Court (MTC) of Parafiaque City, there was no case calendared for hearing
on the date of the previous setting. Complainant also argued that this is
another ploy of respondent to delay the proceedings because he knew that
complainant worked overseas and was only in the country for a limited
period of time. Finding merit in complainant's opposition, respondent's
motion was denied and complainant was allowed to present his
witnesses.23cralawrednad
Complainant presented his witnesses, as follows: Assistant Solicitor
General Karl Miranda (ASG Miranda), Ms. Laarni Morallos (Ms. Morallos),
Atty. Glenda T. Litong (Atty. Litong), Atty. Emelyn W. Corpus (Atty. Corpus),
Mr. Marcelo Ecraela, and Mrs. Visitacion Ecraela.
ASG Miranda testified on his participation in the KDC case as reflected in
the Senate Blue Ribbon Committee Report, as well as on his recollection
that the Senate Report had recommended the disbarment of respondent.
Ms. Morallos, Atty. Litong, and Atty. Corpus were presented to establish
that the email messages submitted by complainant indeed originated from
respondent based on their familiarity with respondent, particularly, the
email messages which contained references to his daughter, his
relationship with complainant, and respondent's high blood pressure.
Atty. Litong further testified that respondent personally introduced DDD to
her as his girlfriend and that sometime in 2002 or 2003, she saw
respondent with another girl in Glorietta despite still being married to his
wife. Atty. Litong also recalled encountering respondent at a party
sometime in 2007 where he was with CCC, whom she perceived to be
respondent's girlfriend at that time. She also confirmed that respondent
had, in more than one occasion, brought with him his students during their
drinking sessions and had even one student driving for him.
For her testimony, Atty. Corpus corroborated Atty. Litong's statements
about respondent's preoccupations with his students. Atty. Corpus also
testified that DDD called her at her office sometime in 2000 or 2001 to
inform her that the latter had broken up with respondent upon learning
that he was actually married. Atty. Corpus surmised based on her
telephone conversation with DDD that respondent did not tell the latter
his actual marital status. Aside from this, Atty. Corpus also recalled that
during complainant's farewell party in February 2007, respondent
introduced CCC as his girlfriend of six years, or since the year 2000 or 2001.
To expedite the hearing, the spouses Ecraela were made to affirm the
execution of their affidavits since their testimonies were based on the
affidavits that complainant included in his petition.
Once complainant's presentation of witnesses was concluded, the
mandatory conference/hearing was terminated and the parties were
directed to submit their respective verified position papers with supporting
documentary evidence within thirty (30) days from receipt of the transcript
of stenographic notes. After which, the case was considered submitted for
report and recommendation.
On September 18, 2007, the IBP-CBD received complainant's Manifestation
(with Comments),24pertaining to respondent's Motion to Cancel Hearing
and praying for the IBP-CBD to formally request for records from Branch 77
of MTC, Paranaque City to verify respondent's claim that he had a hearing
in said court during the first scheduled mandatory conference. On the
same date, the IBP-CBD also received complainant's Compliance (with
Comments),25cralawred submitting the certified photo copies of the
Senate Committee Final Report No. 367, the Resolution dated January 22,
2001 of the Ombudsman, and the Information dated June 30, 2003 filed
with the Sandiganbayan.
On January 8, 2008, the IBP-CBD received complainant's Position
Paper.26 Complainant thereafter filed two Manifestations,27 asserting that
respondent is already barred from submitting his verified position paper
and that any decision or judgment would have to be based solely on
complainant's Verified Position Paper.28cralawrednad
Findings of the IBP Investigating Commissioner

After the case was submitted for report and recommendation,
Commissioner Villadolid rendered a Report,29 finding that there is more
than sufficient evidence establishing respondent's gross misconduct
affecting his standing and moral character as an officer of the court and
member of the bar.
On the issue of respondent's alleged violations of the Revised Penal
Code30 and/or RA 301931 as reflected in the Senate Report, the
Ombudsman's Resolution, and the Information, Commissioner Villadolid
found that despite respondent's denials, complainant was able to present
certified true copies of the relevant documents which support his
allegations in the petition.
As for the alleged illicit affairs of respondent, Commissioner Villadolid
discredited complainant's assertion that respondent is guilty of gross
immoral conduct for his alleged adulterous relations with EEE. Based on
the Report, complainant was not able to discharge the burden of proving
the authenticity of the email messages pertaining to this adulterous affair;
thus, they were deemed inadmissible. However, Commissioner Villadolid
found merit in complainant's claim that respondent committed grossly
immoral conduct by having illicit relations with DDD, CCC, and BBB, all
while still married to Jardiolin, to wit:ChanRoblesvirtualLawlibrary
4.21 In engaging in such illicit relationships, Respondent disregarded the
sanctity of marriage and the marital vows protected by the Constitution
and affirmed by our laws, which as a lawyer he swore under oath to
protect. The 1987 Constitution, specifically Article XV. Section 2 thereof
clearly provides that marriage, an inviolable social institution, is the
foundation of the family and shall be protected by the state.
xxxx
4.23 Moreover. Respondent violated Rule 1.01 of Canon 1, and Rule 7.03
of Canon 7 of the Code of Professional Responsibility, which provides that
"a lawyer shall not engage in unlawful, dishonest, immoral or deceitful
conduct" nor shall a lawyer "engage in conduct that adversely reflects on
his fitness to practice law. nor shall he, whether in public or private life,
behave in scandalous manner to the discredit of the legal profession". 32
Accordingly, the IBP-CBD reached and gave the following conclusion and
recommendation:ChanRoblesvirtualLawlibrary
V. Conclusion/Recommendations
5.1 In view of the foregoing, and considering that there is more than
sufficient evidence establishing Respondent's gross misconduct affecting
his standing and moral character as an officer of the court and member of
the bar. this Commissioner respectfully recommends that Respondent be
suspended from the practice of law for a period of two (2) years with a
STERN WARNING that Respondent should reform his conduct in a manner
consistent with the norms prescribed by the Canons of Professional
Responsibility."33
Findings of the IBP Board of Governors
On March 20, 2013, the Board of Governors of the IBP issued a
Resolution34 adopting and approving, with modification, the Report and
Recommendation of Commissioner Villadolid. As modified, the Board of
Governors disbarred respondent, thus:ChanRoblesvirtualLawlibrary
RESOLUTION NO. XX-2013-280
CBD Case No. 07-1973
Atty. Roy B. Ecraela vs.
Atty. Ian Raymundo A. Pangalangan
RESOLVED to ADOPT and APPROVE, as it is hereby unanimously ADOPTED
and APPROVED, with modification, the Report and Recommendation of
the Investigating Commissioner in the above-entitled case, herein made
part of this Resolution as Annex "A", and finding the recommendation fully
supported by the evidence on record and the applicable laws and rules and
considering Respondent's violations of Article XV of the 1987 Constitution,
Section 2, Rule 1.01 of Canon 1 and Rule 7.03 of Canon 7 of the Code of
Professional Responsibility, and the Lawyer's Oath, Atty. Ian Raymundo A.
Pangalangan is hereby DISBARRED and his name Ordered Stricken Off from
the Roll of Attorneys.
On July 9, 2013, the IBP received respondent's Motion for
Reconsideration35 dated July 3, 2013, to which complainant was required
to submit his comment.36cralawrednad
For his part, complainant filed a Motion for Reconsideration (of the IBP-
CBD Report dated June 28, 2012)37 dated August 17, 2013. Similarly,
respondent was required to comment on complainant's motion in an
Order38 dated August 27, 2013. On the same date, complainant filed his
Comment and/or Opposition (to the Respondent's Motion for
Reconsideration).39cralawrednad
Subsequently, respondent filed a Comment on/Opposition to the Motion
for Reconsideration with Leave40dated September 12, 2013, as well as a
Reply to the Comment and/or Opposition41 dated September 20, 2013.
On May 3, 2014, the Board of Governors of the IBP passed a resolution
denying respondent's motion for reconsideration.42 Thereafter, the
Director for Bar Discipline forwarded the records of this case to this Court
on November 11, 2014.43cralawrednad
The Issue
The issue in this case is whether the respondent committed gross immoral
conduct, which would warrant his disbarment.
The Court's Ruling
After a thorough examination of the records, the Court agrees with the
Board of Governors' resolution finding that Atty. Pangalangan's grossly
immoral conduct was fully supported by the evidences offered.
The Code of Professional Responsibility
provides:ChanRoblesvirtualLawlibrary
CANON 1 - A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE
LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND LEGAL
PROCESSES.
Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct.
xxxx
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.
The practice of law is a privilege given to those who possess and continue
to possess the legal qualifications for the profession. 44 Good moral
character is not only required for admission to the Bar, but must also be
retained in order to maintain one's good standing in this exclusive and
honored fraternity.45
We are not unmindful of the serious consequences of disbarment or
suspension proceedings against a member of the Bar. Thus, the Court has
consistently held that clearly preponderant evidence is necessary to justify
the imposition of administrative penalties on a member of the Bar. This,
We explained in Aba v. De Guzman, Jr.:ChanRoblesvirtualLawlibrary
Preponderance of evidence means that the evidence adduced by one side
is, as a whole, superior to or has greater weight than that of the other. It
means evidence which is more convincing to the court as worthy of belief
than that which is offered in opposition thereto. Under Section 1 of Rule
133. in determining whether or not there is preponderance of evidence,
the court may consider the following: (a) all the facts and circumstances of
the case; (b) the witnesses' manner of testifying, their intelligence, their
means and opportunity of knowing the facts to which they are testifying,
the nature of the facts to which they testify, the probability or
improbability of their testimony; (c) the witnesses' interest or want of
interest, and also their personal credibility so far as the same may
ultimately appear in the trial; and (d) the number of witnesses, although it
docs not mean that preponderance is necessarily with the greater number.
When the evidence of the parties are evenly balanced or there is doubt on
which side the evidence preponderates, the decision should be against the
party with the burden of proof according to the equipoise doctrine.
To summarize, the Court has consistently held that in suspension or
disbarment proceedings against lawyers, the lawyer enjoys the
presumption of innocence, and the burden of proof rests upon the
complainant to prove the allegations in his complaint. The evidence
required in suspension or disbarment proceedings is preponderance of
evidence. In case the evidence of the parties are equally balanced, the
equipoise doctrine mandates a decision in favor of the respondent.46
The IBP-CBD Report sufficiently showed by preponderant evidence the
grounds by which respondent has been found committing gross immorality
in the conduct of his personal affairs.
This Court has, in numerous occasions, revoked the licenses of lawyers
who were proven to have not only failed to retain good moral character in
their professional and personal lives, but have also made a mockery of the
institution of marriage by maintaining illicit affairs.
In Guevarra v. Eala, respondent Atty. Eala was disbarred because he
showed disrespect for an institution held sacred by the law, by having an
extramarital affair with the wife of the complainant. In doing so, he
betrayed his unfitness to be a lawyer.47cralawrednad
A year later, Atty. Arnobit met the same fate as Atty. Eala when the Court
revoked his privilege to practice law after his philandering ways was
proven by preponderant evidence in Arnobit v. Arnobit.48 We
ruled:ChanRoblesvirtualLawlibrary
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. A
member of the bar and an officer of the court is not only required to
refrain from adulterous relationships or keeping a mistress but must also
so behave himself as to avoid scandalizing the public by creating the
impression that he is flouting those moral standards.
xxxx
The fact that respondent's philandering ways are far removed from the
exercise of his profession would not save the day for him. For a lawyer may
be suspended or disbarred for any misconduct which, albeit unrelated to
the actual practice of his profession, would show him to be unfit for the
office and unworthy of the privileges with which his license and the law
invest him. To borrow from Orbe v. Adaza, "[t]he grounds expressed in
Section 27, Rule 138. of the Rules of Court are not limitative and are broad
enough to. cover any misconduct x x x of a lawyer in his professional or
private capacity." To reiterate, possession of good moral character is not
only a condition precedent to the practice of law, but a continuing
qualification for all members of the bar.49
Similarly, in the more recent case of Dr. Elmar O. Perez v. Atty. Tristan
Catindig,50 the Court disbarred respondent Atty. Catindig for blatantly and
purposefully disregarding our laws on marriage by resorting to various
legal strategies to render a facade of validity to his invalid second
marriage, despite the existence of his first marriage. We
said:ChanRoblesvirtualLawlibrary
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 various cases,
the Court has held that disbarment is warranted when a lawyer
abandons his lawful wife and maintains an illicit relationship with
another woman who has borne him a child.51 (emphasis ours.)

In the present case, complainant alleged that respondent carried on
several adulterous and illicit relations with both married and unmarried
women between the years 1990 to 2007, including complainant's own
wife. Through documentary evidences in the form of email messages, as
well as the corroborating testimonies of the witnesses presented,
complainant was able to establish respondent's illicit relations with DDD
and CCC by preponderant evidence.
Respondent's main defense against the alleged illicit relations was that the
same were not sufficiently established. In his answer, respondent simply
argued that complainant's petition contains self-serving averments not
supported by evidence. Respondent did not specifically deny complainant's
allegations and, instead, questioned the admissibility of the supporting
documents. Due to respondent's own failure to attend the hearings and
even submit his own position paper, the existence of respondent's illicit
relations with DDD and CCC remain uncontroverted.
The IBP-CBD Report was correct when it found that respondent violated
Article XV, Section 2 of the 1987 Constitution, to
wit:ChanRoblesvirtualLawlibrary
4.21 In engaging in such illicit relationships, Respondent disregarded the
sanctity of marriage and the marital vows protected by the Constitution
and affirmed by our laws, which as a lawyer he swore under oath to
protect. The 1987 Constitution, specifically Article XV, Section 2 thereof
clearly provides that marriage, an inviolable social institution, is the
foundation of the family and shall be protected by the State.52(emphasis
in the original.)
Aside from respondent's illicit relations, We agree with Commissioner
Villadolid's findings that respondent violated Canon 10 of the Code of
Professional Responsibility, as well as Rule 10.01 and Rule 10.03 thereof.
The Code of Professional Responsibility
provides:ChanRoblesvirtualLawlibrary
CANON 10 - A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO
THE COURT.
Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing
of any in Court; nor shall he mislead, or allow the Court to be misled by any
artifice.
xxx
Rule 10.03 - A lawyer shall observe the rules of procedure and shall not
misuse them to defeat the ends of justice.
In the Petition, complainant alleged that respondent was the subject of a
Senate Inquiry and had a pending case for graft and corruption against him
with the Sandiganbayan, to wit:ChanRoblesvirtualLawlibrary
13. Respondent has been recommended by the Senate Blue Ribbon and
Justice & Human Rights Committees to be investigated and prosecuted by
the Ombudsman, the same as contained in their "Committee Final Report
No. 367" herein attached as Annex D;
14. Respondent has also been recommended by the above- mentioned
committees to suffer the penalty of disbarment, among others, as
evidenced by the herein attached Annex D-1, and it is believed that a case
for graft and corruption against him is still pending with the
Sandiganbayan.''53
Instead of refuting these claims, respondent merely pointed out in his
Answer that complainant failed to adduce additional evidence that a case
had been filed against him, and that complainant's statements were
merely self-serving averments not substantiated by any evidence. In his
Reply, respondent even specifically denied complainant's averments for
"lack of knowledge and information sufficient to form a belief as to the
truth or falsity thereof."
We agree with Commissioner Villadolid's findings in the IBP-CBD
Report, viz:ChanRoblesvirtualLawlibrary
4.8 It (sic) is thus indisputable that Respondent's pretensions in his Answer
were made in attempt to mislead this Commission. Respondent could have
easily admitted or denied said allegations or explained the same, as he (sic)
clearly had knowledge thereof, however, he (sic) chose to take advantage
of Complainant" s position of being not present in the country and not
being able to acquire the necessary documents, skirt the issue, and
mislead the Commission. In doing so, he has violated Canon 10 of the Code
of Professional Responsibility, which provides that "a lawyer owes candor,
fairness and good faith to the court" as well as Rule 10.01 and Rule 10.03
thereof which states that "a lawyer should do no falsehood nor consent
to the doing of any in Court; nor shall he mislead, or allow the court to be
misled by any artifice" and that "a lawyer shall observe the rules of
procedure and shall not misuse them to defeat the ends of justice."
4.9 Courts [as well as this Commission] are entitled to expect only
complete candor and honesty from the lawyers appearing and pleading
before them. Respondent, through his actuations, has been lacking in the
candor required of him not only as a member of the Bar but also as an
officer of the Court. In view of the foregoing, the Commission finds that
Respondent has violated Canon 10, Rule 10.01 of the Code of Professional
Responsibility, for which he should be disciplined.54 (emphasis in the
original.)
In denying complainant's allegations, respondent had no other intention
but to mislead the IBP, which intention was more so established because
complainant was able to submit supporting documents in the form of
certified true copies of the Senate Report, the Ombudsman's Resolution,
and Information.
We also agree with Commissioner Villadolid's finding that respondent
violated the lawyer's oath which he took before admission to the Bar,
which states:ChanRoblesvirtualLawlibrary
I,__________ , do solemnly swear that I will maintain allegiance to the
Republic of the Philippines; [will support its Constitution and obey laws as
well as the legal orders of the duly constituted authorities therein; 1 will do
no falsehood, nor consent to the doing of any court; I will not wittingly nor
willingly promote or sue any groundless, false or unlawful suit, or give aid
nor consent to the same; I will delay no man for money or malice, and will
conduct myself as a lawyer according to the best of my knowledge and
discretion with all good fidelity as well to the courts as to my clients; and I
impose upon myself this voluntary obligations without any menial
reservation or purpose of evasion. So help me God.
In all, Atty. Pangalangan displayed deplorable arrogance by making a
mockery out of the institution of marriage, and taking advantage of his
legal skills by attacking the Petition through technicalities and refusing to
participate in the proceedings. His actions showed that he lacked the
degree of morality required of him as a member of the bar, thus
warranting the penalty of disbarment.
WHEREFORE, in consideration of the foregoing, the Court resolves
to ADOPT the resolution of the IBP Board of Governors approving and
adopting, with modification, the Report and Recommendation of the
Investigating Commissioner. Accordingly, respondent Atty. Ian Raymond A.
Pangalangan is found GUILTYof gross immorality and of violating Section 2
of Article XV of the 1987 Constitution, Canon 1 and Rule 1.01, Canon 7 and
Rule 7.03, and Rule 10.01 of Canon 10 of the Code of Professional
Responsibility, and the Lawyer's Oath and is hereby DISBARRED from the
practice of law.
Let a copy of this Decision be entered into the personal records of Atty. Ian
Raymond A. Pangalangan with the Office of the Bar Confidant and his
name is ORDERED STRICKEN from the Roll of Attorneys. Likewise, let
copies of this Decision be furnished to all chapters of the Integrated Bar of
the Philippines and circulated by the Court Administrator to all the courts
in the country for their information and guidance.
This Decision takes effect immediately.
SO ORDERED.
 EN BANC against moral turpitude; and thus, Sesbreño should not be allowed to
continue his practice of law.
A.C. No. 7973 and A.C. No. 10457 February 3, 2015
In his Comment, Sesbreño alleged that on 15 August 2008, Garcia filed a
MELVYN G. GARCIA, Complainant, similar complaint against him before the Integrated Bar of the Philippines,
vs. Commission on Bar Discipline (IBP-CBD), docketed as CBC Case No. 08-
ATTY. RAUL H. SESBRENO, Respondent. 2273. Sesbreño alleged that Garcia’s complaint was motivated by
resentment and desire for revenge because he acted as pro bono counsel
DECISION for Maria Margarita and Angie Ruth.

PER CURIAM: In the Court’s Resolution dated 18 January 2010, the Court referred A.C.
No. 7973 to the IBP for investigation, report and recommendation.
Two complaints for disbarment were filed by Dr. Melvyn G. Garcia (Garcia)
against Atty. Raul H. Sesbrefio (Sesbrefio). The two cases, docketed as A.C. A.C. No. 10457 (CBC Case No. 08-2273)
No. 7973 and A.C. No. 10457, were consolidated in the Court's Resolution
dated 30 September 2014. A day prior to the filing of A.C. No. 7973, or on 29 July 2008, Garcia filed a
complaint for disbarment against Sesbreño before the IBP-CBD. He alleged
A.C. No. 7973 that Sesbreño is practicing law despite his previous conviction for homicide
in Criminal Case No. CBU-31733, and despite the facts that he is only on
parole and that he has not fully served his sentence. Garcia alleged that
On 30 July 2008, Garcia filed a complaint for disbarment against Sesbreño
Sesbreño violated Section 27, Rule 138 of the Rules of Court by continuing
before the Office of the Bar Confidant. The case was docketed as A.C. No.
to engage in the practice of law despite his conviction of a crime involving
7973. Garcia alleged that in 1965, he married Virginia Alcantara in Cebu.
moral turpitude. Upon the directive of the IBP-CBD, Garcia submitted his
They had two children, Maria Margarita and Angie Ruth. In 1971, he and
verified complaint against Sesbreño alleging basically the same facts he
Virginia separated. He became a dentist and practiced his profession in
alleged in A.C. No. 7973.
Cabanatuan City. Garcia alleged that in1992, Virginia filed a petition for the
annulment of their marriage, which was eventually granted.
In his answer to the complaint, Sesbreño alleged that his sentence was
commuted and the phrase "with the inherent accessory penalties provided
Garcia alleged that in 2005 while he was in Japan, Sesbreño, representing
by law" was deleted. Sesbreño argued that even if the accessory penalty
Maria Margarita and Angie Ruth, filed an action for support against him
was not deleted, the disqualification applies only during the term of the
and his sister Milagros Garcia Soliman. At the time of the filing of the case,
sentence. Sesbreño further alleged that homicide does not involve moral
Maria Margarita was already 39 years old while Angie Ruth was 35 years
turpitude. Sesbreño claimed that Garcia’s complaint was motivated by
old. The case was dismissed. In 2007, Garcia returned from Japan. When
extreme malice, bad faith, and desire to retaliate against him for
Sesbreño and Garcia’s children learned abouthis return, Sesbreño filed a
representing Garcia’s daughters in court.
Second Amended Complaint against him. Garcia alleged that he learned
that Sesbreño was convicted by the Regional Trial Court of Cebu City,
Branch 18, for Homicide in Criminal Case No. CBU-31733. Garcia alleged The IBP-CBD consolidated A.C. No. 7973 with CBD Case No. 08-2273. The
that Sesbreño is only on parole. Garcia alleged that homicide is a crime parties agreed on the sole issue to be resolved: whether moral turpitude is
involved in a conviction for homicide. The IBP-CBD ruled that the Regional
Trial Court of Cebu found Sesbreño guilty of murder and sentenced him to
suffer the penalty of reclusion perpetua. On appeal, this Court
downgraded the crime to homicide and sentenced Sesbreño to suffer the
penalty of imprisonment for 9 years and 1 day of prision mayor as
minimum to 16 years and 4 months of reclusion temporalas maximum. The
IBP-CBD found that Sesbreño was released from confinement on 27 July
2001 following his acceptance of the conditions of his parole on 10 July
2001.
The IBP-CBD ruled that conviction for a crime involving moral turpitude is a
ground for disbarment or suspension. Citing International Rice Research
Institute v. National Labor Relations Commission,1 the IBPCBD further ruled
that homicide may or may not involve moral turpitude depending on the
degree of the crime. The IBP-CBD reviewed the decision of this Court
convicting Sesbreño for the crime of homicide, and found that the
circumstances leading to the death of the victim involved moral turpitude.
The IBP-CBD stated:
Neither victim Luciano Amparadon or his companion Christopher
Yapchangco was shown to be a foe of respondent and neither had the
victim Luciano nor his companion Christopher shown to have wronged the
respondent. They simply happened to be at the wrong place and time the
early morning of June 3, 1993.
The circumstances leading to the death of Luciano solely caused by
respondent, bear the earmarks of moral turpitude. Paraphrasing what the
Supreme Court observed in Soriano v. Dizon, supra, the respondent, by his
conduct, displayed extreme arrogance and feeling of self-importance.
Respondent acted like a god who deserved not to be slighted by a couple
of drunks who may have shattered the stillness of the early morning with
their boisterous antics, natural display of loud bravado of drunken men
who had one too many. Respondent’s inordinate over reaction to the
ramblings of drunken men who were not even directed at respondent
reflected poorly on his fitness to be a member of the legal profession.
Respondent was not only vindictive without a cause; he was cruel with a
misplaced sense of superiority.2
Following the ruling of this Court in Soriano v. Atty. Dizon3 where the
respondent was disbarred for having been convicted of frustrated
homicide, the IBP-CBD recommended that Sesbreño be disbarred and his
name stricken from the Roll of Attorneys.
In its Resolution No. XX-2013-19 dated 12 February 2013, the IBP Board of
Governors adopted and approved the Report and Recommendation of the
IBP-CBD.
On 6 May 2013, Sesbreño filed a motion for reconsideration before the
IBP-CBD. Sesbreño alleged that the IBP-CBD misunderstood and misapplied
Soriano v. Atty. Dizon. He alleged that the attendant circumstances in
Sorianoare disparate, distinct, and different from his case. He further
alleged that there was no condition set on the grant of executive clemency
to him; and thus, he was restored to his full civil and political rights. Finally,
Sesbreño alleged that after his wife died in an ambush, he already stopped
appearing as private prosecutor in the case for bigamy against Garcia and
that he already advised his clients to settle their other cases. He alleged
that Garcia already withdrew the complaints against him.
On 11 February 2014, the IBP Board of Governors passed Resolution No.
XX-2014-31 denying Sesbreño’s motion for reconsideration. The IBPCBD
transmitted the records of the case to the Office of the Bar Confidant on
20 May 2014. CBD Case No. 08-2273 was redocketed as A.C. No. 10457. In
the Court’s Resolution dated 30 September 2014, the Court consolidated
A.C. No. 7973 and A.C. No. 10457.
The only issue in these cases is whether conviction for the crime of
homicide involves moral turpitude.
We adopt the findings and recommendation of the IBP-CBD and approve
Resolution No. XX-2013-19 dated 12 February 2013 and Resolution No. XX-
2014-31 dated 11 February 2014 of the IBP Board of Governors.
Section 27, Rule 138 of the Rules of Court states that a member of the bar
may be disbarred or suspended as attorney by this Court by reason of his
conviction of a crime involving moral turpitude. This Court has ruled that
disbarment is the appropriate penalty for conviction by final judgment for
a crime involving moral turpitude.4 Moral turpitude is an act of baseness,
vileness, or depravity in the private duties which a man owes to his fellow
men or to society in general, contraryto justice, honesty, modesty, or good
morals.5
The question of whether conviction for homicide involves moral turpitude
was discussed by this Court in International Rice Research Institute v.
NLRC6 where it ruled:
This is not to say that all convictions of the crime of homicide do not
involve moral turpitude.1âwphi1 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. While x x x generally but not always,
crimes mala in seinvolve moral turpitude, while crimes mala prohibitado
not, it cannot always be ascertained whether moral turpitude does or does
not exist by classifying a crime as malum in se or as malum prohibitum,
since there are crimes which are mala in se and yet rarely involve moral
turpitude and there are crimes which involve moral turpitude and are mala
prohibita only. It follows therefore, 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.7
In People v. Sesbreño,8 the Court found Sesbreño guilty of homicide and
ruled: WHEREFORE, the assailed decision of the Regional Trial Court of
Cebu City, Branch 18, in Criminal Case No. CBU-31733 is hereby MODIFIED.
Appellant Raul H. Sesbreñois hereby found GUILTY of HOMICIDE and
hereby sentenced to suffer a prison term of 9 years and 1 day of prision
mayor, as a minimum, to 16 years and 4 months of reclusion temporal, as a
maximum, with accessory penalties provided by law, to indemnify the
heirs of the deceased Luciano Amparado in the amount of ₱50,000.00 and
to pay the costs.
SO ORDERED.9
We reviewed the Decision of this Court and we agree with the IBPCBD that
the circumstances show the presence of moral turpitude.
The Decision showed that the victim Luciano Amparado (Amparado) and
his companion Christopher Yapchangco (Yapchangco) were walking and
just passed by Sesbreño’s house when the latter, without any provocation
from the former, went out of his house, aimed his rifle, and started firing
at them. According to Yapchangco, theywere about five meters, more or
less, from the gate of Sesbreño when they heard the screeching sound of
the gate and when they turned around, they saw Sesbreño aiming his rifle
at them. Yapchangco and Amparado ran away but Amparado was hit. An
eyewitness, Rizaldy Rabanes (Rabanes), recalled that he heard shots and
opened the window of his house. He saw Yapchangco and Amparado
running away while Sesbreño was firing his firearm rapidly, hitting
Rabanes’ house in the process. Another witness, Edwin Parune, saw
Amparado fall down after being shot, then saw Sesbreño in the middle of
the street, carrying a long firearm, and walking back towards the gate of
his house. The IBP-CBD correctly stated that Amparado and Yapchangco
were just at the wrong place and time. They did not do anything that
justified the indiscriminate firing done by Sesbreño that eventually led to
the death of Amparado.
We cannot accept Sesbreño’s argument that the executive clemency
restored his full civil and political rights. Sesbreño cited In re Atty.
Parcasio10 to bolster his argument. In thatcase, Atty. Parcasio was granted
"an absolute and unconditional pardon"11 which restored his "full civil and
political rights,"12 a circumstance not present inthese cases. Here, the
Order of Commutation13 did not state that the pardon was absolute and
unconditional. The accessory penalties were not mentioned when the
original sentence was recited in the Order of Commutation and they were
also not mentioned in stating the commuted sentence. It only states: By
virtue of the authority conferred upon me by the Constitution and upon
the recommendation of the Board of Pardons and Parole, the original
sentence of prisoner RAUL SESBREÑO Y HERDA convicted by the Regional
Trial Court, Cebu City and Supreme Court and sentenced to an
indeterminate prison term of from 9 years and 1 day to 16 years and 4
months imprisonment and to pay an indemnity of ₱50,000.00 is/are
hereby commuted to an indeterminate prison term of from 7 years and 6
months to 10 years imprisonment and to pay an indemnity of
₱50,000.00.14
Again, there was no mention that the executive clemency was absolute
and unconditional and restored Sesbreño to his full civil and political rights.
There are four acts of executive clemency that the President can extend:
the President can grant reprieves, commutations, pardons, and remit fines
and forfeitures, after conviction by final judgment.15 In this case, the
executive clemency merely "commuted to an indeterminate prison term of
7 years and 6 months to 10 years imprisonment" the penalty imposed on
Sesbrefio. Commutation is a mere reduction of penalty. 16 Commutation
only partially extinguished criminal liability.17 The penalty for Sesbrefio' s
crime was never wiped out. He served the commuted or reduced penalty,
for which reason he was released from prison. More importantly, the Final
Release and Discharge18 stated that "[i]t is understood that such x x x
accessory penalties of the law as have not been expressly remitted herein
shall subsist." Hence, the Parcasio case has no application here. Even if
Sesbrefio has been granted pardon, there is nothing in the records that
shows that it was a full and unconditional pardon. In addition, the practice
of law is not a right but a privilege.19 It is granted only to those possessing
good moral character.20 A violation of the high moral standards of the legal
profession justifies the imposition of the appropriate penalty against a
lawyer, including the penalty of disbarment.21
WHEREFORE, respondent Raul H. Sesbrefio is DISBARRED effective
immediately upon his receipt of this Decision.
Let copies of this Decision be furnished the Office of the Bar Confidant, the
Integrated Bar of the Philippines for distribution to all its chapters, and the
Office of the Court Administrator for dissemination to all courts all over the
country. Let a copy of this Decision be attached to the personal records of
respondent.
SO ORDERED.
A.C. No. 10134 November 26, 2014
PHILIPPINE ASSOCIATION OF COURT EMPLOYEES (PACE), represented by
its President, ATTY. VIRGINIA C. RAFAEL, Complainant,
vs.
ATTY. EDNA M. ALIBUTDAN-DIAZ, Respondent.
DECISION
MENDOZA, J.:
This resolves the complaint for suspension or disbarment filed by the
Philippine Association of Court Employees (PACE) through its president,
Atty. Virginia C. Rafael (Atty. Rafael), on July 17, 2008 against Atty. Edna M.
Alibutdan-Diaz (Atty. Diaz), former National Treasurer of PACE, before the
Integrated Bar of the Philippines (IBP).1
PACE, the umbrella association of 1st and 2nd level court employees in the
Judiciary held its 11th National Convention/Seminar in Davao City from
October 6 to 8, 2005. As then National Treasurer of PACE, Atty. Diaz was
entrusted with all the money matters of PACE.
The complainant alleged that the liquidation for the 11th PACE national
convention was submitted by Atty. Diaz only on March 29, 2007, during
the 12th PACE national convention in Iloilo City2; that during the 12th
convention, an election of officers was conducted and Atty. Diaz ran for
the position of National Treasurer, but she was not elected; that on the
last day of the convention or on March 31, 2007,the outgoing Board of
Directors, including Atty. Diaz, passed and approved Resolution No. 1-2007
appropriating the amount of 30,000.00as term-end bonus for each PACE
official qualified thereto; that Atty. Diaz did not submit a liquidation report
for the 12th convention; that there was no turn over of monies belonging
to the association as a matter of procedure despite a letter of demand,
dated June 20, 2007 sent to Atty. Diaz;3 and that the new set of PACE
officers issued Board Resolution No. 00-07 directing past president, Rosita
D. Amizola; and past treasurer, Atty. Diaz, to explain why they failed to
liquidate the finances of PACE for the Davao and Iloilo conventions.4
In her defense, Atty. Diaz countered that she had filed the Statement of
Liquidation for the 11th national convention in Davao in less than a week
after the said convention; that it was duly audited by the national auditor,
Letecia Agbayani; that the net proceeds of that convention was "fully
accounted, liquidated and entirely deposited to PACE accounts;"5 that she
also filed the Statement of Liquidation for the 12th national convention on
May 22, 2007; that the report, together with the cash, checks and original
receipts, were received by Rosita Amisola and witnessed by former PACE
officers;6 that she denied running for re-election as PACE national
treasurer during the Iloilo convention as she had already filed her
certificate of candidacy for Board Member of the First District of Ipil,
Zamboanga Sibugay;7 that the approval of the ₱30,000.00 term-end bonus
did not rest with her solely, rather, it was approved by the previous board
of directors; and that she never sponsored the bonus, as it was initiated by
Aliven Maderaza and seconded by Atty. Lourdes Garcia and Sarah Ampong.
On her part, Atty. Garcia averred that she was not privy to the
disbursement of the said term-end bonus.8
Initially, the case was assigned to IBP Commissioner Elpidio G. Soriano.
After an exchange of pleadings, the mandatory conference was held.
Afterwards, the protagonists were directed to submit their respective
position papers. Thereafter, the case was re-assigned to IBP Commissioner
Victor C. Fernandez (Commissioner Fernandez).9
The lone issue here is whether or not Atty. Diaz violated Chapter 1, Canon
1, Rule 1.01 of the Code of Professional Responsibility (CPR), which reads:
"A lawyer should not engage in an unlawful, dishonest, immoral or
deceitful conduct."
In his Report and Recommendation, dated June 28, 2010, Commissioner
Fernandez recommended the dismissal of the case against Atty. Diaz for
lack of merit. Atty. Diaz offered documentary evidence to show that she
was able to submit the liquidation reports for the two aforementioned
conventions of PACE. He also took note that Atty. Rafael herself
acknowledged the liquidation report made by Atty. Diaz with respect to
the Davao City convention.10 As to the sufficiency and completeness of
these reports, this would be better resolvedthrough an audit rather than in
disbarment proceedings.1âwphi1 Besides, Commissioner Fernandez did
not consider the position of Atty. Diaz as national treasurer of PACE to
have any connection with her being as a lawyer. Thus, according to him,
she should be sanctioned in accordance with the by-laws of PACE instead
of a disbarment case.11
As regards the accusation that Atty. Diaz ran for re-election in the PACE
elections even though she was no longer connected with the Judiciary and
therefore disqualified, Commissioner Fernandez opined that the best
evidence, which was the "certificate of candidacy," was never
offered,12 and that Atty. Diaz, being a lawyer, knew that her bid for re-
election would be a useless exercise since she would not beable to assume
office if she won.13
Finally, Commissioner Fernandez believed Atty. Diaz’s assertion that she
never sponsored the appropriation of the 30,000.00 term-end bonus and
that the approval of Resolution No. 1-2007 was a collegial action among
the Board of Directors. Again, Commissioner Fernandez was of the view
that her participation in the passage of the questioned board resolution
was not connected to her being a lawyer.14
On November 19, 2011, the IBP Board of Governors (IBP-BOG) passed a
resolution adopting and approving the report and recommendation of
Commissioner Fernandez, and dismissed the complaint against Atty. Diaz. 15
On reconsideration, the IBP-BOG issued the Extended Resolution,16 dated
June 21, 2013, granting the complainant’s motion for reconsideration. It
reversedand set asideits earlier resolution and suspended Atty. Diaz from
the practice of law for one (1) year.17
The IBP-BOG explained that the questions regarding (i) Atty. Diaz’
liquidation of PACE funds;(ii) her running for re-election when she was no
longer with the Judiciary; and (iii) her entitlement to the term-end bonus
when she was no longer working in the Judiciary, constituted a "triple -
whammy" of questionable actions18 committed by Atty. Diaz in
contravention of Rule 1.01 of the CPR.
The Court’s Ruling
This Court agrees with the IBP-BOG and adopts its June 21, 2013 Extended
Resolution. Everyone should keep in mind that the practice of law is only a
privilege. It is definitely not a right. Inorder to enjoy this privilege, one
must show that he possesses, and continues to possess, the qualifications
required by law for the conferment of such privilege.
One of those requirements is the observance of honesty and candor.
Candor in all their dealings is the very essence of a practitioner's honorable
membership in the legal profession. Lawyers are required to act with the
highest standard of truthfulness, fair play and nobility in the conduct of
litigation and in their relations with their clients, the opposing parties, the
other counsels and the courts. They are bound by their oath to speak the
truth and to conduct themselves according to the best of their knowledge
and discretion, and with fidelity to the courts and their clients. 19Time and
again, the Court has held that the practice of law is granted only to those
of good moral character. The Bar maintains a high standard of honesty and
fair dealing. Thus, lawyers must conduct themselves beyond reproach at all
times, whether they are dealing with their clients or the public at large,
and a violation of the high moral standards of the legal profession justifies
the imposition of the appropriate penalty, including suspension and
disbarment.20
It bears stressing that Atty. Diaz is a servant of the law and belongs to that
profession which society entrusts with the administration of law and the
dispensation of justice. For this, he or she is an exemplar for others to
emulate and should not engage in unlawful, dishonest, immoral or
deceitful conduct. Necessarily, this Court has been exacting in its demand
for integrity and good moral character from members of the Bar. They are
always expected to uphold the integrity and dignity of the legal profession
and to refrain from any act or omission which might lessen the trust and
confidence reposed by the public in the fidelity, honesty, and integrity of
this noble profession.21
Atty. Diaz' delay in the liquidation of the finances of PACE; her running for
re-election, including her non-admission that she ran for said election as
shown not by her certificate of candidacy but by the affidavits of former
PACE officers; and her involvement in the approval or passage of the
questioned term-end bonus of PACE officers, including herself even though
she was no longer working in the Judiciary, were definitely not the candor
the Court speaks of. There was much to be desired in Atty. Diaz' actions/
inactions.
WHEREFORE, Atty. Edna M. Alibutdan-Diaz is found GUILTY of violating
Chapter 1, Canon 1, Rule 1.01 of the Code of Professional Responsibility,
and is hereby SUSPENDED from the practice of law for a period of three (3)
months.
This decision shall be immediately executory.
Let copies of this Decision be furnished the Court Administrator for its
distribution to all courts of the land; the IBP; and the Office of the Bar
Confidant to be entered into respondent's personal records as a member
of the Philippine Bar.
SO ORDERED.
EN BANC
A.C. No. 7766 August 5, 2014
JOSE ALLAN TAN, Complainant,
vs.
PEDRO S. DIAMANTE, Respondent.
DECISION
PER CURIAM:
For the Court's resolution is an administrative Complaint1 for disbarment
dated February 1, 2008 filed by complainant Jose Allan Tan (complainant)
against respondent Pedro S. Diamante (respondent), charging him of
violating the Code of Professional Responsibility (CPR) and the lawyer’s
oath for fabricating and using a spurious court order, and for failing to
keep his client informed of the status of the case.
The Facts
On April 2, 2003, complainant, claiming to be a recognized illegitimate son
of the late Luis Tan, secured the services of respondent in order to pursue
a case for partition of property against the heirs of the late spouses Luis
and Natividad Valencia-Tan.2 After accepting the engagement, respondent
filed the corresponding complaint3 before the Regional Trial Court of
Bacolod City, Branch 46 (RTC), docketed as Civil Case No. 03-11947. The
complaint was eventually dismissed by the RTC in an Order4 dated July 25,
2007 for lack of cause of action and insufficiency of evidence.5 While
respondent was notified of such dismissal as early as August 14,
2007,6 complainant learned of the same only on August 24, 2007 when he
visited the former’s office.7 On such occasion, respondent allegedly asked
for the amount of ₱10,000.00 for the payment of appeal fees and other
costs, but since complainant could not produce the said amount at that
time, respondent, instead, asked and was given the amount of ₱500.00
purportedly as payment of the reservation fee for the filing of a notice of
appeal before the RTC.8 On September 12, 2007, Tan handed the amount
of ₱10,000.00 to respondent, who on even date, filed a notice of
appeal9 before the RTC.10
In an Order11 dated September 18, 2007, the RTC dismissed complainant’s
appeal for having been filed beyond the reglementary period provided for
by law. Respondent, however, did not disclose such fact and, instead,
showed complainant an Order12 dated November 9, 2007 purportedly
issued by the RTC (November 9, 2007 Order) directing the submission of
the results of a DNA testing to prove his filiation to the late Luis Tan, within
15 days from receipt of the notice. Considering the technical requirements
for such kind of testing, complainant proceeded to the RTC and requested
for an extension of the deadline for its submission. It was then that he
discovered that the November 9, 2007 Order was spurious, as certified by
the RTC’s Clerk of Court.13 Complainant also found out that, contrary to the
representations of respondent, his appeal had long been
dismissed.14 Aggrieved, he filed the instant administrative complaint for
disbarment against respondent.
In his Comments/Compliance15 dated September 4, 2009, respondent
alleged that it was complainant’s failure to timely produce the amount of
1,400.00 to pay for the appeal fees that resulted in the late filing of his
appeal. According to him, he informed complainant of the lapse of the
reglementary period to appeal, but the latter insisted in pursuing the
same. He also claimed to have assisted complainant "not for money or
malice" but being a desperate litigant, he was blamed for the court’s
unfavorable decision.16
The IBP’s Report and Recommendation
In a Report and Recommendation17 dated September 21, 2010, the
Integrated Bar of the Philippines (IBP) Investigating Commissioner found
respondent administratively liable, and accordingly recommended that the
penalty of suspension for a period of one (1) year be meted out against
him.18
The Investigating Commissioner found complainant’s imputations against
respondent to be well-founded, observing that instead of meeting
complainant’s allegations squarely, particularly, the issue of the
nondisclosure of the dismissal of the partition case, respondent
sidestepped and delved on arguments that hardly had an effect on the
issues at hand.19
Moreover, the Investigating Commissioner did not find credence in
respondent’s accusation that the spurious November 9, 2007 Order
originated from complainant, ratiocinating that it was respondent who was
motivated to fabricate the same to cover up his lapses that brought about
the dismissal of complainant’s appeal and make it appear that there is still
an available relief left for Tan.20
In a Resolution dated April 16, 2013, the IBP Board of Governors who deals with him has the right to expect not just a good amount of
unanimously adopted and approved the aforesaid report and professional learning and competence but also a whole-hearted fealty to
recommendation.21 the client’s cause.23

The Issue Before the Court
The essential issue in this case is whether or not respondent should be
held administratively liable for violating the CPR.
The Court’s Ruling
After a judicious perusal of the records, the Court concurs with the IBP’s
findings, subject to the modification of the recommended penalty to be
imposed upon respondent.
In the case at bar, records reveal that as of August 14, 2007, respondent
already knew of the dismissal of complainant’s partition case before the
RTC. Despite this fact, he never bothered to inform complainant of such
dismissal as the latter only knew of the same on August 24, 2007 when he
visited the former’s office. To add insult to injury, respondent was
inexcusably negligent in filing complainant’s appeal only on September 12,
2007, or way beyond the reglementary period therefor, thus resulting in its
outright dismissal. Clearly, respondent failed to exercise such skill, care,
and diligence as men of the legal profession commonly possess and
exercise in such matters of professional employment. 24

Worse, respondent attempted to conceal the dismissal of complainant’s

Under Rule 18.04, Canon 18 of the CPR, it is the lawyer’s duty to keep his
appeal by fabricating the November 9, 2007 Order which purportedly
client constantly updated on the developments of his case as it is crucial in
required a DNA testing to make it appear that complainant’s appeal had
maintaining the latter’s confidence, to wit:
been given due course, when in truth, the same had long been denied. In
so doing, respondent engaged in an unlawful, dishonest, and deceitful
CANON 18 – A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND
conduct that caused undue prejudice and unnecessary expenses on the
DILIGENCE.
part of complainant. Accordingly, respondent clearly violated Rule 1.01,
Canon 1 of the CPR, which provides:
Rule 18.04 – A lawyer shall keep the client informed of the status of his
case and shall respond within a reasonable time to client’s request for
CANON 1 – A lawyer shall uphold the constitution, obey the laws of the
information.
land and promote respect for law and legal processes.

As an officer of the court, it is the duty of an attorney to inform his client of

Rule 1.01 – A lawyer shall not engage in unlawful, dishonest, immoral or
whatever important information he may have acquired affecting his
deceitful conduct.
client’s case. He should notify his client of any adverse decision to enable
his client to decide whether to seek an appellate review thereof. Keeping
As officers of the court, lawyers are bound to maintain not only a high
the client informed of the developments of the case will minimize
standard of legal proficiency, but also of morality, honesty, integrity, and
misunderstanding and loss of trust and confidence in the attorney. The
fair dealing,25 failing in which whether in his personal or private capacity,
lawyer should not leave the client in the dark on how the lawyer is
he becomes unworthy to continue his practice of law.26 A lawyer’s
defending the client’s interests.22 In this connection, the lawyer must
inexcusable neglect to serve his client’s interests with utmost diligence and
constantly keep in mind that his actions, omissions, or nonfeasance would
competence as well as his engaging in unlawful, dishonest, and deceitful
be binding upon his client. Concomitantly, the lawyer is expected to be
acquainted with the rudiments of law and legal procedure, and a client
conduct in order to conceal such neglect should never be countenanced,
and thus, administratively sanctioned.
In view of the foregoing, respondent’s conduct of employing a crooked and
deceitful scheme to keep complainant in the dark and conceal his case’s
true status through the use of a falsified court order evidently constitutes
Gross Misconduct.27 His acts should not just be deemed as unacceptable
practices that are disgraceful and dishonorable; they reveal a basic moral
flaw that makes him unfit to practice law.28 In this regard, the Court’s
pronouncement in Sebastian v. Calis29 is instructive, viz.:
Deception and other fraudulent acts by a lawyer are disgraceful and
dishonorable. They reveal moral flaws in a lawyer.1âwphi1 They are
unacceptable practices. A lawyer’s relationship with others should be
characterized by the highest degree of good faith, fairness and candor. This
is the essence of the lawyer’s oath. The lawyer’s oath is not mere facile
words, drift and hollow, but a sacred trust that must be upheld and keep
inviolable. The nature of the office of an attorney requires that he should
be a person of good moral character. This requisite is not only a condition
precedent to the admission to the practice of law, its continued possession
is also essential for remaining in the practice of law. We have sternly
warned that any gross misconduct of a lawyer, whether in his professional
or private capacity, puts his moral character in serious doubt as a member
of the Bar, and renders him unfit to continue in the practice of
law.30 (Emphases and underscoring supplied)
Jurisprudence reveals that in analogous cases where lawyers failed to
inform their clients of the status of their respective cases, the Court
suspended them for a period of six (6) months. In Mejares v. Romana, 31 the
Court suspended the lawyer for the same period for his failure to timely
and adequately inform his clients of the dismissal of their petition. In the
same vein, in Penilla v. Alcid, Jr.,32 the same penalty was imposed on the
lawyer who consistently failed to update his client of the status of his
cases, notwithstanding several follow-ups.
However, in cases where lawyers engaged in unlawful, dishonest, and
deceitful conduct by falsifying documents, the Court found them guilty of
Gross Misconduct and disbarred them. In Brennisen v. Contawi,33 the Court
disbarred the lawyer who falsified a special power of attorney in order to
mortgage and sell his client’s property. Also, in Embido v. Pe,34 the penalty
of disbarment was meted out against the lawyer who falsified an in
existent court decision for a fee.
As already discussed, respondent committed acts of falsification in order to
misrepresent to his client, i.e., complainant, that he still had an available
remedy in his case, when in reality, his case had long been dismissed for
failure to timely file an appeal, thus, causing undue prejudice to the latter.
To the Court, respondent’s acts are so reprehensible, and his violations of
the CPR are so flagrant, exhibiting his moral unfitness and inability to
discharge his duties as a member of the bar. His actions erode rather than
enhance the public perception of the legal profession. Therefore, in view of
the totality of his violations, as well as the damage and prejudice caused to
his client, respondent deserves the ultimate punishment of disbarment.
WHEREFORE, respondent Pedro S. Diamante is hereby DISBARRED for
Gross Misconduct and violations of Rule 1.01, Canon 1, and Rule 18.04,
Canon 18 of the Code of Professional Responsibility, and his name is
ordered STRICKEN OFF from the roll of attorneys.
Let a copy of this Decision be attached to respondent Pedro S. Diamante's
record in this Court. Further, let copies of this Decision be furnished to the
Integrated Bar of the Philippines and the Office of the Court Administrator,
which is directed to circulate them to all the courts in the country for their
information and guidance.
SO ORDERED.
EN BANC
March 11, 2014
OCA IPI No. 12-204-CA-J
Re: VERIFIED COMPLAINT FOR DISBARMENT OF AMA LAND, INC.
(REPRESENTED BY JOSEPH B. USITA) AGAINST COURT OF APPEALS
ASSOCIATE JUSTICES HON. DANTON Q. BUESER, HON. SESINANDO E.
VILLON AND HON. RICARDO R. ROSARIO
DECISION
BERSAMIN, J.:
Unfounded administrative charges against sitting judges truly degrade
their judicial office, and interfere with the due performance of their work
for the Judiciary. The complainant may be held liable for indirect contempt
of court as a means of vindicating the integrity and reputation of the
judges and the Judiciary.
AMA Land, Inc., (AMALI) brought this administrative complaint against
Associate Justice Danton Q. Bueser, Associate Justice Sesinando E. Villon
and Associate Justice Ricardo R. Rosario, all members of the Court of
Appeals (CA), charging them with knowingly rendering an unjust judgment,
gross misconduct, and violation of their oaths on account of their
promulgation of the decision in C.A.-G.R. SP No. 118994 entitled Wack
Wack Residents Association, Inc. v. The Honorable Regional Trial Court of
Pasig City, Branch 264, Assigned in San Juan, and AMA Land, Inc.
Antecedents
AMALI is the owner and developer of the 37-storey condominium project
located along Epifanio Delos Santos Avenue corner Fordham Street in
Wack Wack, Mandaluyong City.1 Due to the project’s location, AMALI
would have to use Fordham Street as an access road and staging area for
the construction activities. In that regard, AMALI needed the consent of
the Wack Wack Residents Association, Inc. (WWRAI). Accordingly, AMALI
sent a notice to WWRAI, which ignored the notice. Left with no option,
AMALI set up a field office along Fordham Street that it enclosed with a
temporary fence. WWRAI allegedly tried to demolish the field office and
set up a fence to deny access to AMALI’s construction workers, which
prompted AMALI to file a petition for the enforcement of an easement of
right of way in the Regional Trial Court (RTC) in Pasig City. The petition,
which included an application for a temporary restraining order (TRO)
and/or writ of preliminary mandatory injunction (WPMI), was docketed as
Civil Case No. 65668.2 On July 24, 1997, the RTC granted AMALI’s prayer for
the WPMI.3
In the meantime, AMALI converted the condominium project into a 34-
storey building of mixed use (to be known as the AMA Residences) after
AMALI’s petition for corporate rehabilitation was approved.4
On January 26, 2010, WWRAI filed in Civil Case No. 65668 an urgent
motion to set for hearing its prayer for a TRO and/or writ of preliminary
injunction (WPI) contained in its answer. The denial of the prayer for
injunction by the RTC impelled WWRAI to bring a petition for certiorari
with an application for a TRO and/or writ of preliminary injunction in the
CA to enjoin the RTC from proceeding in Civil Case No. 65668.5
After hearing, the CA issued a TRO, which prompted AMALI to file an
Urgent Motion to Lift and/or Dissolve Temporary Restraining Order and
later on a Compliance and Motion for Reconsideration.
On July 28, 2011, the CA issued a preliminary injunction and required
AMALI to file its Comment. AMALI complied and filed a Comment which
also served as its motion for partial reconsideration of the July 28, 2011
Resolution. On October 12, 2011, AMALI filed an Urgent Motion to Resolve
and to Approve Counterbond. Allegedly, these motions were left
unresolved when the CA Tenth Division, which included Associate Justices
Bueser and Rosario, required the parties to submit their respective
memoranda.6
On June 14, 2012, the Special Former Tenth Division of the CA
promulgated a decision granting the petition of WWRAI.7
AMALI consequently filed a petition for review on certiorari in this Court,
docketed as G.R. No. 202342, entitled AMA Land, Inc. v. Wack Wack
Residents Association, Inc.8
AMALI then brought this administrative complaint, alleging that
respondent Justices had conspired with the counsels of WWRAI, namely:
Atty. Archibald F. de Mata and Atty. Myra Jennifer D. Jaud-Fetizanan, in
rendering an unjust judgment. AMALI stated that the decision of the CA
had been rendered in bad faith and with conscious and deliberate intent to
favor WWRAI, and to cause grave injustice to AMALI. In thereby knowingly
rendering an unjust judgment, respondent Justices were guilty of gross
misconduct, and violated Canon 1, Rule 1.01 and Canon 1, Rules 10.01 and
10.03 of the Code of Professional Responsibility, as well as Section 27, Rule
138 of the Rules of Court.
Issue
Are the respondent Justices liable for knowingly rendering an unjust
judgment and violating Canon 1, Rule 1.01; Canon 10, Rules 10.01 and
10.03 of the Code of Professional Responsibility; and Section 27, Rule 138
of the Rules of Court?
Ruling
The administrative complaint is bereft of merit.
In administrative proceedings, the complainant has the burden of proving
the allegations of the complaint by substantial evidence.9 Failure to do so
will lead to the dismissal of the complaint for its lack of merit. This is
because an administrative charge against any official of the Judiciary must
be supported by at least substantial evidence.10But when the charge
equates to a criminal offense, such that the judicial officer may suffer the
heavy sanctions of dismissal from the service, the showing of culpability on
the part of the judicial officer should be nothing short of proof beyond
reasonable doubt, especially because the charge is penal in character. 11
AMALI fell short of the requirements for establishing its charge of
knowingly rendering an unjust judgment against respondent Justices.
Knowingly rendering an unjust judgment constitutes a serious criminal
offense. Article 204, Revised Penal Code, provides that any judge who
"knowingly render[s] an unjust judgment in any case submitted to him for
decision" is punished with prision mayor and perpetual absolute
disqualification. To commit the offense, the offender must be a judge who
is adequately shown to have rendered an unjust judgment, not one who
merely committed an error of judgment or taken the unpopular side of a
controversial point of law.12 The term knowingly means "sure knowledge,
conscious and deliberate intention to do an injustice."13 Thus, the
complainant must not only prove beyond reasonable doubt that the
judgment is patently contrary to law or not supported by the evidence but
that it was also made with deliberate intent to perpetrate an injustice.
Good faith and the absence of malice, corrupt motives or improper
consideration are sufficient defenses that will shield a judge from the
charge of rendering an unjust decision. 14 In other words, the judge was
motivated by hatred, revenge, greed or some other similar motive in
issuing the judgment.15 Bad faith is, therefore, the ground for
liability.16 The failure of the judge to correctly interpret the law or to
properly appreciate the evidence presented does not necessarily render
him administratively liable.17
But who is to determine and declare that the judgment or final order that
the judicial officer knowingly rendered or issued was unjust? May such
determination and declaration be made in administrative investigations
and proceedings like a preliminary investigation by the public prosecutor?
The answers to these queries are obvious – only a superior court acting by
virtue of either its appellate or supervisory jurisdiction over the judicial
actions involved may make such determination and declaration.
Otherwise, the public prosecutor or administrative hearing officer may be
usurping a basic judicial power of review or supervision lodged by the
Constitution or by law elsewhere in the appellate court.
Moreover, AMALI’s allegations directly attacked the validity of the
proceedings in the CA through an administrative complaint. The attack in
this manner reflected the pernicious practice by disgruntled litigants and
their lawyers of resorting to administrative charges against sitting judges
instead of exhausting all their available remedies. We do not tolerate the
practice. In Re: Verified Complaint of Engr. Oscar L. Ongjoco, Chairman of
the Board/CEO of FH-GYMN Multi-Purpose and Transport Service
Cooperative, against Hon. Juan Q. Enriquez, Jr., Hon. Ramon M. Bato, Jr.
and Hon. Florito S. Macalino, Associate Justices, Court of Appeals, 18 we
emphatically held that the filing of administrative complaints or even
threats of the filing subverted and undermined the independence of the
Judiciary, to wit:
It is evident to us that Ongjoco’s objective in filing the administrative
complaint was to take respondent Justices to task for the regular
performance of their sworn duty of upholding the rule of law. He would
thereby lay the groundwork for getting back at them for not favoring his
unworthy cause. Such actuations cannot be tolerated at all, for even a
mere threat of administrative investigation and prosecution made against
a judge to influence or intimidate him in his regular performance of the
judicial office always subverts and undermines the independence of the
Judiciary.
We seize this occasion, therefore, to stress once again that disciplinary
proceedings and criminal actions brought against any judge in relation to
the performance of his official functions are neither complementary to nor
suppletory of appropriate judicial remedies, nor a substitute for such
remedies. Any party who may feel aggrieved should resort to these
remedies, and exhaust them, instead of resorting to disciplinary
proceedings and criminal actions. (Bold emphasis supplied)
It appears that AMALI is prone to bringing charges against judicial officers
who rule against it in its cases. That impression is not at all devoid of
basis.1âwphi1 The complaint herein is actually the second one that AMALI
has brought against respondent Justices in relation to the performance of
their judicial duty in the same case. In its first complaint entitled Re:
Verified Complaint of AMA Land, Inc. against Hon. Danton Q. Bueser, Hon.
Sesinando E. Villon and Hon. Ricardo R. Rosario, Associate Justices of the
Court of Appeals,19 AMALI accused respondent Justices of: (a) dishonesty
and violation of Republic Act No. 3019, gross misconduct, and knowingly
rendering an unjust judgment or order, in violation of Section 8, Rule 140
of the Rules of Court; and (b) violating provisions of the New Code of
Judicial Conduct. The Court dismissed the first complaint upon finding that
it centered on the propriety of the interlocutory orders issued by
respondent Justices in C.A.-G.R. SP No. 118994. The Court appropriately
observed:
A perusal of the records of the case as well as the parties’ respective
allegations disclosed that the acts complained of relate to the validity of
the proceedings before the respondent CA Justices and the propriety of
their orders in CA-G.R. SP No. 118994 which were done in the exercise of
their judicial functions. Jurisprudence is replete with cases holding that
errors, if any, committed by a judge in the exercise of his adjudicative
functions cannot be corrected through administrative proceedings, but
should instead be assailed through available judicial remedies. Disciplinary
proceedings against justices do not complement, supplement or substitute
judicial remedies and, thus, cannot be pursued simultaneously with the
judicial remedies accorded to parties aggrieved by their erroneous orders
or judgments.
xxxx
In this case, AMALI had already filed a petition for review on certiorari
challenging the questioned order of the respondent CA justices which is
still pending final action by the Court. Consequently, a decision on the
validity of the proceedings and propriety of the orders of the respondent
CA Justices in this administrative proceeding would be premature. Besides,
even if the subject decision or portions thereof turn out to be erroneous,
administrative liability will only attach upon proof that the actions of the
respondent CA Justices were motivated by bad faith, dishonesty or hatred,
or attended by fraud or corruption, which were not sufficiently shown to
exist in this case. Neither was bias as well as partiality established. Acts or
conduct of the judge clearly indicative of arbitrariness or prejudice must be
clearly shown before he can be branded the stigma of being biased and
partial. In the same vein, bad faith or malice cannot be inferred simply
because the judgment or order is adverse to a party. Here, other than
AMALI’s bare and self-serving claim that respondent CA Justices "conspired
with WWRAI’s counsel in knowingly and in bad faith rendering an unjust
judgment and in committing xxx other misconduct," no act clearly
indicative of bias and partiality was alleged except for the claim that
respondent CA Justices misapplied the law and jurisprudence. Thus, the
presumption that the respondent judge has regularly performed his duties
shall prevail. Moreover, the matters raised are best addressed to the
evaluation of the Court in the resolution of AMALI’s petition for review on
certiorari.
Finally, resort to administrative disciplinary action prior to the final
resolution of the judicial issues involved constitutes an abuse of court
processes that serves to disrupt rather than promote the orderly
administration of justice and further clog the courts’ dockets. Those who
seek relief from the courts must not be allowed to ignore basic legal rules
and abuse of court processes in their efforts to vindicate their rights. (Bold
emphasis supplied)
This administrative case is no different from the first. They are identical,
with the complaint herein containing only a few but insignificant changes
in relation to the first. Both were intended to intimidate or to disparage
respondent Justices in the performance of their judicial functions.
The filing of the meritless administrative complaints by AMALI was not only
repulsive, but also an outright disrespect of the authority of the CA and of
this Court. Unfounded administrative charges against judges truly degrade
the judicial office, and interfere with the due performance of their work for
the Judiciary. Although the Court did not then deem fit to hold in the first
administrative case AMALI or its representative personally responsible for
the unfounded charges brought against respondent Justices, it is now time,
proper and imperative to do so in order to uphold the dignity and
reputation of respondent Justices, of the CA itself, and of the rest of the
Judiciary. AMALI and its representatives have thereby demonstrated their
penchant for harassment of the judges who did not do its bidding, and
they have not stopped doing so even if the latter were sitting judges. To
tolerate the actuations of AMALI and its representatives would be to
reward them with undeserved impunity for an obviously wrong attitude
towards the Court and its judicial officers.
Indeed, no judicial officer should have to fear or apprehend being held to
account or to answer for performing his judicial functions and office
because such performance is a matter of public duty and responsibility.
The office and duty to render and administer justice area function of
sovereignty, and should not be simply taken for granted. As a recognized
commentator on public offices and public officers has written:20
It is a general principle, abundantly sustained by authority and reason, that
no civil action can be sustained against a judicial officer for the recovery of
damages by one claiming to have been injured by the officer’s judicial
action within his jurisdiction. From the very nature of the case, the officer
is called upon by law to exercise his judgment in the matter, and the law
holds his duty to the individual to be performed when he has exercised it,
however erroneous or disastrous in its consequences it may appear either
to the party or to others.
A number of reasons, any one of them sufficient, have been advanced in
support of this rule. Thus it is said of the judge: "His doing justice as
between particular individuals, when they have a controversy before him,
is not the end and object which were in view when his court was created,
and he was selected to preside over or sit in it. Courts are created on
public grounds; they are to do justice as between suitors, to the end that
peace and order may prevail in the political society, and that rights may be
protected and preserved. The duty is public, and the end to be
accomplished is public; the individual advantage or loss results from the
proper and thorough or improper and imperfect performance of a duty for
which his controversy is only the occasion. The judge performs his duty to
the public by doing justice between individuals, or, if he fails to do justice
as between individuals, he may be called to account by the State in such
form and before such tribunal as the law may have provided. But as the
duty neglected is not a duty to the individual, civil redress, as for an
individual injury, is not admissible."21
Accordingly, we now demand that AMALI’s authorized representative,
Joseph B. Usita, its Senior Assistant Vice President, and the Members of
the Board of Directors of AMALI who had authorized Usita to file the
present complaint, to show cause in writing why they should not be held in
indirect contempt of court for bringing the unfounded and baseless
charges against respondent Justices not only once but twice. To be clear,
the filing of unfounded and baseless administrative charges against sitting
judicial officers may constitute indirect contempt under Section 3(d), Rule
71 of the Rules of Court, to wit:
Section 3. Indirect contempt to be punished after charge and hearing. —
After a charge in writing has been filed, and an opportunity given to the
respondent to comment thereon within such period as may be fixed by the
court and to be heard by himself or counsel, a person guilty of any of the
following acts may be punished for indirect contempt:
(a)Misbehavior of an officer of a court in the performance of his
official duties or in his official transactions;
(b)Disobedience of or resistance to a lawful writ, process, order,
or judgment of a court, including the act of a person who, after
being dispossessed or ejected from any real property by the
judgment or process of any court of competent jurisdiction,
enters or attempts or induces another to enter into or upon such
real property, for the purpose of executing acts of ownership or
possession, or in any manner disturbs the possession given to the
person adjudged to be entitled thereto;
(c)Any abuse of or any unlawful interference with the processes
or proceedings of a court not constituting direct contempt under
section 1 of this Rule;
(d)Any improper conduct tending, directly or indirectly, to
impede, obstruct, or degrade the administration of justice;
(e)Assuming to be an attorney or an officer of a court, and acting
as such without authority;
(f)Failure to obey a subpoena duly served;
(g)The rescue, or attempted rescue, of a person or property in the
custody of an officer by virtue of an order or process of a court
held by him.
But nothing in this section shall be so construed as to prevent the court
from issuing process to bring the respondent into court, or from holding
him in custody pending such proceedings. (3a)
Anent indirect contempt, the Court said in Lorenzo Shipping Corporation v.
Distribution Management Association of the Philippines: 22
Contempt of court has been defined as a willful disregard or disobedience
of a public authority. In its broad sense, contempt is a disregard of, or
disobedience to, the rules or orders of a legislative or judicial body or an
interruption of its proceedings by disorderly behavior or insolent language
in its presence or so near thereto as to disturb its proceedings or to impair
the respect due to such a body. In its restricted and more usual sense,
contempt comprehends a despising of the authority, justice, or dignity of a
court. The phrase contempt of court is generic, embracing within its legal
signification a variety of different acts.
The power to punish for contempt is inherent in all courts, and need not
be specifically granted by statute. It lies at the core of the administration of
a judicial system. Indeed, there ought to be no question that courts have
the power by virtue of their very creation to impose silence, respect, and
decorum in their presence, submission to their lawful mandates, and to
preserve themselves and their officers from the approach and insults of
pollution. The power to punish for contempt essentially exists for the
preservation of order in judicial proceedings and for the enforcement of
judgments, orders, and mandates of the courts, and, consequently, for the
due administration of justice. The reason behind the power to punish for
contempt is that respect of the courts guarantees the stability of their
institution; without such guarantee, the institution of the courts would be
resting on a very shaky foundation.23 (Bold emphasis supplied)
ACCORDINGLY, the Court (a) DISMISSES the administrative complaint
against Associate Justice Danton Q. Bueser, Associate Justice Sesinando E.
Villon and Associate Justice Ricardo R. Rosario for its utter lack of merit;
and (b) ORDERS Joseph B. Usita, the Senior Assistant Vice President of
AMA Land, Inc., and all the members of the Board of Directors of AMA
Land, Inc. who had authorized Usita to bring the administrative complaint
against respondent Associate Justices to show cause in writing within 10
days from notice why they should not be punished for indirect contempt of
court for degrading the judicial office of respondent Associate Justices, and
for interfering with the due performance of their work for the Judiciary.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
EN BANC
A.C. No. 10681, February 03, 2015
SPOUSES HENRY A. CONCEPCION AND BLESILDA S.
CONCEPCION, Complainants, v. ATTY. ELMER A. DELA ROSA, Respondent.
DECISION
PERLAS-BERNABE, J.:
This is an administrative case that stemmed from a Verified
Complaint1 filed by complainants Spouses Henry A. Concepcion (Henry)
and Blesilda S. Concepcion (Blesilda; collectively complainants) against
respondent Atty. Elmer A. dela Rosa (respondent), charging him with gross
misconduct for violating, among others, Rule 16.04 of the Code of
Professional Responsibility (CPR).
The Facts
In their Verified Complaint, complainants alleged that from 19972 until
August 2008,3 respondent served as their retained lawyer and counsel. In
this capacity, respondent handled many of their cases and was consulted
on various legal matters, among others, the prospect of opening a
pawnshop business towards the end of 2005. Said business, however,
failed to materialize.4chanRoblesvirtualLawlibrary
Aware of the fact that complainants had money intact from their failed
business venture, respondent, on March 23, 2006, called Henry to borrow
the amount of P2,500,000.00, which he promised to return, with interest,
five (5) days thereafter. Henry consulted his wife, Blesilda, who, believing
that respondent would be soon returning the money, agreed to lend the
aforesaid sum to respondent. She thereby issued three (3) EastWest Bank
checks5 in respondent’s name:6chanRoblesvirtualLawlibrary
Check No. Date Amount Payee
0000561925 03-23-06 P750,000.00 Elmer dela Rosa
0000561926 03-23-06 P850,000.00 Elmer dela Rosa
0000561927 03-23-06 P900,000.00 Elmer dela Rosa
Total: P2,500,000.00
Upon receiving the checks, respondent signed a piece of paper containing:
(a) photocopies of the checks; and (b) an acknowledgment that he
received the originals of the checks and that he agreed to return the
P2,500,000.00, plus monthly interest of five percent (5%), within five (5)
days.7 In the afternoon of March 23, 2006, the foregoing checks were
personally encashed by respondent.8chanRoblesvirtualLawlibrary
On March 28, 2006, or the day respondent promised to return the money,
he failed to pay complainants. Thus, in April 2006, complainants began
demanding payment but respondent merely made repeated promises to
pay soon. On July 7, 2008, Blesilda sent a demand letter9 to respondent,
which the latter did not heed.10 On August 4, 2008, complainants, through
their new counsel, Atty. Kathryn Jessica dela Serna, sent another demand
letter11 to respondent.12 In his Reply,13 the latter denied borrowing any
money from the complainants. Instead, respondent claimed that a certain
Jean Charles Nault (Nault), one of his other clients, was the real debtor.
Complainants brought the matter to the Office of the Lupong
Tagapamayapa in Barangay Balulang, Cagayan de Oro City. The parties,
however, failed to reach a settlement.14chanRoblesvirtualLawlibrary
On January 11, 2010, the IBP-Misamis Oriental Chapter received
complainants’ letter-complaint15charging respondent with violation of Rule
16.04 of the CPR. The rule prohibits lawyers from borrowing money from
clients unless the latter’s interests are fully protected by the nature of the
case or by independent advice.16chanRoblesvirtualLawlibrary
In his Comment,17 respondent denied borrowing P2,500,000.00 from
complainants, insisting that Nault was the real debtor.18 He also claimed
that complainants had been attempting to collect from Nault and that he
was engaged for that specific purpose.19chanRoblesvirtualLawlibrary
In their letter-reply,20 complainants maintained that they extended the
loan to respondent alone, as evidenced by the checks issued in the latter’s
name. They categorically denied knowing Nault and pointed out that it
defies common sense for them to extend an unsecured loan in the amount
of P2,500,000.00 to a person they do not even know. Complainants also
submitted a copy of the Answer to Third Party Complaint 21 which Nault
filed as third-party defendant in a related collection case instituted by the
complainants against respondent.22 In said pleading, Nault explicitly denied
knowing complainants and alleged that it was respondent who incurred
the subject loan from them.23chanRoblesvirtualLawlibrary
On November 23, 2010, the IBP-Misamis Oriental Chapter endorsed the
letter-complaint to the IBP-Commission on Bar Discipline (CBD),24 which
was later docketed as CBD Case No. 11-2883.25 In the course of the
proceedings, respondent failed to appear during the scheduled mandatory
conferences.26Hence, the same were terminated and the parties were
directed to submit their respective position papers.27 Respondent,
however, did not submit any.cralawred
The IBP Report and Recommendation
On April 19, 2013, the IBP Investigating Commissioner, Jose I. de La Rama,
Jr. (Investigating Commissioner), issued his Report28 finding respondent
guilty of violating: (a) Rule 16.04 of the CPR which provides that a lawyer
shall not borrow money from his clients unless the client’s interests are
fully protected by the nature of the case or by independent advice; (b)
Canon 7 which states that a lawyer shall uphold the integrity and dignity of
the legal profession and support the activities of the IBP; and (c) Canon 16
which provides that a lawyer shall hold in trust all monies and properties of
his client that may come into his possession.29chanRoblesvirtualLawlibrary
The Investigating Commissioner observed that the checks were issued in
respondent’s name and that he personally received and encashed them.
Annex “E”30 of the Verified Complaint shows that respondent
acknowledged receipt of the three (3) EastWest Bank checks and agreed to
return the P2,500,000.00, plus a pro-rated monthly interest of five percent
(5%), within five (5) days.31chanRoblesvirtualLawlibrary
On the other hand, respondent’s claim that Nault was the real debtor was
found to be implausible. The Investigating Commissioner remarked that if
it is true that respondent was not the one who obtained the loan, he
would have responded to complainants’ demand letter; however, he did
not.32 He also observed that the acknowledgment33 Nault allegedly signed
appeared to have been prepared by respondent himself. 34 Finally, the
Investigating Commissioner cited Nault’s Answer to the Third Party
Complaint which categorically states that he does not even know the
complainants and that it was respondent alone who obtained the loan
from them.35chanRoblesvirtualLawlibrary
In fine, the Investigating Commissioner concluded that respondent’s
actions degraded the integrity of the legal profession and clearly violated
Rule 16.04 and Canons 7 and 16 of the CPR. Respondent’s failure to appear
during the mandatory conferences further showed his disrespect to the
IBP-CBD.36 Accordingly, the Investigating Commissioner recommended that
respondent be disbarred and that he be ordered to return the
P2,500,000.00 to complainants, with stipulated
interest.37chanRoblesvirtualLawlibrary
Finding the recommendation to be fully supported by the evidence on
record and by the applicable laws and rule, the IBP Board of Governors
adopted and approved the Investigating Commissioner’s Report in
Resolution No. XX-2013-617 dated May 11, 2013,38 but reduced the
penalty against the respondent to indefinite suspension from the practice
of law and ordered the return of the P2,500,000.00 to the complainants
with legal interest, instead of stipulated interest.
Respondent sought a reconsideration39 of Resolution No. XX-2013-617
which was, however, denied in Resolution No. XXI-2014-29440 dated May for them to extend a P2,500,000.00 loan without any collateral or security
3, 2014.cralawred to a person they do not even know. On the other hand, complainants were
able to submit documents showing respondent’s receipt of the checks and
The Issue Before the Court their encashment, as well as his agreement to return the P2,500,000.00
plus interest. This is bolstered by the fact that the loan transaction was
The central issue in this case is whether or not respondent should be held entered into during the existence of a lawyer-client relationship between
administratively liable for violating the CPR. him and complainants,45 allowing the former to wield a greater influence
over the latter in view of the trust and confidence inherently imbued in
The Court’s Ruling such relationship.

The Court concurs with the IBP’s findings except as to its recommended Under Rule 16.04, Canon 16 of the CPR, a lawyer is prohibited from
penalty and its directive to return the amount of P2,500,000.00, with legal borrowing money from his client unless the client’s interests are fully
interest, to complainants.cralawred protected:chanroblesvirtuallawlibrary

I. CANON 16 – A lawyer shall hold in trust all moneys and properties of his
clients that may come into his possession.
Respondent’s receipt of the P2,500,000.00 loan from complainants is
amply supported by substantial evidence. As the records bear out, Blesilda, Rule 16.04 – A lawyer shall not borrow money from his client unless the
on March 23, 2006, issued three (3) EastWest Bank Checks, in amounts client’s interests are fully protected by the nature of the case or by
totalling to P2,500,000.00, with respondent as the payee.41 Also, Annex independent advice. Neither shall a lawyer lend money to a client except,
“E”42 of the Verified Complaint shows that respondent acknowledged when in the interest of justice, he has to advance necessary expenses in a
receipt of the checks and agreed to pay the complainants the loan plus the legal matter he is handling for the client.”
pro-rated interest of five percent (5%) per month within five (5) days.43The
dorsal sides of the checks likewise show that respondent personally
The Court has repeatedly emphasized that the relationship between a
encashed the checks on the day they were issued.44 With respondent’s
lawyer and his client is one imbued with trust and confidence. And as true
direct transactional involvement and the actual benefit he derived
as any natural tendency goes, this “trust and confidence” is prone to
therefrom, absent too any credible indication to the contrary, the Court is
abuse. The rule against borrowing of money by a lawyer from his client is
thus convinced that respondent was indeed the one who borrowed the
intended to prevent the lawyer from taking advantage of his influence over
amount of P2,500,000.00 from complainants, which amount he had failed
his client.46 The rule presumes that the client is disadvantaged by the
to return, despite their insistent pleas.
lawyer’s ability to use all the legal maneuverings to renege on his
obligation.47 In Frias v. Atty. Lozada48 (Frias) the Court categorically
Respondent’s theory that Nault is the real debtor hardly inspires belief.
declared that a lawyer’s act of asking a client for a loan, as what herein
While respondent submitted a document purporting to be Nault’s
respondent did, is unethical, to wit:chanroblesvirtuallawlibrary
acknowledgment of his debt to the complainants, Nault, in his Answer to
Third Party Complaint, categorically denied knowing the complainants and
Likewise, her act of borrowing money from a client was a violation of
incurring the same obligation.
[Rule] 16.04 of the Code of Professional
Responsibility:ChanRoblesVirtualawlibrary
Moreover, as correctly pointed out by complainants, it would be illogical
A lawyer shall not borrow money from his client unless the client’s
interests are fully protected by the nature of the case and by independent
advice.
A lawyer’s act of asking a client for a loan, as what respondent did, is
very unethical. It comes within those acts considered as abuse of client’s
confidence.The canon presumes that the client is disadvantaged by the
lawyer’s ability to use all the legal maneuverings to renege on her
obligation.49 (Emphasis supplied)
As above-discussed, respondent borrowed money from complainants who
were his clients and whose interests, by the lack of any security on the
loan, were not fully protected. Owing to their trust and confidence in
respondent, complainants relied solely on the former’s word that he will
return the money plus interest within five (5) days. However, respondent
abused the same and reneged on his obligation, giving his previous clients
the runaround up to this day. Accordingly, there is no quibble that
respondent violated Rule 16.04 of the CPR.
In the same vein, the Court finds that respondent also violated Canon 7 of
the CPR which reads:chanroblesvirtuallawlibrary
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.
In unduly borrowing money from the complainants and by blatantly
refusing to pay the same, respondent abused the trust and confidence
reposed in him by his clients, and, in so doing, failed to uphold the integrity
and dignity of the legal profession. Thus, he should be equally held
administratively liable on this score.
That being said, the Court turns to the proper penalty to be imposed and
the propriety of the IBP’s return directive.cralawred
II.
The appropriate penalty for an errant lawyer depends on the exercise of
sound judicial discretion based on the surrounding
facts.50chanRoblesvirtualLawlibrary
In Frias, the Court suspended the lawyer from the practice of law for two
(2) years after borrowing P900,000.00 from her client, refusing to pay the
same despite court order, and representing conflicting
interests.51 Considering the greater amount involved in this case and
respondent’s continuous refusal to pay his debt, the Court deems it apt to
suspend him from the practice of law for three (3) years, instead of the
IBP’s recommendation to suspend him indefinitely.
The Court also deems it appropriate to modify the IBP’s Resolution insofar
as it orders respondent to return to complainants the amount of
P2,500,000.00 and the legal interest thereon. It is settled that in
disciplinary proceedings against lawyers, the only issue is whether the
officer of the court is still fit to be allowed to continue as a member of the
Bar.52 In such cases, the Court’s only concern is the determination of
respondent’s administrative liability; it should not involve his civil liability
for money received from his client in a transaction separate, distinct, and
not intrinsically linked to his professional engagement. In this case,
respondent received the P2,500,000.00 as a loan from complainants and
not in consideration of his professional services. Hence, the IBP’s
recommended return of the aforementioned sum lies beyond the ambit of
this administrative case, and thus cannot be sustained.chanrobleslaw
WHEREFORE, respondent Atty. Elmer A. dela Rosa is found guilty of
violating Canon 7 and Rule 16.04, Canon 16 of the Code of Professional
Responsibility. Accordingly, he is hereby SUSPENDED from the practice of
law for a period of three (3) years effective upon finality of this Decision,
with a stern warning that a commission of the same or similar acts will be
dealt with more severely. This Decision is immediately executory upon
receipt.
Let a copy of this Decision be furnished the Office of the Bar Confidant, the
Integrated Bar of the Philippines, and the Office of the Court
Administration for circulation to all the courts.

THIRD DIVISION
G.R. No. 191247, July 10, 2013
FRANCISCO L. ROSARIO, JR., Petitioner, v. LELLANI DE GUZMAN, ARLEEN
DE GUZMAN, PHILIP RYAN DE GUZMAN, AND ROSELLA DE GUZMAN
BAUTISTA, Respondents.
DECISION
MENDOZA, J.:
This petition for review on certiorari under Rule 45 of the Rules of Court
seeks to set aside the November 23, 20091 and the February 11,
20102 Orders of the Regional Trial Court, Branch 7, Manila (RTC), in Civil
Case No. 89-50138, entitled "Loreta A. Chong v. Sps. Pedro and Rosita de
Guzman," denying the Motion to Determine Attorney's Fees filed by the
petitioner.
The Facts
Sometime in August 1990, Spouses Pedro and Rosita de Guzman (Spouses
de Guzman) engaged the legal services of Atty. Francisco L. Rosario, Jr.
(petitioner) as defense counsel in the complaint filed against them by one
Loreta A. Chong (Chong) for annulment of contract and recovery of
possession with damages involving a parcel of land in Parañaque City,
covered by Transfer Certificate of Title (TCT) No. 1292, with an area of 266
square meters, more or less. Petitioner’s legal services commenced from
the RTC and ended up in this Court.3 Spouses de Guzman, represented by
petitioner, won their case at all levels. While the case was pending before
this Court, Spouses de Guzman died in a vehicular accident. Thereafter,
they were substituted by their children, namely: Rosella de Guzman-
Bautista, Lellani de Guzman, Arleen de Guzman, and Philip Ryan de
Guzman (respondents).4
On September 8, 2009, petitioner filed the Motion to Determine
Attorney’s Fees5 before the RTC. He alleged, among others, that he had a
verbal agreement with the deceased Spouses de Guzman that he would
get 25% of the market value of the subject land if the complaint filed
against them by Chong would be dismissed. Despite the fact that he had
successfully represented them, respondents refused his written demand
for payment of the contracted attorney’s fees. Petitioner insisted that he
was entitled to an amount equivalent to 25% percent of the value of the
subject land on the basis of quantum meruit.
On November 23, 2009, the RTC rendered the assailed order denying
petitioner’s motion on the ground that it was filed out of time. The RTC
stated that the said motion was filed after the judgment rendered in the
subject case, as affirmed by this Court, had long become final and
executory on October 31, 2007. The RTC wrote that considering that the
motion was filed too late, it had already lost jurisdiction over the case
because a final decision could not be amended or corrected except for
clerical errors or mistakes. There would be a variance of the judgment
rendered if his claim for attorney’s fees would still be included.
Petitioner filed a motion for reconsideration, but it was denied by the RTC
for lack of merit. Hence, this petition.
The Issues
This petition is anchored on the following grounds:cralavvonlinelawlibrary
I
THE TRIAL COURT COMMITTED A REVERSIBLE ERROR IN DENYING THE
MOTION TO DETERMINE ATTORNEY’S FEES ON THE GROUND THAT IT LOST
JURISDICTION OVER THE CASE SINCE THE JUDGMENT IN THE CASE HAS
BECOME FINAL AND EXECUTORY;chanroblesvirtualawlibrary
II

THE TRIAL COURT SERIOUSLY ERRED IN DECLARING THAT PETITIONER’S
CLAIM FOR ATTORNEY’S FEES WOULD RESULT IN A VARIANCE OF THE
JUDGMENT THAT HAS LONG BECOME FINAL AND
EXECUTORY;chanroblesvirtualawlibrary
III
THE TRIAL COURT ERRED IN NOT DECLARING THAT THE FINALITY OF THE
DECISION DID NOT BAR PETITIONER FROM FILING THE MOTION TO
RECOVER HIS ATTORNEY’S FEES.6nadcralavvonlinelawlibrary
Petitioner claims that Spouses de Guzman engaged his legal services and
orally agreed to pay him 25% of the market value of the subject land. He
argues that a motion to recover attorney’s fees can be filed and
entertained by the court before and after the judgment becomes final.
Moreover, his oral contract with the deceased spouses can be considered a
quasi-contract upon which an action can be commenced within six (6)
years, pursuant to Article 1145 of the Civil Code. Because his motion was
filed on September 8, 2009, he insists that it was not yet barred by
prescription.7
For their part, respondents counter that the motion was belatedly filed
and, as such, it could no longer be granted. In addition, the RTC had
already resolved the issue when it awarded the amount of ?10,000.00 as
attorney’s fees. Respondents further assert that the law, specifically Article
2208 of the Civil Code, allows the recovery of attorney’s fees under a
written agreement. The alleged understanding between their deceased
parents and petitioner, however, was never put in writing. They also aver
that they did not have any knowledge or information about the existence
of an oral contract, contrary to petitioner’s claims. At any rate, the
respondents believe that the amount of 25% of the market value of the lot
is excessive and unconscionable.8
The Court’s Ruling
Preliminarily, the Court notes that the petitioner filed this petition for
review on certiorari under Rule 45 of the Rules of Court because of the
denial of his motion to determine attorney’s fees by the RTC. Apparently,
the petitioner pursued the wrong remedy. Instead of a petition for review
under Rule 45, he should have filed a petition for certiorari under Rule 65
because this case involves an error of jurisdiction or grave abuse of
discretion on the part of the trial court.
Moreover, petitioner violated the doctrine of hierarchy of courts which
prohibits direct resort to this Court unless the appropriate remedy cannot
be obtained in the lower tribunals.9 In this case, petitioner should have
first elevated the case to the Court of Appeals (CA) which has concurrent
jurisdiction, together with this Court, over special civil actions
for certiorari.10 Even so, this principle is not absolute and admits of certain
exceptions, such as in this case, when it is demanded by the broader
interest of justice.11
Indeed, on several occasions, this Court has allowed a petition to prosper
despite the utilization of an improper remedy with the reasoning that the
inflexibility or rigidity of the application of the rules of procedure must give
way to serve the higher ends of justice. The strict application of procedural
technicalities should not hinder the speedy disposition of the case on the
merits.12 Thus, this Court deems it expedient to consider this petition as
having been filed under Rule 65.
With respect to the merits of the case, the Court finds in favor of
petitioner.
In order to resolve the issues in this case, it is necessary to discuss the two
concepts of attorney’s fees – ordinary and extraordinary. In its ordinary
sense, it is the reasonable compensation paid to a lawyer by his client for
legal services rendered. In its extraordinary concept, it is awarded by the
court to the successful litigant to be paid by the losing party as indemnity
for damages.13 Although both concepts are similar in some respects, they
differ from each other, as further explained below:cralavvonlinelawlibrary
The attorney’s fee which a court may, in proper cases, award to a winning
litigant is, strictly speaking, an item of damages. It differs from that which
a client pays his counsel for the latter’s professional services. However, the
two concepts have many things in common that a treatment of the subject
is necessary. The award that the court may grant to a successful party by
way of attorney’s fee is an indemnity for damagessustained by him in
prosecuting or defending, through counsel, his cause in court. It may be
decreed in favor of the party, not his lawyer, in any of the instances
authorized by law. On the other hand, the attorney’s fee which a client
pays his counsel refers to the compensation for the latter’s services. The
losing party against whom damages by way of attorney’s fees may be
assessed is not bound by, nor is his liability dependent upon, the fee
arrangement of the prevailing party with his lawyer. The amount stipulated
in such fee arrangement may, however, be taken into account by the court
in fixing the amount of counsel fees as an element of damages.
The fee as an item of damages belongs to the party litigant and not to his
lawyer. It forms part of his judgment recoveries against the losing party.
The client and his lawyer may, however, agree that whatever attorney’s
fee as an element of damages the court may award shall pertain to the
lawyer as his compensation or as part thereof. In such a case, the court
upon proper motion may require the losing party to pay such fee directly
to the lawyer of the prevailing party.
The two concepts of attorney’s fees are similar in other respects. They
both require, as a prerequisite to their grant, the intervention of or the
rendition of professional services by a lawyer. As a client may not be held
liable for counsel fees in favor of his lawyer who never rendered services,
so too may a party be not held liable for attorney’s fees as damages in
favor of the winning party who enforced his rights without the assistance
of counsel. Moreover, both fees are subject to judicial control and
modification. And the rules governing the determination of their
reasonable amount are applicable in one as in the other.14 [Emphases and
underscoring supplied]
In the case at bench, the attorney’s fees being claimed by the petitioner
refers to the compensation for professional services rendered, and not as
indemnity for damages. He is demanding payment from respondents for
having successfully handled the civil case filed by Chong against Spouses de
Guzman. The award of attorney’s fees by the RTC in the amount of
P10,000.00 in favor of Spouses de Guzman, which was subsequently
affirmed by the CA and this Court, is of no moment. The said award, made
in its extraordinary concept as indemnity for damages, forms part of the
judgment recoverable against the losing party and is to be paid directly to
Spouses de Guzman (substituted by respondents) and not to petitioner.
Thus, to grant petitioner’s motion to determine attorney’s fees would not
result in a double award of attorney’s fees. And, contrary to the RTC ruling,
there would be no amendment of a final and executory decision or
variance in judgment.
The Court now addresses two (2) important questions: (1) How can
attorney’s fees for professional services be recovered? (2) When can an
action for attorney’s fees for professional services be filed? The case
of Traders Royal Bank Employees Union-Independent v. NLRC15 is
instructive:cralavvonlinelawlibrary
As an adjunctive episode of the action for the recovery of bonus
differentials in NLRC-NCR Certified Case No. 0466, private respondent’s
present claim for attorney’s fees may be filed before the NLRC even
though or, better stated, especially after its earlier decision had been
reviewed and partially affirmed. It is well settled that a claim for
attorney’s fees may be asserted either in the very action in which the
services of a lawyer had been rendered or in a separate action.
With respect to the first situation, the remedy for recovering attorney’s
fees as an incident of the main action may be availed of only when
something is due to the client. Attorney’s fees cannot be determined until
after the main litigation has been decided and the subject of the recovery
is at the disposition of the court. The issue over attorney’s fees only arises
when something has been recovered from which the fee is to be paid.
While a claim for attorney’s fees may be filed before the judgment is
rendered, the determination as to the propriety of the fees or as to the
amount thereof will have to be held in abeyance until the main case from
which the lawyer’s claim for attorney’s fees may arise has become final.
Otherwise, the determination to be made by the courts will be
premature. Of course, a petition for attorney’s fees may be filed before
the judgment in favor of the client is satisfied or the proceeds thereof
delivered to the client.
It is apparent from the foregoing discussion that a lawyer has two options
as to when to file his claim for professional fees. Hence, private
respondent was well within his rights when he made his claim and
waited for the finality of the judgment for holiday pay differential,
instead of filing it ahead of the award’s complete resolution. To declare
that a lawyer may file a claim for fees in the same action only before the
judgment is reviewed by a higher tribunal would deprive him of his
aforestated options and render ineffective the foregoing
pronouncements of this Court. [Emphases and underscoring supplied]
In this case, petitioner opted to file his claim as an incident in the main
action, which is permitted by the rules. As to the timeliness of the filing,
this Court holds that the questioned motion to determine attorney’s fees
was seasonably filed.
The records show that the August 8, 1994 RTC decision became final and
executory on October 31, 2007. There is no dispute that petitioner filed his
Motion to Determine Attorney’s Fees on September 8, 2009, which was
only about one (1) year and eleven (11) months from the finality of the RTC
decision. Because petitioner claims to have had an oral contract of
attorney’s fees with the deceased spouses, Article 1145 of the Civil
Code16 allows him a period of six (6) years within which to file an action to
recover professional fees for services rendered. Respondents never
asserted or provided any evidence that Spouses de Guzman refused
petitioner’s legal representation. For this reason, petitioner’s cause of
action began to run only from the time the respondents refused to pay him
his attorney’s fees, as similarly held in the case of Anido v. Negado:17
In the case at bar, private respondent’s allegation in the complaint that
petitioners refused to sign the contract for legal services in October 1978,
and his filing of the complaint only on November 23, 1987 or more than
nine years after his cause of action arising from the breach of the oral
contract between him and petitioners point to the conclusion that the six-
year prescriptive period within which to file an action based on such oral
contract under Article 1145 of the Civil Code had already lapsed.
As a lawyer, private respondent should have known that he only had six
years from the time petitioners refused to sign the contract for legal
services and to acknowledge that they had engaged his services for the
settlement of their parents’ estate within which to file his complaint for
collection of legal fees for the services which he rendered in their
favor. [Emphases supplied]
At this juncture, having established that petitioner is entitled to attorney’s
fees and that he filed his claim well within the prescribed period, the
proper remedy is to remand the case to the RTC for the determination of
the correct amount of attorney’s fees. Such a procedural route, however,
would only contribute to the delay of the final disposition of the
controversy as any ruling by the trial court on the matter would still be
open for questioning before the CA and this Court. In the interest of
justice, this Court deems it prudent to suspend the rules and simply
resolve the matter at this level. The Court has previously exercised its
discretion in the same way in National Power Corporation v. Heirs of
Macabangkit Sangkay:18
In the event of a dispute as to the amount of fees between the attorney
and his client, and the intervention of the courts is sought, the
determination requires that there be evidence to prove the amount of fees
and the extent and value of the services rendered, taking into account the
facts determinative thereof. Ordinarily, therefore, the determination of the
attorney’s fees on quantum meruit is remanded to the lower court for the
purpose. However, it will be just and equitable to now assess and fix the
attorney’s fees of both attorneys in order that the resolution of “a
comparatively simple controversy,” as Justice Regalado put it in Traders
Royal Bank Employees Union-Independent v. NLRC, would not be
needlessly prolonged, by taking into due consideration the accepted
guidelines and so much of the pertinent data as are extant in the
records.19 [Emphasis supplied]
With respect to petitioner’s entitlement to the claimed attorney’s fees, it is
the Court’s considered view that he is deserving of it and that the amount
should be based on quantum meruit.
Quantum meruit – literally meaning as much as he deserves – is used as
basis for determining an attorney’s professional fees in the absence of an
express agreement. The recovery of attorney’s fees on the basis
of quantum meruit is a device that prevents an unscrupulous client from
running away with the fruits of the legal services of counsel without paying
for it and also avoids unjust enrichment on the part of the attorney
himself. An attorney must show that he is entitled to reasonable
compensation for the effort in pursuing the client’s cause, taking into
account certain factors in fixing the amount of legal fees.20
Rule 20.01 of the Code of Professional Responsibility lists the guidelines for
determining the proper amount of attorney fees, to
wit:cralavvonlinelawlibrary
Rule 20.1 – A lawyer shall be guided by the following factors in
determining his fees:cralavvonlinelawlibrary
a) The time spent and the extent of the services rendered or
required;chanroblesvirtualawlibrary
b) The novelty and difficulty of the questions
involved;chanroblesvirtualawlibrary
c) The importance of the subject matter;chanroblesvirtualawlibrary
d) The skill demanded;chanroblesvirtualawlibrary
e) The probability of losing other employment as a result of acceptance of
the proffered case;chanroblesvirtualawlibrary
f) The customary charges for similar services and the schedule of fees of
the IBP chapter to which he belongs;chanroblesvirtualawlibrary
g) The amount involved in the controversy and the benefits resulting to the
client from the service;chanroblesvirtualawlibrary
h) The contingency or certainty of
compensation;chanroblesvirtualawlibrary
i) The character of the employment, whether occasional or established;
and
j) The professional standing of the lawyer.
Petitioner unquestionably rendered legal services for respondents’
deceased parents in the civil case for annulment of contract and recovery
of possession with damages. He successfully represented Spouses de
Guzman from the trial court level in 1990 up to this Court in 2007, for a
lengthy period of 17 years. After their tragic death in 2003, petitioner filed
a notice of death and a motion for substitution of parties with entry of
appearance and motion to resolve the case before this Court.21 As a
consequence of his efforts, the respondents were substituted in the place
of their parents and were benefited by the favorable outcome of the case.
As earlier mentioned, petitioner served as defense counsel for deceased
Spouses de Guzman and respondents for almost seventeen (17) years. The
Court is certain that it was not an easy task for petitioner to defend his
clients’ cause for such a long period of time, considering the heavy and
demanding legal workload of petitioner which included the research and
preparation of pleadings, the gathering of documentary proof, the court
appearances, and the various legal work necessary to the defense of
Spouses de Guzman. It cannot be denied that petitioner devoted much
time and energy in handling the case for respondents. Given the
considerable amount of time spent, the diligent effort exerted by
petitioner, and the quality of work shown by him in ensuring the successful
defense of his clients, petitioner clearly deserves to be awarded
reasonable attorney’s fees for services rendered. Justice and equity dictate
that petitioner be paid his professional fee based on quantum meruit.
The fact that the practice of law is not a business and the attorney plays a
vital role in the administration of justice underscores the need to secure
him his honorarium lawfully earned as a means to preserve the decorum
and respectability of the legal profession. A layer is as much entitled to
judicial protection against injustice, imposition or fraud on the part of his
client as the client against abuse on the part of his counsel. The duty of the
court is not alone to see that a lawyer acts in a proper and lawful manner;
it is also its duty to see that a lawyer is paid his just fees. With his capital
consisting of his brains and with his skill acquired at tremendous cost not
only in money but in expenditure of time and energy, he is entitled to the
protection of any judicial tribunal against any attempt on the part of his
client to escape payment of his just compensation. It would be ironic if
after putting forth the best in him to secure justice for his client he himself
would not get his due.22
The Court, however, is resistant in granting petitioner's prayer for an
award of 25% attorney's fees based on the value of the property subject of
litigation because petitioner failed to clearly substantiate the details of his
oral agreement with Spouses de Guzman. A fair and reasonable amount of
attorney's fees should be 15% of the market value of the property.
WHEREFORE, the petition is GRANTED. Accordingly, the Court grants the
Motion to Determine Attorney's Fees filed by petitioner Atty. Francisco L.
Rosario, Jr. Based on quantum meruit, the amount of attorney's fees is at
the rate of 15% of the market value of the parcel of land, covered by
Transfer Certificate of Title No. 1292, at the time of payment.
SECOND DIVISION
A.C. No. 9860, September 11, 2013
JOSEPHINE L. OROLA, MYRNA L. OROLA, MANUEL L. OROLA, MARY
ANGELYN OROLA-BELARGA, MARJORIE MELBA OROLA-CALIP, AND
KAREN OROLA, Complainants, v. ATTY. JOSEPH ADOR
RAMOS, Respondent.
RESOLUTION
PERLAS-BERNABE, J.:
For the Court’s resolution is a disbarment complaint1 filed against
respondent Atty. Joseph Ador Ramos (respondent) for his violation of Rule
15.03, Canon 15 (Rule 15.03) of the Code of Professional Responsibility
(Code) and Section 20(e), Rule 138 of the Rules of Court (Rules).
The Facts
Complainants Josephine, Myrna, Manuel, (all surnamed Orola), Mary
Angelyn Orola-Belarga (Mary Angelyn), and Marjorie Melba Orola-Calip
(Marjorie) are the children of the late Trinidad Laserna-Orola (Trinidad),
married to Emilio Q. Orola (Emilio).2cralaw virtualaw library
Meanwhile, complainant Karen Orola (Karen) is the daughter of Maricar
Alba-Orola (Maricar) and Antonio L. Orola (Antonio), the deceased brother
of the above-named complainants and the son of Emilio.3cralaw virtualaw
library
In the settlement of Trinidad’s estate, pending before the Regional Trial
Court of Roxas City, Branch 18 (RTC) and docketed as Special Proceeding
No. V-3639, the parties were represented by the following: (a) Atty. Roy M.
Villa (Atty. Villa) as counsel for and in behalf of Josephine, Myrna, Manuel,
Mary Angelyn, and Marjorie (Heirs of Trinidad); (b) Atty. Ely F. Azarraga, Jr.
(Atty. Azarraga) as counsel for and in behalf of Maricar, Karen, and the
other heirs4 of the late Antonio (Heirs of Antonio), with respondent as
collaborating counsel; and (c) Atty. Aquiliana Brotarlo as counsel for and in
behalf of Emilio, the initially appointed administrator of Trinidad’s estate.
In the course of the proceedings, the Heirs of Trinidad and the Heirs of
Antonio moved for the removal of Emilio as administrator and, in his stead,
sought the appointment of the latter’s son, Manuel Orola, which the RTC
granted in an Order5 dated September 20, 2007 (RTC Order).
Subsequently, or on October 10, 2007, respondent filed an Entry of
Appearance as collaborating counsel for Emilio in the same case and
moved for the reconsideration of the RTC Order.6cralaw virtualaw library
Due to the respondent’s new engagement, complainants filed the instant
disbarment complaint before the Integrated Bar of the Philippines (IBP),
claiming that he violated: (a) Rule 15.03 of the Code, as he undertook to
represent conflicting interests in the subject case;7 and (b) Section 20(e),
Rule 138 of the Rules, as he breached the trust and confidence reposed
upon him by his clients, the Heirs of Antonio.8Complainants further
claimed that while Maricar, the surviving spouse of Antonio and the
mother of Karen, consented to the withdrawal of respondent’s
appearance, the same was obtained only on October 18, 2007, or after he
had already entered his appearance for Emilio on October 10, 2007. 9 In this
accord, respondent failed to disclose such fact to all the affected heirs and,
as such, was not able to obtain their written consent as required under the
Rules.10cralaw virtualaw library
For his part, respondent refuted the abovementioned charges, contending
that he never appeared as counsel for the Heirs of Trinidad or for the Heirs
of Antonio. He pointed out that the records of the case readily show that
the Heirs of Trinidad were represented by Atty. Villa, while the Heirs of
Antonio were exclusively represented by Atty. Azarraga.11 He averred that
he only accommodated Maricar's request to temporarily appear on her
behalf as their counsel of record could not attend the scheduled June 16
and July 14, 2006 hearings and that his appearances thereat were free of
charge.12 In fact, he obtained Maricar’s permission for him to withdraw
from the case as no further communications transpired after these two
hearings. Likewise, he consulted Maricar before he undertook to represent
Emilio in the same case.13 He added that he had no knowledge of the fact
that the late Antonio had other heirs and, in this vein, asserted that no
information was disclosed to him by Maricar or their counsel of record at
any instance.14 Finally, he clarified that his representation for Emilio in the
subject case was more of a mediator, rather than a litigator,15 and that
since no settlement was forged between the parties, he formally withdrew
his appearance on December 6, 2007.16 In support of his assertions,
respondent submitted the affidavits of Maricar17 and Atty.
Azarraga18 relative to his limited appearance and his consultation with
Maricar prior to his engagement as counsel for Emilio.
The Recommendation and Action of the IBP
19
In the Report and Recommendation dated September 15, 2008
submitted by IBP Investigating Commissioner Jose I. De La Rama, Jr.
(Investigating Commissioner), respondent was found guilty of representing
conflicting interests only with respect to Karen as the records of the case
show that he never acted as counsel for the other complainants. The
Investigating Commissioner observed that while respondent's withdrawal
of appearance was with the express conformity of Maricar, respondent
nonetheless failed to obtain the consent of Karen, who was already of age
and one of the Heirs of Antonio, as mandated under Rule 15.03 of the
Code.20cralaw virtualaw library
On the other hand, the Investigating Commissioner held that there was no
violation of Section 20, Rule 138 of the Rules as complainants themselves
admitted that respondent “did not acquire confidential information from
his former client nor did he use against the latter any knowledge obtained
in the course of his previous employment.”21 Considering that it was
respondent's first offense, the Investigating Commissioner found the
imposition of disbarment too harsh a penalty and, instead, recommended
that he be severely reprimanded for his act with warning that a repetition
of the same or similar acts would be dealt with more severely.22cralaw
virtualaw library
The IBP Board of Governors adopted and approved with modification the
aforementioned report in its Resolution No. XVIII-2008-64123 dated
December 11, 2008 (Resolution No. XVIII-2008-641), finding the same to be
fully supported by the evidence on record and the applicable laws and
rules but imposed against respondent the penalty of six (6) months
suspension from the practice of law.
Respondent's motion for reconsideration24 was denied in IBP Resolution
No. XX-2013-1725 dated January 3, 2013.
The Issue Before the Court
The sole issue in this case is whether or not respondent is guilty of
representing conflicting interests in violation of Rule 15.03 of the Code.
The Court’s Ruling
The Court concurs with the IBP’s finding that respondent violated Rule
15.03 of the Code, but reduced the recommended period of suspension to
three (3) months.

Rule 15.03 of the Code reads:chanrobles virtua1aw 1ibrary
CANON 15 – A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND LOYALTY
IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENTS.
Rule 15.03 - A lawyer shall not represent conflicting interests except by
written consent of all concerned given after a full disclosure of the facts.
(Emphasis supplied)
Under the afore-cited rule, it is explicit that a lawyer is prohibited from
representing new clients whose interests oppose those of a former client
in any manner, whether or not they are parties in the same action or on
totally unrelated cases. The prohibition is founded on the principles of
public policy and good taste.26 It behooves lawyers not only to keep
inviolate the client's confidence, but also to avoid the appearance of
treachery and double-dealing for only then can litigants be encouraged to
entrust their secrets to their lawyers, which is of paramount importance in
the administration of justice.27 In Hornilla v. Salunat28 (Hornilla), the Court
explained the concept of conflict of interest, to wit:chanrobles virtua1aw
1ibrary
There is conflict of interest when a lawyer represents inconsistent
interests of two or more opposing parties. The test is “whether or not in
behalf of one client, it is the lawyer's duty to fight for an issue or claim, but
it is his duty to oppose it for the other client. In brief, if he argues for one
client, this argument will be opposed by him when he argues for the other
client.” This rule covers not only cases in which confidential
communications have been confided, but also those in which no
confidence has been bestowed or will be used. Also, there is conflict of
interests if the acceptance of the new retainer will require the attorney to
perform an act which will injuriously affect his first client in any matter in
which he represents him and also whether he will be called upon in his
new relation to use against his first client any knowledge acquired through
their connection. Another test of the inconsistency of interests is whether
the acceptance of a new relation will prevent an attorney from the full
discharge of his duty of undivided fidelity and loyalty to his client or invite
suspicion of unfaithfulness or double dealing in the performance
thereof.29 (Emphasis supplied; citations omitted)
It must, however, be noted that a lawyer’s immutable duty to a former
client does not cover transactions that occurred beyond the lawyer’s
employment with the client. The intent of the law is to impose upon the
lawyer the duty to protect the client’s interests only on matters that he
previously handled for the former client and not for matters that arose
after the lawyer-client relationship has terminated.30cralaw virtualaw
library
Applying the above-stated principles, the Court agrees with the IBP’s
finding that respondent represented conflicting interests and, perforce,
must be held administratively liable therefor.
Records reveal that respondent was the collaborating counsel not only for
Maricar as claimed by him, but for all the Heirs of Antonio in Special
Proceeding No. V-3639. In the course thereof, the Heirs of Trinidad and the
Heirs of Antonio succeeded in removing Emilio as administrator for having
committed acts prejudicial to their interests. Hence, when respondent
proceeded to represent Emilio for the purpose of seeking his
reinstatement as administrator in the same case, he clearly worked against
the very interest of the Heirs of Antonio – particularly, Karen – in violation
of the above-stated rule.
Respondent's justification that no confidential information was relayed to
him cannot fully exculpate him for the charges against him since the rule
on conflict of interests, as enunciated in Hornilla, provides an absolute
prohibition from representation with respect to opposing parties in the
same case. In other words, a lawyer cannot change his representation from
one party to the latter’s opponent in the same case. That respondent’s
previous appearances for and in behalf of the Heirs of Antonio was only a
friendly accommodation cannot equally be given any credence since the
aforesaid rule holds even if the inconsistency is remote or merely probable
or even if the lawyer has acted in good faith and with no intention to
represent conflicting interests.31cralaw virtualaw library
Neither can respondent's asseveration that his engagement by Emilio was
more of a mediator than a litigator and for the purpose of forging a
settlement among the family members render the rule inoperative. In fact,
even on that assertion, his conduct is likewise improper since Rule
15.04,32 Canon 15 of the Code similarly requires the lawyer to obtain the
written consent of all concerned before he may act as mediator, conciliator
or arbitrator in settling disputes. Irrefragably, respondent failed in this
respect as the records show that respondent was remiss in his duty to
make a full disclosure of his impending engagement as Emilio’s counsel to
all the Heirs of Antonio – particularly, Karen – and equally secure their
express written consent before consummating the same. Besides, it must
be pointed out that a lawyer who acts as such in settling a dispute cannot
represent any of the parties to it.33 Accordingly, for respondent’s violation
of the aforestated rules, disciplinary sanction is warranted.
In this case, the penalty recommended by the Investigating Commissioner
was increased from severe reprimand to a suspension of six (6) months by
the IBP Board of Governors in its Resolution No. XVIII-2008-641. However,
the Court observes that the said resolution is bereft of any explanation
showing the bases of the IBP Board of Governors’ modification; as such, it
contravened Section 12(a), Rule 139-B of the Rules which specifically
mandates that “[t]he decision of the Board upon such review shall be in
writing and shall clearly and distinctly state the facts and the reasons on
which it is based.”34 Verily, the Court looks with disfavor the change in the
recommended penalty without any ample justification therefor. To this
end, the Court is wont to remind the IBP Board of Governors of the
importance of the requirement to announce in plain terms its legal
reasoning, since the requirement that its decision in disciplinary
proceedings must state the facts and the reasons on which the same is
based is akin to what is required of courts in promulgating their decisions.
The reasons for handing down a penalty occupy no lesser station than any
other portion of the ratio.35cralaw virtualaw library
In the foregoing light, the Court finds the penalty of suspension from the
practice of law for a period of three (3) months to be more appropriate
taking into consideration the following factors: first, respondent is a first
time offender; second, it is undisputed that respondent merely
accommodated Maricar’s request out of gratis to temporarily represent
her only during the June 16 and July 14, 2006 hearings due to her lawyer’s
unavailability; third, it is likewise undisputed that respondent had no
knowledge that the late Antonio had any other heirs aside from Maricar
whose consent he actually acquired (albeit shortly after his first
appearance as counsel for and in behalf of Emilio), hence, it can be said
that he acted in good faith; and fourth, complainants admit that
respondent did not acquire confidential information from the Heirs of
Antonio nor did he use against them any knowledge obtained in the course
of his previous employment, hence, the said heirs were not in any manner
prejudiced by his subsequent engagement with Emilio. Notably, in Ilusorio-
Bildner v. Lokin, Jr.,36 the Court similarly imposed the penalty of suspension
from the practice of law for a period of three months to the counsel
therein who represented parties whose interests are hostile to his other
clients in another case.
WHEREFORE, respondent Atty. Joseph Ador Ramos is hereby
held GUILTY of representing conflicting interests in violation of Rule 15.03,
Canon 15 of the Code of Professional Responsibility. Accordingly, he is
hereby SUSPENDED from the practice of law for a period of three (3)
months, with WARNING that a repetition of the same or similar acts in the
future will be dealt with more severely.chanroblesvirtualawlibrary
SO ORDERED.
FIRST DIVISION
A.C. No. 9115 September 17, 2014
REBECCA MARIE UY YUPANGCO-NAKPIL, Complainant,
vs.
ATTY. ROBERTO L. UY, Respondent.
RESOLUTION
PERLAS-BERNABE, J.:
This is an administrative case against respondent Atty. Roberto L. Uy
(respondent) for unprofessional and unethical conduct, stemming from a
complaint filed by private complainant Rebecca Marie Uy Yupangco-Nakpil
(Rebecca), represented by her attorney-in-fact, Bella Asuncion Pollo
(Bella).
The Facts
Rebecca is the natural niece and adopted daughter of the late Dra. Pacita
Uy y Lim (Pacita).1 She was adjudged as the sole and exclusive legal heir of
Paci ta by virtue of an Order2 dated August 10, 1999 issued by the Regional
Trial Court of Manila, Branch 34 in SPEC. PROC. No. 95-7520 l (SP 95-
75201). At the time of her death, Pacita was a stockholder in several
corporations primarily engaged in acquiring, developing, and leasing real
properties, namely, Uy Realty Company, Inc. (URCI), Jespajo Realty
Corporation, Roberto L. Uy Realty and Development Corporation, Jesus Uy
Realty Corporation, Distelleria La Jarolina, Inc., and Pacita Lim Uy Realty,
Inc.3
In her Complaint4 filed on May 9, 2005,5 Rebecca, through her attorney-in
fact, Bella, averred that respondent, her alleged illegitimate
halfcousin,6 continuously failed and refused to comply with the court order
in SP 95-75201 declaring her as the successor-in-interest to all of Pacita’s
properties, as well as her requests for the accounting and delivery of the
dividends and other proceeds or benefits coming from Pacita’s
stockholdings in the aforementioned corporations.7 She added that
respondent mortgaged a commercial property covered by Transfer
Certificate of Title No. T-133606 (subject property) in favor of Philippine
Savings Bank in the total amount of 54,000,000.00,8 despite an existing
Trust Agreement9 executed on October 15, 1993 (subject Trust Agreement)
wherein respondent, in his capacity as President of URCI, already
recognized her to be the true and beneficial owner of the
same.10Accordingly, she demanded that respondent return the said
property by executing the corresponding deed of conveyance in her favor
together with an inventory and accounting of all the proceeds therefrom,
but to no avail.11 In this relation, Rebecca claimed that it was only on
September 2, 2005 or after she had already instituted various legal actions
and remedies that respondent and URCIagreed to transfer the subject
property to her pursuant to a compromise agreement. 12
In his Answer With Compulsory Counterclaim,13 respondent denied
Rebecca’s allegations and raised the affirmative defenses of forum
shopping and prescription. He pointed out that Rebecca had filed several
cases raising the single issue on the correct interpretation of the subject
trust agreement. He also contended that the parties’ transactions in this
case were made way back in 1993 and 1995 without a complaint having
been filed until Bella came into the picture and instituted various suits
covering the same issue.14 As such, he sought the dismissal of the
complaint, and further prayed for the payment of moral damages and
attorney’s fees by way of counterclaim.15
On September 8, 2005, Rebecca filed a Motion to Withdraw Complaint 16 in
CBD Case No. 05-1484 for the reason that "the facts surrounding the same
arose out of a misunderstanding and misapprehension of the real facts
surrounding their dispute."17
However, on October 6, 2005, Bella filed a Manifestation with Leave of
Court to File Motion for Intervention,18praying that the investigation of the
charges against respondent continue in order to weed out erring members
of the legal profession.19
The Report and Recommendation of the IBP
On October 8, 2007, the Integrated Bar of the Philippines (IBP)
Investigating Commissioner issuedhis Report and
Recommendation,20 finding respondent guilty of serious misconduct in
violation of Rule 1.01, Canon 1 of the Code of Professional Responsibility
(Code), and, thus, recommended the penalty of suspension for a period of
six (6) months.21
On matters of procedure, the Investigating Commissioner opined that
Rebecca’s motion to withdraw did notserve as a bar for the further
consideration and investigation ofthe administrative case against
respondent. As basis, he cites Section 5, Rule 139-B of the Rules of Court
which provides that "[n]o investigation shall be interrupted or terminated
by reason of the desistance, settlement, compromise, restitution,
withdrawal of the charges, or failure of the complainant to prosecute the
same." Separately, the Investigating Commissioner denied the claim of
forum shopping, noting that disciplinary cases are sui generis and may,
therefore, proceed independently.22
On the merits of the charge, the Investigating Commissioner observed that
respondent lacked the good moral character required from members of
the Bar when the latter failed to comply with the demands of Rebecca
under the subject trust agreement, not to mention his unworthy and
deceitful acts of mortgaging the subject property without the former’s
consent. In fine, respondent was found guilty of serious misconduct in
violation of Rule 1.01, Canon 1 of the Code, for which the above-stated
penalty was recommended.23
In a Resolution24 dated November 10, 2007, the IBP Board of Governors
adopted and approved the Investigating Commissioner’s Report and
Recommendation.
The Issue Before the Court
The basic issue in this case is whether or not respondent should be held
administratively liable.
The Court’s Ruling
Rule 1.01, Canon 1 of the Code, as itis applied to the members of the legal
profession, engraves an overriding prohibition against any form of
misconduct, viz.:
CANON 1 - A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS
OF THE LAND AND PROMOTE RESPECT FOR LAW AND LEGAL PROCESSES.
Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct.
The gravity of the misconduct – determinative as it is of the errant lawyer’s
penalty – depends on the factual circumstances of each case.
Here, the Court observes that the squabble which gave rise to the present
administrative case largely constitutes an internal affair, which had already
been laid to rest by the parties. This is clearly exhibited by Rebecca’s
motion to withdraw filed in this case as well as the compromise agreement
forged in Civil Case No. 04-108887 which involves the subject property’s
alleged disposition in violation of the subject trust agreement. As the Court
sees it, his failure to complywith the demands of Rebecca – which she
takes as an invocation of her rights under the subject trust agreement – as
well as respondent’s acts of mortgaging the subject property without the
former’s consent, sprung from his own assertion of the rights he believed
he had over the subject property. The propriety of said courses of action
eludes the Court’s determination,for that matter had never been resolved
on its merits in view of the aforementioned settlement. Rebecca even
states in her motion to withdraw that the allegations she had previously
made arose out of a "misapprehension of the real facts surrounding their
dispute" and even adds that respondent "had fully explained to [her] the
real nature and extent of her inheritance x x x toher entire satisfaction,"
leading her to state that she is "now fully convinced that [her] complaint
has no basis in fact and in law."25 Accordingly, with the admitted
misstatement of facts, the observations of the Investigating Commissioner,
as adopted by the IBP, hardly hold water so as to support the finding of
"serious misconduct" which would warrant its recommended
penalty.1âwphi1
Be that as it may, the Court, nonetheless, finds that respondent committed
some form of misconduct by, as admitted, mortgaging the subject
property, notwithstanding the apparent dispute over the same. Regardless
of the merits of his own claim, respondent should have exhibited prudent
restraint becoming of a legal exemplar. He should not have exposed
himself even to the slightest risk of committing a property violation nor
any action which would endanger the Bar's reputation. Verily, members of
the Bar 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.26 By no insignificant measure, respondent
blemished not only his integrity as a member of the Bar, but also that of
the legal profession. In other words, his conduct fell short of the exacting
standards expected of him as a guardian of law and justice. Although to a
lesser extent as compared to what has been ascribed by the IBP, the Court
still holds respondent guilty of violating Rule 1. 01, Canon 1 of the Code.
Considering that this is his first offense as well as the peculiar
circumstances of this case, the Court believes that a fine of ₱15,000.00
would suffice.
WHEREFORE, respondent Atty. Roberto L. Uy is found GUILTY of violating
Rule 1.01, Canon 1 of the Code of Professional Responsibility. Accordingly,
he is ordered to pay a FINE of ₱15,000.00 within ten (10) days from receipt
of this Resolution. Further, he is STERNLY WARNED that a repetition of the
same or similar acts will be dealt with more severely.
Let a copy of this Resolution be attached to respondent's record in this
Court as attorney. Further, let copies of this Resolution be furnished the
Integrated Bar of the Philippines and the Office of the Court Administrator,
which is directed to circulate them to all the courts in the country for their
information and guidance.
SO ORDERED.
EN BANC
A.C. No. 7360 July 24,2012
ATTY. POLICARIO I. CATALAN, JR., Complainant,
vs.
ATTY. JOSELITO M. SILVOSA, Respondent.
DECISION
PER CURIAM:
This is a complaint filed by Atty. Policarpio I. Catalan, Jr. (Atty. Catalan)
against Atty. Joselito M. Silvosa (Atty. Silvosa). Atty. Catalan has three
causes of action against Atty. Silvosa; (1) Atty. Silvosa appeared as counsel
for the accused in the same case for which he previously appeared as
prosecutor; (2) Atty. Silvosa bribed his then colleague Prosecutor Phoebe
Toribio (Pros.Toribio) for P30,000; and (3) the Sandiganbayan convicted
Atty. Silvosa in Criminal Case No. 27776 for direct bribery. Integrated Bar
of the Philippines’ (IBP) Commissioner for Bar Discipline Dennis A.B. Funa
(Comm. Funa) held Atty. Silvosa liable only for the first cause of action and
recommended the penalty of reprimand. The Board of Governors of the
IBP twice modified Comm. Funa’s recommendation: first, to a suspension
of six months, then to a suspension of two years.
Atty. Silvosa was an Assistant Provincial Prosecutor of Bukidnon and a
Prosecutor in Regional Trial Court (RTC), Branch 10, Malaybalay City,
Bukidnon. Atty. Silvosa appeared as public prosecutor in Criminal Case No.
10256-00, "People of the Philippines v. SPO2 Elmor Esperon y Murillo, et
al." (Esperon case), for the complex crime of double frustrated murder, in
which case Atty. Catalan was one of the private complainants. Atty.
Catalan took issue with Atty. Silvosa’s manner of prosecuting the case, and
requested the Provincial Prosecutor to relieve Atty. Silvosa.
In his first cause of action, Atty. Catalan accused Atty. Silvosa of appearing
as private counsel in a case where he previously appeared as public
prosecutor, hence violating Rule 6.03 of the Code of Professional
Responsibility.1 Atty. Catalan also alleged that, apart from the fact that
Atty. Silvosa and the accused are relatives and have the same middle
name, Atty. Silvosa displayed manifest bias in the accused’s favor. Atty.
Silvosa caused numerous delays in the trial of the Esperon case by arguing
against the position of the private prosecutor. In 2000, Provincial
Prosecutor Guillermo Ching granted Atty. Catalan’s request to relieve Atty.
Silvosa from handling the Esperon case. The RTC rendered judgment
convicting the accused on 16 November 2005. On 23 November 2005,
Atty. Silvosa, as private lawyer and as counsel for the accused, filed a
motion to reinstate bail pending finality of judgment of the Esperon case.
In his second cause of action, Atty. Catalan presented the affidavit of Pros.
Toribio. In a case for frustrated murder where Atty. Catalan’s brother was
a respondent, Pros. Toribio reviewed the findings of the investigating judge
and downgraded the offense from frustrated murder to less serious
physical injuries. During the hearing before Comm. Funa, Pros. Toribio
testified that, while still a public prosecutor at the time, Atty. Silvosa
offered her P30,000 to reconsider her findings and uphold the charge of
frustrated murder.
Finally, in the third cause of action, Atty. Catalan presented the
Sandiganbayan’s decision in Criminal Case No. 27776, convicting Atty.
Silvosa of direct bribery on 18 May 2006. Nilo Lanticse (Lanticse) filed a
complaint against Atty. Silvosa before the National Bureau of Investigation
(NBI). Despite the execution of an affidavit of desistance by the
complainant in a homicide case in favor of Lanticse’s father-in-law, Arsenio
Cadinas (Cadinas), Cadinas still remained in detention for more than two
years. Atty. Silvosa demanded P15,000 from Lanticse for the dismissal of
the case and for the release of Cadinas. The NBI set up an entrapment
operation for Atty. Silvosa. GMA 7’s television
program Imbestigador videotaped and aired the actual entrapment
operation. The footage was offered and admitted as evidence, and viewed
by the Sandiganbayan. Despite Atty. Silvosa’s defense of instigation, the
Sandiganbayan convicted Atty. Silvosa. The dispositive portion of Criminal
Case No. 27776 reads:
WHEREFORE, this court finds JOSELITO M. SILVOSA GUILTY, beyond
reasonable doubt, of the crime of direct bribery and is hereby sentenced to
suffer the penalty of:
(A) Imprisonment of, after applying the Indeterminate Sentence
Law, one year, one month and eleven days of prision correccional,
as minimum, up to three years, six months and twenty days
of prision correccional, as maximum;
(B) Fine of TEN THOUSAND PESOS (Php 10,000.00), with
subsidiary imprisonment in case of insolvency; and
(C) All other accessory penalties provided for under the law.
SO ORDERED.2
In his defense, on the first cause of action, Atty. Silvosa states that he
resigned as prosecutor from the Esperon case on 18 October 2002. The
trial court released its decision in the Esperon case on 16 November 2005
and cancelled the accused’s bail. Atty. Silvosa claims that his appearance
was only for the purpose of the reinstatement of bail. Atty. Silvosa also
denies any relationship between himself and the accused.
On the second cause of action, Atty. Silvosa dismisses Pros. Toribio’s
allegations as "self-serving" and "purposely dug by [Atty. Catalan] and his
puppeteer to pursue persecution."
On the third cause of action, while Atty. Silvosa admits his conviction by
the Sandiganbayan and is under probation, he asserts that "conviction
under the 2nd paragraph of Article 210 of the Revised Penal Code, do [sic]
not involve moral turpitude since the act involved ‘do [sic] not amount to a
crime.’" He further claims that "it is not the lawyer in respondent that was
convicted, but his capacity as a public officer, the charge against
respondent for which he was convicted falling under the category of
crimes against public officers x x x."
In a Report and Recommendation dated 15 September 2008, Comm. Funa
found that:
As for the first charge, the wordings and prohibition in Rule 6.03 of
the Code of Professional Responsibility [are] quite clear. [Atty. Silvosa] did
intervene in Criminal Case No. 10246-00. [Atty. Silvosa’s] attempt to
minimize his role in said case would be unavailing. The fact is that he is
presumed to have acquainted himself with the facts of said case and has
made himself familiar with the parties of the case. Such would constitute
sufficient intervention in the case. The fact that, subsequently, [Atty.
Silvosa] entered his appearance in said case only to file a Motion to
Post Bail Bond Pending Appeal would still constitute a violation of Rule
6.03 as such act is sufficient to establish a lawyer-client relation.
As for the second charge, there is certain difficulty to dissect a claim of
bribery that occurred more than seven (7) years ago. In this instance, the
conflicting allegations are merely based on the word of one person against
the word of another. With [Atty. Silvosa’s] vehement denial, the accusation
of witness [Pros.] Toribio stands alone unsubstantiated. Moreover, we take
note that the alleged incident occurred more than seven (7) years ago or in
1999, [l]ong before this disbarment case was filed on November 2006.
Such a long period of time would undoubtedly cast doubt on the veracity
of the allegation. Even the existence of the bribe money could not be
ascertained and verified with certainty anymore.
As to the third charge, [Atty. Silvosa] correctly points out that herein
complainant has no personal knowledge about the charge of extortion for
which [Atty. Silvosa] was convicted by the Sandiganbayan. [Atty. Catalan]
was not a party in said case nor was he ever involved in said case. The
findings of the Sandiganbayan are not binding upon this Commission. The
findings in a criminal proceeding are not binding in a disbarment
proceeding. No evidence has been presented relating to the alleged
extortion case.
PREMISES CONSIDERED, it is submitted that [Atty. Silvosa] is GUILTY only of
the First Charge in violating Rule 6.03 of the Code of Professional
Responsibility and should be given the penalty of REPRIMAND.
Respectfully submitted.3
In a Resolution dated 9 October 2008, the IBP Board of Governors adopted
and approved with modification the Report and Recommendation of
Comm. Funa and suspended Atty. Silvosa from the practice of law for six
months. In another Resolution dated 28 October 2011, the IBP Board of
Governors increased the penalty of Atty. Silvosa’s suspension from the
practice of law to two years. The Office of the Bar Confidant received the
notice of the Resolution and the records of the case on 1 March 2012.
We sustain the findings of the IBP only in the first cause of action and
modify its recommendations in the second and third causes of action.
Atty. Catalan relies on Rule 6.03 which states that "A lawyer shall not, after
leaving government service, accept engagement or employment in
connection with any matter in which he had intervened while in said
service." Atty. Silvosa, on the hand, relies on Rule 2.01 which provides that
"A lawyer shall not reject, except for valid reasons the cause of the
defenseless or the oppressed" and on Canon 14 which provides that "A
lawyer shall not refuse his services to the needy."
We agree with Comm. Funa’s finding that Atty. Silvosa violated Rule 6.03.
When he entered his appearance on the Motion to Post Bail Bond Pending
Appeal, Atty. Silvosa conveniently forgot Rule 15.03 which provides that "A
lawyer shall not represent conflicting interests except by written consent
of all concerned given after a full disclosure of facts."
Atty. Silvosa’s attempts to minimize his involvement in the same case on
two occasions can only be described as desperate. He claims his
participation as public prosecutor was only to appear in the arraignment
and in the pre-trial conference. He likewise claims his subsequent
participation as collaborating counsel was limited only to the
reinstatement of the original bail. Atty. Silvosa will do well to take heed of
our ruling in Hilado v. David:4
An attorney is employed — that is, he is engaged in his professional
capacity as a lawyer or counselor — when he is listening to his client’s
preliminary statement of his case, or when he is giving advice thereon, just
as truly as when he is drawing his client’s pleadings, or advocating his
client’s pleadings, or advocating his client’s cause in open court.
xxxx
Hence the necessity of setting down the existence of the bare relationship
of attorney and client as the yardstick for testing incompatibility of
interests. This stern rule is designed not alone to prevent the dishonest
practitioner from fraudulent conduct, but as well to protect the honest
lawyer from unfounded suspicion of unprofessional practice. It is founded
on principles of public policy, on good taste. As has been said in another
case, the question is not necessarily one of the rights of the parties, but as
to whether the attorney has adhered to proper professional standard.
With these thoughts in mind, it behooves attorneys, like Caesar’s wife, not
only to keep inviolate the client’s confidence, but also to avoid the
appearance of treachery and double-dealing. Only thus can litigants be
encouraged to entrust their secrets to their attorneys which is of
paramount importance in the administration of justice.
Indeed, the prohibition against representation of conflicting interests
applies although the attorney’s intentions were honest and he acted in
good faith.5
Atty. Silvosa denies Pros. Toribio’s accusation of bribery and casts doubt on
its veracity by emphasizing the delay in presenting a complaint before the
IBP. Comm. Funa, by stating that there is difficulty in ascertaining the
veracity of the facts with certainty, in effect agreed with Atty. Silvosa.
Contrary to Comm. Funa’s ruling, however, the records show that Atty.
Silvosa made an attempt to bribe Pros. Toribio and failed. Pros. Toribio
executed her affidavit on 14 June 1999, a day after the failed bribery
attempt, and had it notarized by Atty. Nemesio Beltran, then President of
the IBP-Bukidnon Chapter. There was no reason for Pros. Toribio to make
false testimonies against Atty. Silvosa. Atty. Silvosa, on the other hand,
merely denied the accusation and dismissed it as persecution. 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.6 Atty.
Silvosa failed in this respect.
Unfortunately for Atty. Silvosa, mere delay in the filing of an administrative
complaint against a member of the bar does not automatically exonerate a
respondent. Administrative offenses do not prescribe. No matter how
much time has elapsed from the time of the commission of the act
complained of and the time of the institution of the complaint, erring
members of the bench and bar cannot escape the disciplining arm of the
Court.7
We disagree with Comm. Funa’s ruling that the findings in a criminal
proceeding are not binding in a disbarment proceeding.
First, disbarment proceedings may be initiated by any interested person.
There can be no doubt of the right of a citizen to bring to the attention of
the proper authority acts and doings of public officers which a citizen feels
are incompatible with the duties of the office and from which conduct the
public might or does suffer undesirable consequences.8 Section 1, Rule
139-B reads:
Section 1. How Instituted. – Proceedings for the disbarment, suspension, or
discipline of attorneys may be taken by the Supreme Court motu proprio,
or by the Integrated Bar of the Philippines (IBP) upon the verified
complaint of any person. The complaint shall state clearly and concisely
the facts complained of and shall be supported by affidavits of persons
having personal knowledge of the facts therein alleged and/or by such
documents as may substantiate said facts.
The IBP Board of Governors may, motu proprio or upon referral by the
Supreme Court or by a Chapter Board of Officers, or at the instance of any
person, initiate and prosecute proper charges against erring attorneys
including those in government service.
xxxx
It is of no moment that Atty. Catalan is not the complainant in Criminal
Case No. 27776, and that Lanticse, the complainant therein, was not
presented as a witness in the present case. There is no doubt that the
Sandiganbayan’s judgment in Criminal Case No. 27776 is a matter of public
record and is already final. Atty. Catalan supported his allegation by
submitting documentary evidence of the Sandiganbayan’s decision in
Criminal Case No. 27776. Atty. Silvosa himself admitted, against his
interest, that he is under probation.
Second, conviction of a crime involving moral turpitude is a ground for
disbarment. Moral turpitude is defined as an act of baseness, vileness, or
depravity in the private duties which a man owes to his fellow men, or to
society in general, contrary to justice, honesty, modesty, or good
morals.9 Section 27, Rule 138 provides:
Section 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 willful disobedience of any lawful
order of a superior court, or for corruptly or willfully appearing as an
attorney for a party to a case without authority 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. (Emphasis supplied)
In a disbarment case, this Court will no longer review a final judgment of
conviction.10
Third, the crime of direct bribery is a crime involving moral turpitude. In
Magno v. COMELEC,11
we ruled:
By applying for probation, petitioner in effect admitted all the elements of
the crime of direct bribery:
1. the offender is a public officer;
2. the offender accepts an offer or promise or receives a gift or
present by himself or through another;
3. such offer or promise be accepted or gift or present be received
by the public officer with a view to committing some crime, or in
consideration of the execution of an act which does not constitute
a crime but the act must be unjust, or to refrain from doing
something which it is his official duty to do; and
4. the act which the offender agrees to perform or which he
executes is connected with the performance of his official duties.
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.
(Italicization in the original)
Atty. Silvosa’s representation of conflicting interests and his failed attempt
at bribing Pros. Toribio merit at least the penalty of
suspension.1âwphi1 Atty. Silvosa’s final conviction of the crime of direct
bribery clearly falls under one of the grounds for disbarment under Section
27 of Rule 138. Disbarment follows as a consequence of Atty. Silvosa’s
conviction of the crime. We are constrained to impose a penalty more
severe than suspension because we find that Atty. Silvosa is predisposed to
flout the exacting standards of morality and decency required of a member
of the Bar. His excuse that his conviction was not in his capacity as a
lawyer, but as a public officer, is unacceptable and betrays the
unmistakable lack of integrity in his character. The practice of law is a
privilege, and Atty. Silvosa has proved himself unfit to exercise this
privilege.
WHEREFORE, respondent Atty. Joselito M. Silvosa is
hereby DISBARRED and his name ORDERED STRICKEN from the Roll of
Attorneys. Let a copy of this Decision be furnished to the Office of the Bar
Confidant, to be appended to respondent’s personal record as attorney.
Likewise, copies shall be furnished to the Integrated Bar of the Philippines
and to the Office of the Court Administration for circulation to all courts in
the country.
THIRD DIVISION
A.C. No. 6116 August 1, 2012
ENGR. GILBERT TUMBOKON, Complainant,
vs.
ATTY. MARIANO R. PEFIANCO, Respondent.
RESOLUTION
PERLAS-BERNABE, J.:
Before the Court is an administrative complaint for disbarment filed by
complainant Engr. Gilbert Tumbokon against respondent Atty. Mariano R.
Pefianco for grave dishonesty, gross misconduct constituting deceit and
grossly immoral conduct.
In his Complaint,1 complainant narrated that respondent undertook to give
him 20% commission, later reduced to 10%, of the attorney's fees the
latter would receive in representing Spouses Amable and Rosalinda Yap
(Sps. Yap), whom he referred, in an action for partition of the estate of the
late Benjamin Yap (Civil Case No. 4986 before the Regional Trial Court of
Aklan). Their agreement was reflected in a letter 2 dated August 11, 1995.
However, respondent failed to pay him the agreed commission
notwithstanding receipt of attorney's fees amounting to 17% of the total
estate or about ₱ 40 million. Instead, he was informed through a
letter3 dated July 16, 1997 that Sps. Yap assumed to pay the same after
respondent had agreed to reduce his attorney's fees from 25% to 17%. He
then demanded the payment of his commission 4 which respondent
ignored.
Complainant further alleged that respondent has not lived up to the high
moral standards required of his profession for having abandoned his legal
wife, Milagros Hilado, with whom he has two children, and cohabited with
Mae FlorGalido, with whom he has four children. He also accused
respondent of engaging in money-lending business5without the required
authorization from the BangkoSentralngPilipinas.
In his defense, respondent explained that he accepted Sps. Yap's case on a
25% contingent fee basis, and advanced all the expenses. He disputed the
August 11, 1995 letter for being a forgery and claimed that Sps. Yap
assumed to pay complainant's commission which he clarified in his July 16,
1997 letter. He, thus, prayed for the dismissal of the complaint and for the
corresponding sanction against complainant's counsel, Atty. Florencio B.
Gonzales, for filing a baseless complaint.6
In the Resolution7 dated February 16, 2004, the Court resolved to refer this
administrative case to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation. In his Report and
Recommendation8 dated October 10, 2008, the Investigating IBP
Commissioner recommended that respondent be suspended for one (1)
year from the active practice of law, for violation of the Lawyer's Oath,
Rule 1.01, Canon 1; Rule 7.03, Canon 7 and Rule 9.02, Canon 9 of the Code
of Professional Responsibility (Code). The IBP Board of Governors adopted
and approved the same in its Resolution No. XIX-2010-4539 dated August
28, 2010. Respondent moved for reconsideration10 which was denied in
Resolution No. XIX-2011-141 dated October 28, 2011.
After due consideration, We adopt the findings and recommendation of
the IBP Board of Governors.
The practice of law is considered a privilege bestowed by the State on
those who show that they possess and continue to possess the legal
qualifications for the profession. As such, lawyers are expected to maintain
at all times a high standard of legal proficiency, morality, honesty, integrity
and fair dealing, and must perform their four-fold duty to society, the legal
profession, the courts and their clients, in accordance with the values and
norms embodied in the Code.11 Lawyers may, thus, be disciplined for any
conduct that is wanting of the above standards whether in their
professional or in their private capacity.
In the present case, respondent's defense that forgery had attended the
execution of the August 11, 1995 letter was belied by his July 16, 1997
letter admitting to have undertaken the payment of complainant's
commission but passing on the responsibility to Sps. Yap. Clearly,
respondent has violated Rule 9.02,12 Canon 9 of the Code which prohibits a
lawyer from dividing or stipulating to divide a fee for legal services with
persons not licensed to practice law, except in certain cases which do not
obtain in the case at bar.
Furthermore, respondent did not deny the accusation that he abandoned
his legal family to cohabit with his mistress with whom he begot four
children notwithstanding that his moral character as well as his moral
fitness to be retained in the Roll of Attorneys has been assailed. The
settled rule is that betrayal of the marital vow of fidelity or 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.13 Consequently,
We find no reason to disturb the IBP's finding that respondent violated the
Lawyer's Oath14 and Rule 1.01, Canon 1 of the Code which proscribes a
lawyer from engaging in "unlawful, dishonest, immoral or deceitful
conduct."
However, We find the charge of engaging in illegal money lending not to
have been sufficiently established.1âwphi1 A "business" requires some
form of investment and a sufficient number of customers to whom its
output can be sold at profit on a consistent basis.15 The lending of money
to a single person without showing that such service is made available to
other persons on a consistent basis cannot be construed asindicia that
respondent is engaged in the business of lending.
Nonetheless, while We rule that respondent should be sanctioned for his
actions, We are minded that the power to disbar should be exercised with
great caution and only in clear cases of misconduct that seriously affect the
standing and character of the lawyer as an officer of the court and as
member of the bar,16 or the misconduct borders on the criminal, or
committed under scandalous circumstance,17 which do not obtain here.
Considering the circumstances of the case, We deem it appropriate that
respondent be suspended from the practice of law for a period of one (1)
year as recommended.
WHEREFORE, respondent ATTY. MARIANO R. PEFIANCO is
found GUILTY of violation of the Lawyer’s Oath, Rule 1.01, Canon 1 of the
Code of Professional Responsibility and Rule 9.02, Canon 9 of the same
Code and SUSPENDED from the active practice of law ONE (1)
YEAR effective upon notice hereof.
Let copies of this Resolution be entered in the personal record of
respondent as a member of the Philippine Bar and furnished the Office of
the Bar Confidant, the Integrated Bar of the Philippines and the Office of
the Court Administrator for circulation to all courts in the country.
SO ORDERED.
THIRD DIVISION
A.C. No. 7593, March 11, 2015
ALVIN S. FELICIANO, Complainant, v. ATTY. CARMELITA BAUTISTA-
LOZADA, Respondents.
DECISION
PERALTA, J.:
Before us is a Petition for Disbarment1 dated August 2, 2007 filed by Alvin
S. Feliciano (complainant) against respondent Atty. Carmelita Bautista-
Lozada (Atty. Lozada) for violation of Section 27,2 Rule 138 of the Rules of
Court.
The facts of the case, as culled from the records, are as
follows:chanRoblesvirtualLawlibrary
On December 13, 2005, the Court en banc promulgated a Resolution in
A.C. No. 6656 entitled “Bobie Rose V. Frias vs. Atty. Carmencita Bautista
Lozada”3 suspending Atty. Lozada for violation of Rules 15.03 and 16.04 of
the Code of Professional Responsibility, the dispositive portion of which
reads:chanRoblesvirtualLawlibrary
WHEREFORE, respondent Atty. Carmencita Bautista Lozada is hereby
found guilty of violating Rules 15.03 and 16.04 of the Code of Professional
Responsibility and of willfully disobeying a final and executory decision of
the Court of Appeals. She is hereby SUSPENDED from the practice of law
for a period of two (2) years from notice, with a STERN WARNING that a
repetition of the same or similar acts will be dealt with more severely.
Let copies of this Resolution be furnished all courts of the land, the
Integrated Bar of the Philippines, as well as the Office of the Bar Confidant,
for their information and guidance, and let it be entered in respondent's
personal records.
4
SO ORDERED.
On May 4, 2006, the Court denied with finality Atty. Lozada's motion for
reconsideration.5chanroblesvirtuallawlibrary
However, on June 5, 2007, in an action for injunction with prayer for
issuance of a temporary restraining order and/or writ of preliminary
injunction docketed as Civil Case no. 101-V-07 entitled “Edilberto Lozada,
et.al. vs. Alvin S. Feliciano, et al.,” where complainant was one of the
respondents, complainant lamented that Atty. Lozada appeared as counsel
for the plaintiff and her husband, Edilberto Lozada, and actively
participated in the proceedings of the case before Branch 75 of the
Regional Trial Court of Valenzuela City. To prove his allegation,
complainant submitted certified true copies of the minutes of the hearings,
dated June 12, 2007, July 3, 2007 and July 6, 2007, wherein Atty. Lozada
signed her name as one of the counsels, 6 as well as the transcript of
stenographic notes showing that Atty. Lozada conducted direct
examination and cross-examination of the witnesses during the trial
proceedings.7chanroblesvirtuallawlibrary
Complainant argued that the act of Atty. Lozada in appearing as counsel
while still suspended from the practice of law constitutes willfull
disobedience to the resolutions of the Court which suspended her from
the practice of law for two (2) years.
On September 12, 2007, the Court resolved to require Atty. Lozada to
comment on the complaint against him.8chanroblesvirtuallawlibrary
In her Comment9 dated November 19, 2007, Atty. Lozada explained that
she was forced by circumstances and her desire to defend the rights of her
husband who is embroiled in a legal dispute. She claimed that she believed
in good faith that her appearance as wife of Edilberto Lozada is not within
the prohibition to practice law, considering that she is defending her
husband and not a client. She insisted that her husband is a victim of grave
injustice, and his reputation and honor are at stake; thus, she has no
choice but to give him legal assistance.10chanroblesvirtuallawlibrary
On January 30, 2008, the Court referred the instant case to the Integrated
Bar of the Philippines for investigation, report and
recommendation.11chanroblesvirtuallawlibrary
In its Report and Recommendation12 dated March 9, 2009, the Integrated
Bar of the Philippines-Commission on Bar Discipline (IBP-CBD) found Atty.
Lozada guilty of violating Rule 1.01 & 1.02, Rule 18.01 of the Code of
Professional Responsibility and the terms of her suspension from the
practice of law as imposed by the Court. Thus, the IBP-CBD recommended
the disbarment of Atty. Lozada.
On May 14, 2011, however, the IBP-Board of Governors resolved to adopt
and approve with modification the report and recommendation of the IBP-
CBD such that it recommended instead that Atty. Lozada be suspended
from the practice of law for three (3) months.
RULING
We adopt the ruling of the IBP-Board of Governors with modification.
Indeed, this Court has the exclusive jurisdiction to regulate the practice of
law. When this Court orders a lawyer suspended from the practice of law,
as in the instant case, the lawyer must desist from performing all functions
requiring the application of legal knowledge within the period of
suspension.13chanroblesvirtuallawlibrary
Suffice it to say that practice of law embraces "any activity, in or out of
court, which requires the application of law, legal procedure, knowledge,
training and experience." It includes "[performing] acts which are
characteristics of the [legal] profession" or "[rendering any kind of] service
[which] requires the use in any degree of legal knowledge or
skill.”14chanroblesvirtuallawlibrary
In the instant case, Atty. Lozada's guilt is undisputed. Based on the records,
there is no doubt that Atty. Lozada's actuations, that is, in appearing and
signing as counsel for and in behalf of her husband, conducting or offering
stipulation/admission of facts, conducting direct and cross-examination, all
constitute practice of law. Furthermore, the findings of the IBP would
disclose that such actuations of Atty. Lozada of actively engaging in the
practice of law in June-July 2007 were done within the period of her two
(2)-year suspension considering that she was suspended from the practice
of law by this Court in May 4, 2006. It would then appear that, at the very
least, Atty. Lozada cannot practice law from 2006 to 2008. Thus, it is clear
that when Atty. Lozada appeared for and in behalf of her husband in Civil
Case No. 101-V-07 and actively participated in the proceedings therein in
June-July 2007, or within the two (2)-year suspension, she, therefore,
engaged in the unauthorized practice of law.
Atty. Lozada's defense of good faith fails to convince. She knew very well
that at the time she represented her husband, she is still serving her two
(2)-year suspension order. Yet, she failed to inform the court about it.
Neither did she seek any clearance or clarification from the Court if she can
represent her husband. While we understand her devotion and desire to
defend her husband whom she believed has suffered grave injustice, Atty.
Lozada should not forget that she is first and foremost, an officer of the
court who is bound to obey the lawful order of the Court.
Under Section 27, Rule 138 of the Revised Rules of Court, as amended,
willful disobedience to any lawful order of a superior court is a ground for
disbarment or suspension from the practice of
law:chanRoblesvirtualLawlibrary
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 willful disobedience of any lawful order of a superior
court, or for corruptly or willfully appearing as an attorney for a party to
a case without authority to do so. The practice of soliciting cases at law for
the purpose of gain, either personally or through paid agents or brokers,
constitutes malpractice.15
Atty. Lozada would have deserved a harsher penalty, but this Court
recognizes the fact that it is part of the Filipino culture that amid an
adversity, families will always look out and extend a helping hand to a
family member, more so, in this case, to a spouse. Thus, considering that
Atty. Lozada's actuation was prompted by her affection to her husband
and that in essence, she was not representing a client but rather a spouse,
we deem it proper to mitigate the severeness of her penalty.
Following the recent case of Victor C. Lingan v. Atty. Romeo Calubaquib
and Jimmy P. Baliga,16 citing Molina v. Atty. Magat,17 where this Court
suspended further respondents from the practice of law for six (6) months
for practicing their profession despite this court's previous order of
suspension, we, thus, impose the same penalty on Atty. Lozada for
representing her husband as counsel despite lack of authority to practice
law.
Disbarment of lawyers is a proceeding that aims to purge the law
profession of unworthy members of the bar. It is intended to preserve the
nobility and honor of the legal profession. While the Supreme Court has
the plenary power to discipline erring lawyers through this kind of
proceedings, it does so in the most vigilant manner so as not to frustrate
its preservative principle. The Court, in the exercise of its sound judicial
discretion, is inclined to impose a less severe punishment if, through it, the
end desire of reforming the errant lawyer is
possible.18chanroblesvirtuallawlibrary
WHEREFORE, premises considered, Atty. Carmelita S. Bautista-Lozada is
found GUILTY of violating Section 27,19 Rule 138 of the Rules of Court, and
is hereby SUSPENDED for a period of six (6) months from the practice of
law, with a WARNING that a repetition of the same or similar offense will
warrant a more severe penalty.

Let copies of this Decision be furnished all courts, the Office of the Bar
Confidant and the Integrated Bar of the Philippines for their information
and guidance. The Office of the Bar Confidant is DIRECTED to append a
copy of this Decision to respondent’s record as member of the Bar.

Atty. Lozada is DIRECTED to inform the Court of the date of her receipt of
this Decision, so that we can determine the reckoning point when her
suspension shall take effect.

This Decision is immediately executory.